Digest of Benefit Entitlement Principles   Chapter 11 - Section 3

11.3.0 Second entitlement condition: to be otherwise available for work

In addition to the requirement of having to demonstrate that the individual is incapable of work by reason of a prescribed illness, injury or quarantine, that individual would also have to demonstrate that he would have been available for work, if it were not for the illness, injury or quarantine.

The only exception to this section of the Act is for claimants who are in receipt of Québec Parental Insurance Plan (QPIP) parental benefits or EI parental, compassionate care or family caregiver benefits. Section 18 (2) of the Act stipulates that Footnote 1 :

2. A claimant to whom benefits are payable under any of sections 23 to 23.2 is not disentitled under paragraph (1)(b) for failing to prove that he or she would have been available for work were it not for the illness, injury or quarantine.

Claimants in receipt of EI parental, compassionate care or family caregiver benefits who wish to convert to sickness benefits, and who provide proof of incapacity, are exempt from showing they would otherwise be available for work.

An individual who makes a claim for sickness benefits is not only required to demonstrate being unable to work because of a prescribed illness, injury or quarantine, but also to demonstrate that he would be otherwise available for work Footnote 2 . The purpose of this second entitlement condition is to pay sickness benefits only to individuals who would be otherwise available, if they had not been unable to work because of the prescribed illness, the injury or the quarantine.

Whether the individual would be otherwise available for work if it had not been for the prescribed illness, the injury or the quarantine will be determined in the same way as if the individual was able to work. The reason for separation, the individual's personal situation, his intentions if he had not been incapable of working, and other requirements and restrictions in relation to the labour market, are all factors that reflect on otherwise availability for work during the period of incapacity. The chronology of events may also be very revealing evidence in this determination.

If the inability to work arises when there is already a current disentitlement on the ground of non-availability, or a situation that would be grounds for disentitlement, it may be difficult for the individual to demonstrate that he would be otherwise available for work. For example, where the inability arose after the person was not available to work for their usual employer because he was on leave of absence.

It is quite possible that the situation will only arise once the period of inability to work is under way or at the same time as that period. The question then is, what would this individual have been doing, had he not been incapable of working? The situation may be one that was expected or planned, that is totally unrelated to the inability, and in respect of which the person could not in normal circumstances prove that he would have been available. An example might be a specific period of holidays or leave of absence that the claimant had scheduled prior to their inability to work, and actually took, in spite of his or her inability to work.

A person may want to take advantage of a period of inability and, instead of doing nothing, signs up for a part-time short-duration training course Footnote 3 or spends the period of convalescence at a place away from home, such as the cottage. Because such situations would not have arisen if the individual would had been able to work, it cannot be said that in such situations the individual has not proven that he was otherwise available for work for that period. On the other hand, entitlement to benefits would be considered under a separate section of the EI legislation, in the case of a stay outside Canada Footnote 4 .

The situation would be different if, for example, a claimant was to decide to take advantage of a long period of inability to work, to look after preparations for a business, increase the level of activity with the aim of eventually working on his or her own account, or expending a significant part of his or her time and energy on a job that was only secondary before the inability arose. In such a case, whether the person is actually unemployed, otherwise available for work, and unable to hold any other suitable employment will be open to question.

Those who withdraw from the labour market while on sabbatical leave may also be affected by illness, injury or quarantine and make a claim for sickness benefits. Such persons cannot usually prove that they would be otherwise available for work unless that inability to work has delayed their return to the labour market. In this last case, they may show that they would be otherwise available as of the original date on which they were scheduled to return to work.

Claimants in receipt of EI parental, compassionate care or family caregiver benefits who provide proof of incapacity can convert their claim to sickness benefits without having to meet the requirement to be otherwise available for work Footnote 5 .

[ May 2015 ]

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