Digest of Benefit Entitlement Principles Chapter 10 - Section 12
10.12.0 Courses of instruction and employment measures
The Commission offers a wide variety of programs for improving the employability of persons who require assistance to overcome real or potential obstacles in the labour market. Claimants selected within the training component of these programs are referred under section 25(1) of the EIA. The relevant legislation provides exceptions that allow claimants to attend courses or programs of instruction and continue to receive EI benefits. Many claimants, because of a difficult economic climate with limited employment opportunities , or simply out of personal interest, decide to take courses on their own initiative. These claimants must meet the normal requirements concerning availability and capacity for work, in the same way as any other claimant claiming regular benefits.
10.12.1 Persons referred to courses or programs of instruction
When claimants are referred to courses of instruction or other programs by an authority designated by the Commission (EIA 25(1); Digest 19.1.1), they are deemed to be unemployed, capable of and available for work for the duration of their participation in the course or program. The provisions of this subsection constitute a clear and specific exception to the general rule found in the legislation in relation to unemployment (EIA 11), availability and capacity for work (EIA 18(1)(a); CUB 79668).
Consequently, these claimants will be considered unemployed, capable of and available for work for any day or during any period for which the referral to the course by a designated authority remains in effect. This may also be the case if they are in fact absent from the course for short periods .
All claimants referred to such training must still fulfill all other provisions under the act and regulations.
10.12.2 Persons attending courses on their own initiative
Before rendering a decision regarding the availability of a claimant who is attending a course on their own initiative, the agent of the Commission will first consider whether the claimant could be referred to a similar course, pursuant to section 25(1) of the EIA (Digest 19.2.0). If so, and a referral is made, the claimant would not be required to demonstrate that they were unemployed, capable of and available for work. If not, the agent must document the file indicating that this option was reviewed and the reasons it is not available to the claimant. A determination will then be made as to the claimant’s availability for work while taking the course.
10.12.2.1 Legislative authority
Claimants who attend training courses on their own initiative, without being referred by an authority designated by the Commission, must demonstrate that they are unemployed (EIA 11), capable of and available for work and unable to obtain suitable employment (EIA 18(1)(a)) in the same manner as any other claimant. It is essential that they continue to seek employment in order to maintain entitlement to regular benefits, and they must show that the attendance at the course has not created obstacles to their availability (CUB 78106, CUB 79704).
10.12.2.2 Proof of availability required
The proof of availability required of a claimant attending a non-approved course is the same as that required of all claimants applying for regular benefits in other circumstances. They must be prepared to accept a suitable job as soon as possible, not set conditions that would unduly limit their employment opportunities, and behave in a manner that indicates a sincere desire to work (CUB 59837, CUB 69340).
Correspondence courses do not generally lead to a presumption of non-availability. The conditions of availability would not, however, be presumed to be met in cases where studies associated with such courses are intensive enough to call into question the possibility of pursuing those studies while seeking or holding a full-time job (CUB 60222).
10.12.2.3 Fact finding
Fact finding by the agents in such cases should be the same as for any other situation where a claimant’s activities call the availability for work into question (CUB 79013). The same approach applies for any period during which training is interrupted.
It is only once all the information is gathered that the facts can be evaluated and a determination made as to the claimant’s credibility. A claimant may demonstrate availability or non-availability for work, and whichever the case, documentation on the claim file must clearly support the decision made by the Commission (CUB 78403).
10.12.2.4 Concept of case-by-case
The question of availability must be considered in light of the particular circumstances of each case. Because each person's situation is unique, availability is assessed on the basis of the claimant’s own situation, and not on the circumstances of someone else in a similar situation, who is receiving benefits.
10.12.2.5 Presumption of non-availability
Claimants who are taking courses on their own initiative are not automatically considered unavailable for work, nor do they automatically lose their entitlement to regular benefits. The agent must determine whether taking the course places restrictions on their availability, which will greatly reduce their chances of finding employment (CUB 70915, CUB 72359).
Accordingly, claimants must rebut a strong presumption of non-availability when they are taking training courses. This presumption is not limited to claimants who are taking courses on their own initiative, but applies to all claimants whose file raises doubts as to their availability for work and sincere efforts to find employment (CUB 77999, CUB 79303).
Although taking a training course is a commendable activity in and of itself, jurisprudence clearly states that students must still demonstrate their availability for work for the duration of their studies, and that they must produce convincing evidence to rebut the presumption of non-availability. This can be done by showing that their intention is to immediately accept suitable employment, as evidenced by job search efforts, that they are prepared to make whatever arrangements may be required, or that they are prepared to abandon the course to accept suitable employment (CUB 73932, CUB 74693).
10.12.2.6 Factors to consider
Numerous factors must be considered in determining the extent to which taking a course affects the claimant's availability.
The restrictions arising from following the course of instruction can be compared to restrictions related to wages, type of work or hours of work. The agent must determine the limitation that these restrictions place on the chances of finding employment.
An important consideration is the intention and attitude of the claimant. The agent must determine if the claimant's intent is to focus on becoming gainfully employed or on completing the course, by assessing the actions the claimant has taken to allow for immediate acceptance of employment, should an offer be made.
Some questions which may be helpful:
- what is the true intention of the claimant
- what actions have been taken which would confirm that this is the intention
- what has the claimant done that will support the contention that the first priority is to become employed?
- is the claimant's primary concern to be immediately re-employed and is it evident that there would be no hesitation to change the schedule, or even abandon the course, in favour of employment
- what is the cost of the course and the total number of hours per week to be invested
- what are the conditions of entitlement to any student bursary or student loan
- do the conditions of the loan or grant permit the claimant to work
- has the claimant, prior to commencing the course, protected the investment by ensuring that schedules can be changed, or tuition refunded if the course is abandoned
- has the claimant made any job search efforts
- have restrictions been placed on the employment considered acceptable
- is there a history of working while attending a course
In some cases it may be helpful for the agent to get additional information such as, registration guide, course timetable, homework expected, exam schedules, laboratory schedules required to complete the course, statement of tuition fees, or details of student loan or student grant(s), from the claimant.
The agent must not limit consideration to a single factor, for example, the existence of a previous pattern of simultaneous work and study, which may lead to the rebuttal of the presumption of non-availability. In reviewing the file, the agent should consider all circumstances and facts, such as the claimant's intentions if a suitable job comes up, the efforts made to find employment, whether the course is being taken for credit or simply out of interest, the claimant's willingness to abandon the course in favour of employment, the number of hours per week and the length of the course, the flexibility of the course schedule to enable the claimant to accept work, the sums invested, whether a portion of the course fees may be refunded, and the conditions of entitlement to a student bursary or student loan, in addition to the pattern of employment and studies (FCA A-556-04, CUB 61560A, CUB 76708).
The assessment of all the subjective and objective circumstances and facts and the conditions placed on accepting employment will enable the agent to determine the effect the training course has on the claimant's availability. The agent must compile the facts and document them in support of the decision.
10.12.2.7 Employment opportunities in the labour market
The agent should obtain specific details on the nature of the employment the claimant is prepared to accept and the conditions under which this work will be accepted. The agent must then determine if the skills and/or experience of the claimant will allow for reasonable prospects of employment within these conditions.
What must then be determined is whether the terms and conditions of the claimant's availability are restrictive within the area's labour market. It is therefore necessary to obtain and evaluate the labour market information to determine if attendance at the course is detracting from the claimant's chances of obtaining employment (CUB 53156, CUB 66265).
For example, the claimant resides in an area in which there is little or no possibility of employment and has experienced many weeks of unsuccessful job search and difficulty finding employment because of the variable conditions of the labour market. Faced with poor labour market conditions, a claimant (including seasonal employment workers and those living in remote regions), while remaining available and searching for work, may decide to take a course rather than remain inactive.
When making a decision in such cases, the agent must take into account factors related to the labour market in terms of whether employment opportunities are limited; or whether local labour market conditions are good and the claimant should be able to become re-employed.
The agent has a degree of flexibility when assessing the claimant's availability in light of the local labour market. However, in order to conclude that a claimant’s availability in these cases is proven, the course should be of secondary importance and should not be an obstacle to seeking and accepting suitable employment in the event the labour market improves. In this context, once the availability has been accepted in these situations, the claimant’s ongoing availability should be examined periodically as the labour market evolves (CUB 74921).
10.12.2.8 Hours of work
Otherwise suitable employment does not become unsuitable simply because the hours of work would conflict with a claimant’s attendance at a course of instruction (Digest 184.108.40.206). Like all other claimants claiming regular benefits, and notwithstanding any pattern of work in the qualifying period including any time where the claimant may have worked and attended school at the same time, claimants attending a course of instruction must be willing to seek and accept all hours of work that are available in the labour market. This may include evenings, nights, shift work, potentially inconvenient or long hours, and overtime. A claimant who is unwilling or unable to leave his course in order to accept these hours of work, or whose job search efforts demonstrate an unwillingness or inability to search for and accept any hours, may not be able to prove their availability for work, and therefore may be subject to a disentitlement from benefits.
What must be examined are the claimant’s individual circumstances. Is the claimant avoiding otherwise suitable employment because of an unwillingness or inability to work certain hours? If so, a disentitlement may be in order.
An assessment of all of the facts, and the conditions placed on accepting employment, must be considered to enable the agent to determine the effect the training course has on the claimant's availability. Labour market information should also be considered in these cases, particularly if the evidence is unclear as to the availability of suitable employment during certain hours. This will assist in deciding if the claimant is avoiding suitable employment by restricting their hours of work, or if the conditions under which the claimant is willing to work afford reasonable opportunities for re-employment.
10.12.2.9 Non-referred foreign students
Foreign students attending a post-secondary educational institution in Canada on a full time basis must have a student visa and a work permit if they wish to obtain employment on the campus of the institution they attend. The employer may be the post-secondary educational institution, a faculty, a student organization or a private contractor that provides services to the institution on campus (for example, a caterer, a bank, hairdressing salon). In such cases, the phrase "on-campus employment" will be indicated on the work permit.
The agent will review the circumstances of each claimant to determine whether they are entitled to benefits, by taking into account any restrictions on the acceptance of employment, conditions related to the work permit, and opportunities for employment on campus.
It is important to fact find and take all factors into consideration before making a determination in this regard. Information must be obtained from the claimant regarding their willingness to accept all hours of work that are available on campus as well as their intention to seek such employment. When requested to do so, the claimant must be able to provide evidence of the reasonable and customary efforts they are making to obtain employment within the legal restrictions of the work permit, to prove their availability for work (EIA 18(1)(a), EIA 50(8)). Labour market information should be obtained in these cases in order to determine if there are reasonable employment opportunities within the conditions under which the claimant can accept work.
Where a claimant specifically states they are not actively seeking employment; or are unavailable to accept suitable employment because of their course; or when assessment of all facts in the file demonstrates that the claimant's intention and primary interest are to attend the course rather than to obtain a job immediately, a disentitlement would be appropriate.
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