Digest of Benefit Entitlement Principles  Chapter 10 - Section 15

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10.15.0 Personal business

Rather than being inactive while waiting to hear about job applications, claimants sometimes become involved in activities which take up time during the day.

The time devoted to such work, intentions for the near future, the need for and urgency of the activities, and the efforts made to find work, are some of the main factors to consider in determining whether a claimant has proven they are available for work while engaged in such activities.

As a general rule, a strong presumption of non-availability arises when a claimant spends many hours a day on activities considered to be necessary or urgent. To rebut this presumption, claimants in this situation are required to show that their primary concern is finding employment, as evidenced by their efforts to find work.

10.15.1 Volunteer work

Volunteer work is commonplace in our society and as long as the hours involved are minimal, and there is no actual or eventual remuneration in exchange for the volunteer work, this is generally not an activity that would cast doubt on a claimant’s availability for work. However, a presumption of non-availability would arise if one is spending a significant number of hours completing volunteer work, especially if little or no time is left to seek employment. In these situations, it would be up to the individual to provide adequate evidence to rebut such a presumption Footnote 1 . In addition, the immediate or eventual remuneration for the services rendered would tend to cast doubt on the availability of the claimant Footnote 2 , as well on their unemployed status Footnote 3 .

It is also possible for a person to be taken on by an employer on an internship or trial basis and to receive no remuneration for the work performed during this period. The issue might arise as to whether such a practice is legal but, in any event, Employment Insurance benefits are not intended to provide compensation for the wages not paid in this type of arrangement. In order to prove availability for work such a claimant must be willing to continue to seek and accept suitable employment elsewhere, and must continue to make reasonable and customary efforts to obtain such employment Footnote 4 . In addition to a claimant’s availability, the question as to whether or not the claimant is actually unemployed, must also be examined in these types of cases Footnote 5 .

10.15.2 Building and repairs

A presumption of non-availability arises when the work undertaken to build or repair premises has an element of necessity, urgency or importance. This presumption is much stronger when the evidence indicates that the claimant is spending a greater number of hours at the work than in seeking employment Footnote 6 .

In cases where a presumption exists, the onus is on claimants to rebut it by showing that their primary concern is finding employment, that they would not hesitate to reduce their activities if an employment opportunity arises or even abandon their project if need be. Non-availability is evident in cases of claimants who have voluntarily separated from their employment specifically in order to devote more time to their activities, or have refused an employment opportunity for this reason.

For claimants who are engaged in building or repairing premises with the intention of setting up a profitable venture, it is not sufficient to show that they are available for work. They are also required to prove that they are unemployed while being engaged in these activities Footnote 7

10.15.3 Starting a business

For claimants who are engaged in preliminary work required before going into business or those who are about to start operating a business, the first question to determine is whether they are in fact unemployed Footnote 8 , while engaged in these activities. Being unemployed is not all that is required to remain entitled to benefits; availability for work other than for their business, must also be proven. When looking at both questions of whether the claimant is unemployed and available for other work while trying to set up a profitable venture, some of the factors to consider apply to both issues at the same time, especially with regards to the claimant's intentions and the amount of time devoted to the project. Often the two issues can be regarded as a single one and a decision made as to whether the claimant has proven to be unemployed and available.

A claimant's intentions are clear when the facts show a preoccupation with business preparations and no concern for the reasonable and customary efforts to find work as required by the legislation Footnote 9 . The presumption of non-availability will be even stronger if the evidence indicates that the claimant devotes many hours to the project Footnote 10 , or if this was the reason for voluntarily leaving Footnote 11 or refusing work.

Even though their availability may be beyond question, this does not mean that they are unemployed. Even workers who have full-time employment may at times make considerable efforts to find a better job, and this in no way makes them unemployed. The rules to be applied in determining when a claimant is unemployed are discussed in a separate chapter Footnote 12 .

In cases where only the claimant's unemployment status is the cause for the disentitlement, the disentitlement must cover full calendar weeks, since according to the legislation the question to determine is whether or not each of the weeks under consideration is a week of unemployment Footnote 13 . As for partial weeks, the legislation provides for a deduction to be made from the benefits payable for that week, in proportion to the income arising out of the business for that week Footnote 14 . It is often difficult, and sometimes perhaps impossible, to assess the income arising out of a business in the first few days of operation. For this reason, the practice is to consider the claimant as not available for those days, so that the deduction to be made becomes easily calculable.

10.15.4 Family business

It is not uncommon for an employed person to lend a hand in running a family business after working hours, and it seems reasonable that the assistance given would be increased during a period of unemployment. This situation is most frequent in cases where the claimant's parents own a farm or where the spouse operates a small business.

The first question to determine is whether a claimant's assistance can be compared to the services an employee would provide under the circumstances. Depending on the answer, claimants in this situation will be required to show not only that they are available for work, but also that they are unemployed. The latter issue is dealt with in a separate chapter Footnote 15 .

With respect to availability, claimants, as recipients of benefits from the public fund, are required to show that their primary concern is to find employment. The evidence adduced must be in the form of personal efforts to find work. A strong presumption of non-availability arises in cases of claimants who devote most of their time helping with the business rather than looking for employment Footnote 16 .

10.15.5 Jury duty and court orders

On occasion a claimant is called upon to perform jury duty, a service which is extremely important in our judicial system. The intent of the legislation is to allow those individuals to perform their civic duties and continue to receive employment insurance benefits Footnote 17 .

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 . . .

(c) engaged in jury service.

Engaged in jury service includes not only individuals who have been sworn in as members of a jury on a specific trial, but also those individuals who have received a general duty call in which they are formed in a large group of potential jurors who may later be selected to hear specific trials. Jury service also applies to a coroner's inquest.

A declaration of non-availability by a claimant or being engaged in jury service will not result in a disentitlement. A disentitlement related to capability or availability that is in effect when the claimant is engaged in jury service will be suspended for that period. However, these claimants must still fulfill all other provisions under the Act and Regulations.

Receiving a subpoena to appear as a witness at a criminal trial cannot be equated to jury duty Footnote 18 .

The conditions imposed by a court order will often prevent the claimant from establishing their availability for work. Such was the case where a court order was imposed on a claimant to undergo closed treatment in an establishment similar to a prison Footnote 19 , where a suspended sentence of imprisonment gave rise to a court order requiring that the claimant stay at home Footnote 20 and where following a serious criminal charge, a court ordered that a claimant be hospitalized so that his criminal responsibility could be evaluated Footnote 21 . In addition, a claimant who takes a leave of absence from employment to care for a child who is in the claimant’s custody pursuant to a court order would not be able to establish that they are available for work Footnote 22 . Likewise, a claimant who leaves employment in order to comply with a court order that they reside with the parent of a child while the parent is caring for the child, would also be unable to establish their availability for work Footnote 23 .

10.15.6 Running for office

Claimants are not normally considered to be available for work when running for an election in the near future, and while spending most of their time on the election campaign, especially in cases where they temporarily left their employment for this purpose. Employment Insurance benefits were not designed to provide compensation for the loss of wages in such a situation.

In the case of claimants who contend that they remain available and keep looking for work, even while organizing their election campaign, the personal efforts made to obtain work in the meantime, among other factors, will be used in determining the availability. If the claimant's willingness to accept work depends on the results of the election, then availability is not proven until the day after the election. In a particular case, it was determined that running for election, when included with other job search efforts, could be considered as a valid job search activity during the campaign Footnote 24 . However, in another case a claimant did not establish her availability for work during a 12 week period while running for City Council after she admitted that, had she had any job interviews during that time, she would have advised them that if elected, she would have to resign the employment Footnote 25 .

[ January 2014 ]

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