Digest of Benefit Entitlement Principles Chapter 10 - Section 1

10.1.0 Authority

The primary purpose of the Employment Insurance (EI) program is to provide temporary financial assistance to workers in case of involuntary unemployment. Simply having paid into the plan is not sufficient in order to be entitled to benefits (CUB 70549). A claimant must prove there are no circumstances or conditions that exist that have the effect of disentitling or disqualifying the claimant from receiving benefits (EI Act 49(1)(b)). There are 3 basic requirements in the legislation, which must be met in relation to a claimant’s availability for work (CUB 75971).

The legislation states that a claimant is not entitled to be paid benefits for any working day in a benefit period, for which the claimant fails to prove that on that day, the claimant was:

1. capable of and available for work
2. unable to obtain suitable employment (EI Act 18(1)(a))

In order to reinforce these 2 requirements, the necessity to personally seek employment was explicitly added in 1971, so that waiting passively for an offer of work is generally considered insufficient to prove availability (CUB 72119 and CUB 75031). Consequently the Commission may require the claimant to prove:

3. they are making reasonable and customary efforts to obtain suitable employment (EI Act 50(8))

These requirements are directly linked to the meaning of "suitable employment". Claimants are not required to be available for and seeking employment that is not considered suitable pursuant to section 6(4) of the EIA and EIR 9.002.

The legislation includes the following specific criteria that are used to determine whether an employment opportunity is suitable for a particular claimant (EIR 9.002):

1. the claimant’s health and physical capabilities allow them to commute to the place of work and to perform the work
2. the hours of work are not incompatible with the claimant’s family obligations or religious convictions
3. the nature of the work is not contrary to the claimant’s moral convictions or religious beliefs

These criteria will apply for the duration of a claimant’s benefit period, regardless of the length of time the claimant is unemployed or the number of weeks of regular benefits the claimant receives. Other factors that are taken into consideration when determining what constitutes suitable employment for a claimant are, the claimant’s previous occupation(s), wages, working hours and conditions, the terms of employment, commuting times, and labour market information.

Claimants are expected to make sustained job search efforts that are directed towards obtaining suitable employment. The legislation sets out specific criteria to be considered when determining whether the efforts the claimant is making to obtain suitable employment, are reasonable and customary. Those criteria include 9 activities that can be conducted to assist in obtaining suitable employment (EIR 9.001(b)):

1. assessing employment opportunities
2. preparing a resume or cover letter
3. registering for job search tools or with electronic job banks or employment agencies
4. attending job search workshops or job fairs
5. networking
6. contacting prospective employers
7. submitting job applications
8. attending interviews
9. undergoing evaluations of competencies

10.1.1 Applicability

Every person claiming benefits must prove they are available for work except for claimants who are entitled to benefits because; they are pregnant (EI Act 22(1)), they are caring for 1 or more new born children of the claimant or for 1 or more children placed with them for the purpose of adoption (EI Act 23(1)), they are caring for or supporting a family member who has a serious medical condition with a significant risk of death (EI Act 23.1(2)), or they are providing care or support to a family member who is critically ill or injured (EI Act 23.2(1)).

Furthermore, some claimants are considered to be available for work even though they may not in reality be available: those attending a course, program of instruction or employment activity to which they were referred by the Commission or designated authority (EI Act 25(1)), and those working in work-sharing employment (EI Act 24(1)). A similar provision applies to some situations unique to the fishing industry (EIR Fishing 9(3)).

For individuals claiming sickness benefits, the sole reasons they are not available for work must be due to their incapacity (EI Act 18(1)(b)).

10.1.2 Availability defined

Availability for work depends on a claimant’s willingness and ability to apply for, accept, take advantage of and actively seek all opportunities for suitable employment. It implies that the claimant is unable to obtain suitable employment and sincerely wishes to return to the labour market as soon as possible, as demonstrated by an active search for employment (EI Act 18(1)(a), EI Act 50(8)).

For the above principles to apply, an individual must first be capable of work. Being capable of working refers to the physical strength and/or experience required to perform the duties of employment in an occupation that is considered to be suitable under the legislation (EI Act 18(1)(a); CUB 70880, CUB 77047A).

While being available may imply that an individual sincerely wants to work, a willingness to work is not synonymous with being available for work. Availability for work is primarily a subjective matter which must be considered in light of a claimant's intentions. This can be done by examining statements, actions and restrictions, as well as the concern shown by an individual towards finding employment (CUB 55457B, CUB 72881). However, it must also be viewed objectively by examining a person's prospects of employment in relation to any restricting circumstances, whether created deliberately or not (CUB 63214). This includes any limitations caused by partial incapacity, transportation difficulties and personal or family constraints (CUB 70961).

A claimant is not required to accept a job which is recognized as unsuitable. To determine if a particular employment is suitable, reference should be made to the legislative criteria that define suitable employment (EI Act 6(4); EIR 9.002).

10.1.3 Guiding questions

When determining whether availability for work has been proven, the following questions will be helpful:

1. Does the claimant's attitude reflect a sincere desire to work or, conversely, the lack of concern of a person not really seeking employment
2. Are there any circumstances which obstruct the claimant's desire to work
3. Is the claimant's willingness to work subject to expectations which greatly reduce chances of obtaining employment
4. Is the claimant unable to obtain suitable employment despite their personal efforts to find work

The circumstances surrounding a separation from employment, personal efforts made to find work and the interest shown when a new job opportunity arises, are all factors that must be considered in assessing a person's attitude towards seeking and accepting employment.

Factors which impact a claimant’s desire to work include any circumstances beyond the claimant's control, such as physical limitations or family constraints. These circumstances may be distinguished from other restrictions arising out of a claimant’s own choice, such as when a person is simply not prepared to accept certain working conditions which would be considered suitable. Claimants who do not prove they are available for work, will be disentitled from receiving benefits.

10.1.4 Imposition of and duration of disentitlement

When a claimant fails to prove they are capable of and available for work, and unable to obtain suitable employment, the claimant is disentitled from receiving benefits from that date until the claimant can prove that the circumstances preventing them from being available no longer exist. This includes situations where the claimant fails to prove they are making reasonable and customary efforts to obtain suitable employment (EI Act 18(1)). Such a disentitlement can be imposed concurrently with another disentitlement for a separate reason, and can also be imposed at the same time as a disqualification.

A disentitlement for non-availability, like any other disentitlement, starts and ends on 1 of the 5 working days between Monday and Friday. Any Statutory Holiday falling between Monday and Friday is still considered to be a working day. It is not possible to disentitle a claimant for a half-day, nor can extenuating circumstances reduce the length of a disentitlement (EI Act 20, EIR 32; CUB 77075).

Once a condition of entitlement, such as availability for work, is not met, an indefinite disentitlement is imposed as of that working day (EI Act 50(1)). If the claimant is no longer available for work as of a Saturday or a Sunday, then the indefinite disentitlement is imposed as of the following Monday. For example, if a claimant leaves his home area for the purpose of a vacation on Saturday, May 25, 2019 the indefinite disentitlement would be imposed as of Monday, May 27, 2019.

An indefinite disentitlement can terminate only on the working day before the day the condition of entitlement is met. If the same claimant returns from his vacation and is available for work as of Wednesday, June 5, 2019, the disentitlement would terminate on Tuesday, June 4, 2019, and benefits would become payable as of Wednesday, June 5, 2019.

A disentitlement for non-availability can also be imposed for a definite period of time if it is known when the condition resulting in disentitlement ended.

No benefits can be paid for any working day of disentitlement. If a claimant is disentitled for a day in the waiting period, one-fifth of the weekly rate of benefit is carried forward and deducted during the first 3 weeks in which benefits become payable (EI Act 20(1)). If the working day of disentitlement occurs after the waiting period has been served, one-fifth of the weekly rate of benefit is deducted from benefits payable for that week (EI Act 20(2)).

A disentitlement that covers a full week (Monday to Friday) is not considered to be a week of benefits paid and therefore does not, by itself, reduce the potential number of weeks of benefits that could be paid in a benefit period. Any week in which at least 1 dollar is paid, counts as a week of benefits paid, and reduces the total number of weeks potentially payable.

[September 2019]