Digest of Benefit Entitlement Principles Chapter 9 - Section 1

9.1.0 Authority

To be entitled to benefits, it is not enough to have contributed to the Employment Insurance (EI) fund. Claimants must also prove that no circumstances or conditions exist that could result in disentitling or disqualifying them from receiving benefits (EI Act 49(1)).

The legislation has always been intended to provide relief to insured persons who are involuntarily unemployed until they are able to find comparable employment (CUB 62318, CUB 76022). There are a number of provisions in the legislation that address these concepts, including a provision that requires claimants to apply for, accept and take advantage of job vacancies or other opportunities for suitable employment. More specifically, section 27(1) of the EIA indicates:

"A claimant is disqualified from receiving benefits under this Part if, without good cause since the interruption of earnings giving rise to the claim, the claimant:

1. has not applied for a suitable employment that is vacant after becoming aware that it is vacant or becoming vacant, or has failed to accept the employment after it has been offered to the claimant
2. has not taken advantage of an opportunity for suitable employment
3. has not carried out a written direction given to the claimant by the Commission with a view to assisting the claimant to find suitable employment, if the direction was reasonable having regard both to the claimant's circumstances and to the usual means of obtaining that employment, or
4. has not attended an interview that the Commission has directed the claimant to attend to enable the Commission or another appropriate agency:
   1. to provide information and instruction to help the claimant find employment, or
   2. to identify whether the claimant might be assisted by job training or other employment assistance"

Other provisions in the legislation require claimants to prove that they are capable of and available for work and unable to obtain suitable employment (EI Act 18(1)). For this purpose the Commission may require the claimant to prove that they are making reasonable and customary efforts to obtain suitable employment (EI Act 50(8)).

Generally, those claiming regular benefits are required to seek and accept all opportunities for suitable employment. Claimants are not expected to seek or accept employment that is not suitable.

The majority of this chapter deals with a claimant's expectations to apply for, accept, or take advantage of opportunities for suitable employment. Employment that is not suitable is defined in section 6(4) of the EIA. The elements of suitable employment as they relate to the issue of availability for work are discussed in chapter 10 of this Digest.

As will be discussed later in this chapter, claimants are also expected to explore and/or accept assistance in obtaining suitable employment, by carrying out written directions of the Commission, attending scheduled interviews, and attending any course, training program or employment activity to which they have been referred by the Commission or an authorized representative (EI Act 27(1)(c) and (d) and 27(1.1)). If a claimant fails to comply with any such written direction, fails to attend a scheduled interview or has their referral to a course, program or employment activity terminated by the Commission or authorized representative, they may be disqualified from receiving benefits (EIA 28(1)(b)).

9.1.1 Relevant questions

When dealing with a refusal of employment, there are 4 factors to consider:

1. whether there was a "refusal"
2. whether the employment was suitable
3. whether there was good cause for the refusal
4. the number of weeks of disqualification (if applicable)

A disqualification applies only in cases where there has been a refusal of suitable employment and where there was no good cause for the refusal.

9.1.2 Applicability

When the opportunity for work arises from the usual or last employer, it is sometimes difficult to make the distinction between a refusal of employment and voluntarily leaving employment. A detailed review of all the facts of the case must be conducted before a decision is made whether a refusal is considered a voluntary leaving, or if it is in fact a refusal of employment. Where the employment opportunity is with an employer for whom the claimant has never before worked, the case is clearly one of refusal of employment.

The word "employment" is defined as the act of employing or the state of being employed (EI Act 2(1)); it therefore refers to that relationship which exists between an employer and an employee. The inference is that the question will be one of voluntarily leaving employment where the employer-employee relationship could have been maintained without a break had the claimant accepted the opportunity to work; examples are the refusal to accept a renewal of a contract of employment, or to accept a transfer (EI Act 29(b.1)(i) and (iii)). Essentially, if the refusal results in a complete severance of the employer-employee relationship, the refusal will be considered under the principles of a voluntary leaving (Digest 6).

The issue is also one of voluntarily leaving employment where the claimant refuses to return to work following a gap, such as after a lay-off; upon settlement of a labour dispute; or at the end of a leave of absence without pay (EI Act 29(b.1)(ii)).

Occasionally, instead of immediately refusing an offer of employment, a claimant may decide to try it out. These cases are treated as voluntarily leaving employment if the claimant, after having accepted employment, decides to leave the job because the duties or the working conditions turned out to be unacceptable to them (FCA A-57-06, CUB 65058A, CUB 67121, CUB 67365).

Other than self-employment, the definition of "employment" is not restrictive, in the context of refusing employment. Any refusal to work in suitable employment for an employer, whether the employment is insurable, or whether it is in Canada or abroad, may lead to a 7 to 12 week disqualification. Although service in the Canadian Forces is employment, a refusal to enlist or re-enlist will not result in a disqualification.

If more than 1 opportunity of employment is refused, each refusal may result in a separate disqualification, even where such opportunities are with the same employer (FCA A-928-96, CUB 35473). However, in practice, a maximum of 2 disqualifications will be applied where several opportunities of employment are refused at the same time. What is to be considered is any refusal of employment which has occurred since the interruption of earnings giving rise to the claim for benefit, even when the refusal precedes the claim itself.

A claimant who, without good cause and since the interruption of earnings giving rise to the claim, has not carried out a written direction given to them by the Commission or an authority that the Commission designates, with a view to assisting the claimant to find suitable employment, will be subject to a disqualification. The same is true where a claimant has not attended an interview that the Commission or designated authority has directed the claimant to attend, to provide information and instruction to help the claimant find employment, or to identify whether the claimant might be assisted by job training (EI Act 27(1)(c) and (d)).

A claimant is also subject to a disqualification if the claimant has been referred to a course or employment activity and the Commission or designated authority has terminated the referral because, without good cause, the claimant has not attended or participated in the course or activity, and is unlikely to successfully complete it; the claimant has, without good cause, withdrawn from the course or activity, or the organization providing the course or activity; has expelled the claimant (EI Act 27(1.1)).

9.1.3 Proof

The legislation specifically stipulates that a claimant must prove that no circumstances or conditions exist that have the effect of disqualifying the person from receiving benefits (EI Act 49(1)(b)).

Where there is an indication that employment was refused in some way, it is up to the Commission to contact the employer to obtain all relevant details of the vacancy, offer or opportunity, as well as any action or inaction, on the part of the claimant in applying for or accepting the vacancy, offer or opportunity.

Once this is done, and if the vacancy, offer or opportunity appears suitable, it is then up to the claimant to provide evidence to support any contention that it was not suitable. It is also up to the claimant to show good cause for refusing the employment, if it was suitable.

The resulting decision will hinge on the balance of probabilities, in other words the claimant will be either disqualified, or free of disqualification based on consideration of all the claimant's circumstances.

[September 2019]