Digest of Benefit Entitlement Principles Chapter 10 - Section 2

10.2.0 Proof

Entitlement to benefits does not depend solely on the fact that one states they are available for work, but rather on proving it (CUB 56308, CUB 70577, CUB 76016). The legislation clearly specifies claimants must be able to prove their availability for work (EIA 49(1)(b), EIA 50(8)). As the onus of proof is on the claimant, it is not up to the Commission to produce evidence that a claimant is not available for work, before issuing a notice of disentitlement.

An argument that another person was considered entitled to benefits in a similar situation is not relevant. If another claimant in a similar situation was granted benefits in error , it does not exempt other claimants from proving their own availability for work. Similar reasoning would apply to a contention that a claimant collected benefits the year before under identical circumstances. Availability must be proven on a day-to-day basis (Digest 10.1.4) and past decisions, whether or not correct, do not give a claimant the right to current benefits.

10.2.1 Evidence of non-availability

A claimant who admits not being available for work does not, of course, meet the availability requirements under the act. Non-availability is also evident where a situation prevents a claimant from accepting any work (CUB 70563, CUB 75165, CUB 79516, CUB 76947). Whether or not the admission of non-availability is due to limited knowledge of the law, it remains valid if it actually reflects the claimant's frame of mind (CUB 75914).

No matter how valid the reason for being unavailable, only those rights granted by legislation may be recognized. The receipt of benefits depends on evidence that the claimant is available for work, not on the reason for being unavailable.

Extenuating circumstances, the claimant's good faith, financial need, sympathetic situations, errors by Commission staff, or even the fact that the Commission did not warn the claimant in advance to expand their job search, have no impact on the requirement of proving availability for work, nor can it shorten the period of disentitlement (FCA A-686-93; FCA A-652-93).

10.2.2 Mere statement accepted

While there is nothing that prevents the Commission from requesting more convincing evidence (EIA 50(8)), a brief statement of availability may be accepted at face value and regarded as sufficient proof, provided no restrictions exist in relation to one's declared willingness to accept work or one's employability within the labour market.

Whether the claimant has just become unemployed or several months have elapsed, statements which indicate a lack of interest in making the necessary efforts to become re-employed as soon as possible are indications of non-availability. Such statements introduce doubts rather than clarify a doubtful availability. An example of such statement is that of a claimant who puts the responsibility of finding work on the Commission. Another example is that of a person who refuses to disclose suitable arrangements made regarding personal or family obligations which might prevent them from looking for work.

Any time an agent is in contact with a claimant on regular or fishing benefits, the claimant’s availability should be reaffirmed. Depending on the information the claimant provides, they may have to provide a detailed list of the efforts made to find work (EIA 50(5), EIA 50(8)) and whether they have, without their own knowledge, imposed any restrictions that may result in difficulty obtaining employment.

10.2.3 Presumption of non-availability

Presumption of non-availability refers to the natural inference which arises from a confirmed fact which casts doubt on a claimant’s availability for work. Where a particular situation may initially cast doubt on a claimant’s availability, this would not be the case where, despite the claimant’s situation, their actions or behaviour strongly indicate their intent is to become re-employed. A presumption of non-availability arises whenever the claimant does not act as a reasonable person who is desirous of working would, under similar circumstances. A claimant’s availability is also questionable when the reason given for voluntarily leaving a job appears more of a personal reason that affects the employee’s availability to work.

An example would be an employee who, after numerous years of service with the same employer, terminates employment because of difficulties concerning baby-sitting arrangements, but a few weeks later alleges to be again available for work after making new child care arrangements. Although a claimant in this situation may not be disqualified for voluntarily leaving their employment, they would be subject to a disentitlement from benefits for failing to prove availability for work, until new child care arrangements were made. Once the barrier to being available no longer exists, benefits could become payable (FCA A-479-94; FCA A-736-95; CUB 71883).

On the other hand, no such presumption arises when an employee leaves employment by reason of poor health and contends to still be capable of less strenuous duties. In this case, the only issue is whether that person may be considered capable of and available for work despite the partial incapacity. A presumption of non-availability or incapacity would arise if the duties that person claims to be still capable of performing, were the same or very similar to those required in the employment left. In this case, the reason given for leaving would appear incompatible with the leaving itself.

Numerous actions can lead to a presumption of non-availability. They may include: voluntarily leaving employment for a reason incompatible with the concept of being available; requesting to be laid off in lieu of another employee or failing to make use of bumping rights (CUB 79725); requesting a leave of absence (CUB 72299) or failing to return to work upon expiry of such leave, for any number of reasons ; moving to an area where there are no employment opportunities, even though there was no necessity for doing so; voluntarily retiring from employment even though there was no necessity or desire to do so (CUB 77508, CUB 78523).

Additional examples are: neglecting to avail oneself of an employment opportunity which would offer valuable benefits, or refusing an offer of suitable employment (FCA A-1692-92; CUB 40393), particularly after several months of unemployment; acting in such a way as to deliberately get dismissed; losing employment by reason of numerous absences due to poor health; being in receipt of an allowance or benefit from the employer which one would lose if employment was accepted at other premises; giving outward signs of a person whose physical condition is greatly impaired; making no personal efforts to find work; going away from one's place of residence for a reason other than looking for work; attending a full-time course of training or instruction not referred by the Commission or delegated authority (FCA A-566-04; CUB 69536, CUB 72250, CUB 79278, CUB 80001); or not going to work while there is a labour dispute.

A mere statement that the claimant is available for work falls short of the proof required and is never acceptable as evidence of availability where a presumption of non-availability has arisen (CUB 75171). That presumption can of course be rebutted by more convincing evidence. It is up to the claimant to provide plausible explanations to that end such as providing specific details to clarify availability when requested to do so, or demonstrate a sincere desire to work by conducting an ongoing job search (FCA A-512-07, CUB 67165; CUB 78220, CUB 71781).

10.2.4 Expiry of work permit

All foreign workers authorized to enter Canada, do so as temporary residents, visitors, students or workers. When they enter Canada they are given temporary resident status for a limited period of time.

In the majority of cases, if they wish to work in Canada, they are required to obtain a work permit issued by Immigration, Refugees and Citizenship Canada (IRCC) before they begin or continue to work in Canada. This work permit is also referred to as an Employment Authorization.

Generally, foreign workers can only demonstrate availability to accept work if they possess a work permit which allows them to work in Canada. Temporary foreign workers who are not eligible to extend their stay in Canada, beyond the expiry of their work permit, cannot demonstrate availability for work.

However, a claimant who does not currently possess a work permit is not automatically considered unavailable for work. In some cases, the claimant may be able to obtain a work permit as soon as employment is secured, because of the type of work they perform, or because of the individual’s skills. Consequently, the lack of a work permit is not the only factor to be considered when determining availability. The Commission must take into account all factors normally considered when determining a claimant’s availability.

10.2.4.1 Open work permit

Temporary foreign workers who have an open work permit are allowed to accept employment and to work for any employer during the period specified on the work permit. An open work permit can only be granted once the individual has received first stage approval (approval in principal) of their application for permanent residence in Canada. For example, under the Post-Graduation Work Permit Program international students could obtain an open work permit with no restrictions on the type of employment and no requirement for a job offer. The duration of the work permit can be up to 3 years.

A claimant whose work permit has expired must apply to have it renewed before continuing to work in Canada. It is the claimant’s responsibility to apply for an extension before their current work permit expires. In cases where a claimant’s work permit has expired, and they provide proof that, before the expiry date, they applied to have it extended, the availability of that claimant will be assessed in the normal manner. A claimant cannot prove that they are available for work if their work permit has expired and they did not apply for an extension, prior to the expiry date (CUB 80771). These claimants will be subject to a disentitlement until such time as a new work permit has been issued.

10.2.4.2 Non-renewable work permit

Foreign workers with non-renewable work permits are not entitled to extend the duration of their stay in Canada. These types of permits are issued to workers in the Seasonal Agricultural Program. These workers are issued a work permit that is valid for a specific period of time (usually 8 months) which normally corresponds with the agricultural season. This type of permit is non-renewable, therefore, once the permit expires, the worker must leave Canada. They cannot be considered available for work regardless of whether or not they state they are willing to seek work, and that they would not refuse any employment opportunities that arise.

10.2.4.3 Restricted to one employer

A person whose work permit includes a restriction that only allows them to work for a specific employer, is not normally considered to be available to accept work, and may be disentitled from collecting benefits. However, the simple fact that the work permit restricts the worker to one employer is not the only factor to be considered when determining the claimant’s availability.

It is important to fact find and take all factors into consideration before determining that a foreign worker is unavailable because their work permit restricts their employment to one employer. Before making a determination, it is necessary to obtain a declaration from the claimant regarding their availability. In addition, the claimant must agree that once they receive an offer of employment from a new employer, they will contact IRCC and apply to have the restriction on their work permit removed (CUB 63940).

10.2.4.4 Expired work permit

The availability of a claimant who holds a valid work permit, must be assessed based on their individual circumstances, taking into consideration all the terms of their work permit. When a claimant indicates they are available for work, and there is no issue with the work permit, or any contradictory evidence on file concerning the claimant’s availability, entitlement to benefits must be considered the same as for any other claimant.

Once the work permit has expired, if the claimant cannot show that they applied for an extension prior to the expiry date, the claimant no longer has any status in Canada. In these situations, the claimant cannot prove they are available for work, and a disentitlement is warranted (CUB 62726). If the claimant proves they applied for a new work permit prior to the expiry of the previous one, availability would be considered the same as for any other claimant (IRCC website).

10.2.5 Subjective considerations

A person's intentions may be determined by words and actions. Actions often speak louder than words, and initial verbal statements should certainly be given more weight (FCA A-500-01; CUB 67726).

In fact, a person who is not really looking for work will not always say so. Unwillingness to work is sometimes disguised by undue restrictions which make it very difficult to find work and is characterized by a passive attitude toward one's responsibility in looking for work. The circumstances surrounding a voluntary separation from employment and a failure of claimants to make themselves available for new job opportunities are other indications of non-availability, where the reasons given may appear to be an excuse for not wanting to work.

This type of situation becomes a question of credibility and must be decided on the balance of probabilities. Where the claimant's actions are not consistent with being available and the statements made lack credibility, a disentitlement may be imposed. As previously mentioned, under the legislation, the onus of proving availability lies with the claimant (CUB 76016, CUB 77869). Proof beyond any reasonable doubt is not required, but rather the evidence must lead the adjudicator to believe that the claimant is available rather than tend to indicate the contrary.

It is erroneous to believe a disentitlement to benefits may not be imposed until the claimant has turned down a suitable job offer. On the other hand, the absence of a job refusal or good cause for not accepting an offer of suitable employment, would not result in a denial of benefits. The claimant must show that they are sincerely attempting to put an end to the period of unemployment as quickly as possible, and that the labour market situation is unfavourable, despite one's willingness to work, ability and skills. The best evidence that can be provided to this end is a detailed account of one's personal efforts made in all areas of the labour market in which there is a reasonable hope of obtaining suitable employment (FCA A-598-03, CUB 58986). There are no legislative provisions which govern the number of applications that must be made, or the format to be used for a claimant's record of job searches. The legislation only requires that a claimant be able to prove they are making reasonable and customary efforts to obtain suitable employment (EIA 50(8); CUB 73580, CUB 79043). Availability must be examined objectively in light of the claimant’s intentions, as shown by their efforts, and in light of the possibilities of employment in the kind of work sought and the region where they reside or are seeking work (CUB 76310, CUB 76450).

10.2.6 Objective considerations

Canadian labour market information is available through a wide variety of internet and other media sources, and details on employment opportunities can be obtained quite easily. Where the required information has not been reviewed, it is difficult to know whether reasonable employment opportunities exist. As such, a disentitlement for non-availability would be difficult to support, particularly if the claimant's expectations do not appear unreasonable (CUB 51749). A simple assumption that employment opportunities are limited to some extent since the claimant has made specific demands, is not enough to support a finding that their expectations are unduly limited (CUB 52209).

Where the labour market information regarding employment opportunities is inadequate but the claimant's expectations appear very restrictive in nature, although they might not be qualified as extreme restrictions, the claimant should be advised that they must seek and accept employment that is consistent with the legislative definition of suitable employment (CUB 54389). This would include the requirement to seek and accept less favourable earnings and occupations, particularly if a reasonable period of time had already been granted to allow the claimant to restrict their availability for work (CUB 70715). If the claimant disregards this advice and chooses to neither seek nor accept such work, assuming there is such suitable employment available for the claimant in the labour market, the claimant is subject to a disentitlement for non-availability (Digest 10.4.2, Digest 10.4.3.1, Digest 10.5.1, Digest 10.6.1).

Finally, in cases where the demands appear to be unduly restrictive or cast doubt on one's interest in seeking employment or their desire to find work as quickly as possible, a finding that availability has not been proven may be proper, even in the absence of detailed labour market information. It will be up to the claimant to remove those limitations, and prove their availability and willingness to work (CUB 68636, CUB 70133).

The above principles also apply to a claimant whose restrictions arise out of a real constraint, such as personal or family obligations or lack of transportation, rather than mere personal restrictions. Should the restrictions imposed be so serious as to make employment opportunities virtually non-existent, then it will be up to the individual, to find a solution that will make it possible to accept any suitable employment opportunity that may arise. Only then could they become entitled to benefits.

[September 2019]