EI decision denying Employment Insurance benefit where not available for work during flight ban

You received an EI decision denying retroactive Employment Insurance benefit for a time where you were away from Canada and prevented from re-entry due to a government decision to suspend air travel, your return flight was cancelled and you had to dip into your savings instead. Is there a basis for reconsideration/appeal? Unlikely if you were not applying for jobs while outside of Canada, were not “available” for work, and no exception applies.

The first step in the appeal route following a decision is to apply for reconsideration, which addresses issues of entitlement or qualification. Entitlement includes, but is not restricted to such matters as:

· Availability for work

· Absence from Canada

Section 37(b) of the Employment Insurance Act (S.C. 1996, c. 23) states that a claimant is not entitled to receive benefits for any period during which the claimant is not in Canada, unless an exception applies. Here is a narrow list of exceptions re being out of Canada:

• to undergo medical treatment not readily available in the claimant's area of residence

• for up to 7 days, to attend a funeral of a member of the immediate family or of a close relative

• to accompany, for up to 7 days, a member of the immediate family who is ill, to a medical facility, provided the treatment is not readily available in the family member's area of residence

• for up to 7 days, to visit a seriously ill or injured immediate family member

• for up to 7 days, to attend a bona fide job interview

• for up to 14 days, to conduct a bona fide job search

• to attend training approved by an authority of the Commission

Unless an exception is met, absence from Canada purportedly automatically disentitles a claimant from benefits, although I note some ambiguity between this statement, as it is on the government website, and the Digest of Benefit Entitlement Principles.

The Digest of Benefit Entitlement Principles Chapter 10 – Section 11 under 10.11.0 Absence from home states that “Absence from home may suggest that a claimant is not available for work. This presumption could be stronger or weaker, depending on the reason for the absence.” Among reasons for absence is “out of Canada”. It further states re claimants “…nor will their absence from home automatically make them unavailable for work.” One might seize upon the word “presumption”. A presumption is, after all, rebuttable, and it is the idea of rebutting the presumption a claimant might work with.

An instructive case is BK v. Canada Employment Insurance Commission, 2020 SST 961 CanLII. In this case, claimant left Canada on a personal vacation on November 17, 2019, and was unable to return to Canada due to the COVID-19 pandemic. Claimant had a return flight scheduled for April 7, 2020, but the airline cancelled it. Claimant had not looked for work while outside of Canada.

The Commission decided that claimant was not entitled to EI benefits while she was outside Canada. The Commission imposed two disentitlements: one for being outside Canada and the other for ‘failing to meet the availability requirements’ during her absence.

In terms of availability for work, the Tribunal looked at (1) whether claimant made “reasonable and customary” efforts to find a suitable job, and (2) whether claimant demonstrated that she was “capable of and available for work” but were not able to find a suitable job.

First, re reasonable and customary efforts to find a job, the regulations list nine search activities, including three examples named in BK:

· Assessing employment opportunities

· Contacting employers who may be hiring

· Applying for jobs

In the BK case, the Tribunal found that the claimant was not doing enough to try to find a job since she was “not looking for work” while she was outside of Canada. One should note this was not disputed by the claimant. The Tribunal concluded that the claimant had not made reasonable efforts to find a job because “she made no effort to assess employment opportunities or apply for jobs while she was outside of Canada”.

However, it is common knowledge amongst the employment bar that most employers do not wait more than 4 weeks for someone to start. Therefore, some potential claimants might view applying for jobs while they were abroad and a flight ban was in effect as damaging their opportunities with prospective employers or even exposing them to a potential breach of contract situation since they may not have been able to deliver on an accepted offer, absent a remote job opportunity which may or may not have been appropriate in their field.

The other aspect considered in BK is whether a claimant was “capable of and available for work”. In this regard, claimant has to prove three things:

(1) Claimant wants to go back to work as soon as a suitable job is available

(2) Claimant has made efforts to find a suitable job

(3) Claimant has not set personal conditions that might unduly limit her chances of going back to work.

In BK, the Tribunal found claimant did demonstrate that she “wanted” to go back to work. However, re making efforts to find a suitable job, the Tribunal held claimant did not meet this factor. This is because she was not looking for work while outside of Canada. Claimant’s representative argued that the situation was out of the claimant’s hands – she was dependent on the airline to schedule her return flight and she tried two or three times to book a flight back to Canada but each time the airline cancelled her ticket. Nonetheless, the Tribunal took a literal interpretation of the word “availability”.

Finally, in applying the third part of the test, the Tribunal found that the claimant unduly limited her chances of returning to work because she remained outside of Canada and that “this personal condition limits her chances of going back to work”. The Tribunal stated:

“[32] I recognize the particular circumstances resulting from the COVID-19 pandemic are exceptional. However, the law states that the objective question of availability cannot depend on the particular reasons for the restrictions on availability, even if they may evoke a sympathetic concern.

[33] The Claimant may have the desire to return to work in Canada. However, there is no evidence that she has made any efforts to find suitable employment. The Claimant does not dispute the fact that she cannot return to Canada within 48 hours of receiving a job offer because of her difficulty in arranging a flight back to Canada.”

The question of ‘availability’ referred to in BK is found in Vezina v. Canada (Attorney General) 2003 FCA 198 (CanLII):

“[1]…As this Court stated in Attorney General of Canada v. Bertrand, A-613-81:

The question of availability is an objective one – whether a claimant is sufficiently available for suitable employment to be entitled to unemployment insurance benefits – and it cannot depend on the particular reasons for the restrictions on availability however these may evoke sympathetic concern. If the contrary were true, availability would be a completely varying requirement depending on the view taken of the particular reasons in each case for the relative lack of it.”

For these reasons, the BK case suggests the prospects for a successful reconsideration (or subsequent appeal to the Social Security Tribunal) in similar circumstances and claiming back EI benefits retroactively for having to dip into one's savings is likely “low”.

It appears that there were some arguments that were never made or tested in BK. For example, whether the Tribunal’s interpretation of the word “availability” imputes the decision to remain outside of Canada to the individual, whereas there is an argument to say this decision was mandated by the government, and that if a claimant applied to jobs outside of Canada, failure to show up for work might have put the individual in a breach of contract situation should claimant have accepted an offer with no ability to begin the job in Canada during the flight ban, absent a remote job opportunity. Needless to say, some jobs cannot be performed remotely.

It might also seem unreasonable that a claimant’s ability to claim EI retroactively might depend on a definition of availability that, during the flight ban, may have seemed unreasonable if not impossible to have fulfilled. The prospects of success in these reconsiderations might appear quite low given the BK case. At the same time there are arguments that have yet to be tested.

This blog has summarized the case of BK v. Canada Employment Insurance Commission in the EI context but does not constitute legal advice and is not intended to be a summary of the law relating to EI reconsiderations. If you have an employment-related question, it is best to contact a lawyer. Please do not hesitate to reach out for a consultation: colin@cuttresslaw.com