Digest of Benefit Entitlement Principles Chapter 10 - Section 11

10.11.0 Absence from home

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. The following are situations which frequently come into play when considering a claimant’s availability while away from their home or area:

Claimants are not required to obtain permission from the Commission before leaving their home area, nor will their absence from home automatically make them unavailable for work. On the other hand, simply advising the Commission before leaving, or the fact that no job opportunity arises during their absence, does not automatically mean that claimants will be considered available. Decisions must be made based on all of the individual claimant’s circumstances.

10.11.1 Visiting family or friends

To go away for a few days to visit close friends or family is a normal occurrence in our society. As far as the legislation is concerned, weekend trips are not an issue. What the legislation does stipulate, however, is that a claimant must be available for work each day, from Monday to Friday (EI Act 18(1)(a); EIR 32; CUB 77075).

General availability will not be questioned for a short occasional absence (within Canada) of 2 days or less, provided there are no indications that the claimant is not actually available (Digest

In cases where an effort has been made to inform the Commission before leaving the area, arrangements have been made to be reached without delay, and the claimant is able to return within 24 to 48 hours should an employment opportunity arise, an absence of up to a week may be accepted.

For longer absences, however, the claimant's availability in this passive sense cannot be regarded as adequate. This is because, throughout their claim, claimants are expected to be making reasonable efforts to search for employment and are not exempt from this obligation while away from home (CUB 64171, CUB 79737A).

10.11.2 On vacation

Leaving home to take a vacation is in direct opposition to the concept of availability. Regardless of the area visited or the duration of the trip, a claimant on vacation fails to prove availability for work (CUB 58712, CUB 76104, CUB 79700).

Even claimants who before leaving, have made arrangements to be reached immediately if a job opportunity arises, or those who have advised the office before leaving, will be considered not available. The purpose of the legislation is to provide benefits to qualified claimants who devote their time to conducting a reasonable and customary job search (EI Act 50(8); EIR 9.001).

The above concept also applies when the claimant goes on vacation during a period of shutdown or lay-off from their employment.

10.11.3 Looking for work

An absence from home for the sole purpose of exploring job opportunities in another area is consistent with the concept of being actively available for work. Unless the reason for the absence is questionable, claimants in this situation will be considered available for work.

To prove availability, especially in cases where the absence is for a long period, claimants may be requested to provide a list of the job search efforts made, including names of employers contacted, and other relevant information (EI Act 50(8); CUB 67490). Vague or unsatisfactory lists could result in the denial of benefits (CUB 60861A, CUB 71474).

10.11.4 Sickness or death in family

There is no full exemption from the requirement of proving availability when a claimant leaves their home area to be near a sick relative. Nevertheless, availability may be accepted as proven where such an absence is for 1 week or less. Thus, if it is clear that the claimant has made arrangements to be reached without delay in the event of an employment opportunity, and is ready to return home within 24 hours, or at the most, 48 hours, availability will be considered proven. If the absence is for more than a week, the claimant may become subject to a disentitlement as of the eighth day of the absence, if they are not fully available and making reasonable efforts to find work (CUB 74009, CUB 79834). Additional information must be obtained in order to assess the claimant’s continued availability for work, such as:

Claimants may also be asked to provide details of their job search efforts since leaving their home area.

In the case of a sickness or death in the family the claimant may be considered to be available during an absence of up to 7 days, to attend the family member’s funeral, if arrangements have been made to be reached without delay. When the absence extends beyond 7 days, the claimant may become subject to a disentitlement as of the eighth day of their absence. Each situation must be assessed individually, based on the specific facts. Of course, availability is not proven in such a situation, if the claimant is unable or unwilling to return home within a reasonable period of time, upon being made aware of an employment opportunity. These principles also apply to a claimant who has to leave work for this reason (CUB 72198).

10.11.5 Staying at the cottage

Spending time at a cottage for part of a period on claim does not necessarily amount to taking a vacation. It is not uncommon for working individuals to commute from their cottage to their place of employment. However, when in receipt of EI benefits, a claimant is not exempted from searching for employment if they choose to spend time at their cottage. A presumption of non-availability may arise when the daily commuting time from the cottage to the area in which the claimant is expected to look for suitable employment is more than the claimant’s normal commute to work (Digest 10.9.0). The availability may also be in question if: the claimant stays at the cottage almost all the time; they cannot be contacted by telephone; they have made no efforts to obtain employment; or they are unwilling to accept work until they return from the cottage (CUB 67726).

All of these situations should be examined in light of the principles of "Immediate availability" as described in section of this Digest.

10.11.6 Hospitalization

It is clear that claimants in hospital cannot prove they are available for work. Any statement to the effect that they are still able to work is irrelevant. The only question to consider is their possible entitlement to sickness benefits.

A presumption of non-availability and incapacity does not necessarily exist with respect to the few days immediately preceding an individual’s admission to hospital. It is not uncommon for people to be available for and able to work up to the day of admission. Claimants who do not seek work while awaiting a call from the hospital for confirmation of a date for admission fail to prove they are available for work.

A claimant may be considered available for work on the day they are released from hospital, if they can show they were available for at least half of that day. This would also apply to the day of admission if the claimant was able to work up to that point in time.

10.11.7 Incarceration

Whether or not they claim to be available for work, claimants are not entitled to receive benefits for any period during which they are an inmate of a prison or similar institution (EI Act 37(a)).

Disentitlements for being an inmate of a prison or similar institution include periods of pre-trial and post-trial custody, as well as the following situations:

If during a period a claimant was incarcerated, benefits were obtained fraudulently by a third party, without the claimant’s knowledge or consent, the third party would be responsible for repayment of the resulting overpayment (FCA A-231-08).

A disentitlement for being an inmate of a prison or similar institution will not apply if a claimant can establish that they have been granted parole, day parole, a temporary absence, or a certificate of availability to seek and accept employment in the community (EIR 54). Permission to be absent must be actually granted. The fact that it could have been granted if work had been available, is not sufficient. In addition, even if a temporary absence had been granted the claimant must then be physically absent from the institution for the disentitlement not to be imposed.

Like any other person claiming regular benefits, claimants on parole or on an approved temporary absence must also prove they are available for work, including being generally available for all hours of employment that are available in the labour market. Hours of work outside of day time hours that cannot be legally accepted by those on day parole may not be considered as suitable. All cases must be determined based on their own facts.

Neither a disentitlement for being an inmate nor one for non-availability for work is appropriate if, on the working day of arrest, or on the working day of release from custody, the claimant is available for work for at least half of that day.

10.11.8 Out of Canada

Absence from Canada automatically disentitles a claimant from benefits (EI Act 37(b)) unless the reason for the absence falls within those prescribed in EIR 55 as follows:

In most cases, a claimant cannot combine any of the above mentioned exceptions, to receive benefits for 2 or more periods of 7 or 14 days, consecutively. However, in cases where a claimant is out of the country to visit a relative who is seriously ill or injured, and during their absence from Canada, that family member passes away, the claimant may benefit from the exceptions under EIR 55(1)(b) & (d), and potentially be entitled to benefits for up to 14 days while out of the country (FCA A-304-07, CUB 68174). Calculation of the 7 or 14 day period

In situations where the claimant meets 1 of the relief conditions under EIR 55(1), calculation of the 7 or 14 days for which benefits will be allowed, begins the day after the day the claimant leaves Canada. The day of departure is not counted, regardless of the time of departure. Should the claimant return before the end of the 7 or 14 days that could have been allowed, the last day counted is the day the claimant returns to Canada, regardless of the time of their arrival.

Beyond the prescribed time frame a disentitlement is applicable from the eighth or fifteenth day of the absence from Canada, as appropriate (CUB 75755, CUB 76729). As previously indicated, payment for up to 14 days while out of the country may be allowed if the claimant is visiting a relative who is seriously ill or injured, and during their absence from Canada, that family member passes away.

Example: a claimant left Canada on Tuesday, March 19, 2019 to visit her father who was seriously ill, and who passed away on the following Tuesday, March 26, 2019. The claimant then returned to Canada on Monday, April 8, 2019. A period of 7 days to visit her father would be allowed starting on Wednesday, March 20 and ending Tuesday, March 26. A further period of 7 days would be allowed starting Wednesday, March 27, and ending on Tuesday, April 2, 2019, to allow the claimant to attend the funeral. A disentitlement for being outside Canada, as well as a disentitlement for non-availability would be imposed as of the 15th day, Wednesday, April 3, 2019. Regular benefits and the availability provision

The above mentioned regulatory exceptions apply only when the claimant, claiming regular benefits, is able to prove availability during their absence, to the same extent as a claimant away from home for a short duration within Canada (Digest 10.11.1 to 10.11.6). Failing that, the claimant becomes subject to a disentitlement for both non-availability and for being outside Canada, for the entire period they are outside Canada. The same principles apply to a claimant who takes a leave of absence from employment to go outside Canada. Special benefits

A claimant is not disentitled from receiving maternity, parental, compassionate care or family caregiver benefits, for the sole reason they are outside Canada, unless their Social Insurance Number has expired (EIR 55(4)).

Reasons of a compassionate nature provide grounds upon which a claimant could be outside Canada, and still be entitled to benefits. Therefore, the Commission, where possible, should inform the claimant of the possibility of entitlement to compassionate care benefits (EI Act 23.1(2)). For example, a claimant may be entitled to 7 days to visit a family member who is seriously ill, then receive compassionate care benefits, if all qualifying and entitlement conditions are met. The claimant could then receive a maximum of 7 days of regular benefits to attend the funeral, should the family member pass away while the claimant is still out of the country.

While generally the specific reasons for absence under EIR 55(1) cannot be combined, they can nevertheless be considered independently from those which deal with compassionate care benefits, as well as benefits for other reasons (EIR 55(4)). Job search

A job interview or job search is bona fide when the claimant can demonstrate they are authorized, or have a reasonable expectation of obtaining authorization to work in the country in which they are looking for work (EIR 55(1)(f)). Training and Self-Employment benefit

A claimant attending a course or program of instruction outside of Canada, to which they were referred by a designated authority of the Commission (EI Act 25(1)(a)), is not disentitled for the sole reason that they are outside Canada (EIR 55(4)). These claimants are considered to be unemployed, capable of and available for work during any absence, whether they are in Canada or not, provided the training referral remains in effect. Referrals to training outside of Canada are generally limited to the work experience portion of the course or program of instruction, and the acquisition of new technology or training, which is not available locally, more conveniently, or more cost-effectively in Canada. Should a referral be made by a designated authority, which is an exception to this policy, it (the referral) will be accepted.

As well, a claimant who, with the approval of the Commission, is outside Canada in the course of their employment under the Self-Employment (SE) benefit (EI Act 25(1)(b)(i), EI Act 63, EIR 50); or under a similar benefit provided by a provincial government or other organization, is not disentitled from receiving benefits for the sole reason of being outside Canada (EIR 55(11)). These claimants are also considered to be unemployed, capable of and available for work during any absence, whether they are in Canada or not, provided the SE referral remains in effect.

[September 2019]

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