Employment Insurance (EI)

Decision

[1] Leave (permission) to appeal is refused. The appeal won’t go forward.

Overview

[2] J. M. is the Claimant.

[3] Two sections of the Employment Insurance Act (EI Act) say a person who wants EI regular benefits has to be available for work.^{Footnote 1} Being available means they have to prove they are actively looking for work and ready to take a suitable job on an ongoing basis.

[4] The Canada Employment Insurance Commission (Commission) decided the Claimant hadn’t proved he was available. So, it didn’t pay him benefits. He disagreed and asked the Commission to reconsider. The Commission upheld its decision. He appealed.

[5] This Tribunal’s General Division dismissed the Claimant’s appeal. The General Division decided he had overcome the presumption that full-time students aren’t available. But it found he wasn’t available because he didn’t make reasonable and customary efforts to find suitable employment.^{Footnote 2} It also found he wasn’t available because he didn’t meet the second and third parts of the Faucher test.^{Footnote 3} This meant the Commission could not pay him EI regular benefits.

[6] To get permission to appeal the General Division decision, the Claimant has to show his appeal has a reasonable chance of success. Unfortunately, he hasn’t.

Issues

[7] I have to decide three issues.

• Is there an arguable case the General Division procedure was unfair to the Claimant because the job search requirement is subjective, and the General Division decided his entitlement based on that requirement when the Commission didn’t?
• Is there an arguable case the General Division made an important error of fact?
• Is there any other reason I can give the Claimant permission to appeal?

I am not giving the Claimant permission to appeal

[8] I read the Claimant’s application to appeal.^{Footnote 4} I read the General Division decision. I reviewed the documents in the General Division file.^{Footnote 5} And I listened to the General Division hearing.^{Footnote 6} Then I made my decision.

[9] For the reasons that follow, I am not giving the Claimant permission to appeal.

The test for getting permission to appeal

[10] I can give the Claimant permission to appeal if his appeal has a reasonable chance of success.^{Footnote 7} This means he has to show an arguable case the General Division made one of the following errors which could change the outcome in his appeal.^{Footnote 8}

• It used an unfair process or was biased.^{Footnote 9}
• It used its decision-making power improperly, called a jurisdictional error.
• It made an important factual error.
• It made a legal error.

[11] Because the Claimant is representing himself, I should not apply the permission to appeal test mechanistically.^{Footnote 10}

There isn’t an arguable case the General Division procedure was unfair to the Claimant

[12] The Claimant checked the box that says the General Division didn’t follow procedural fairness.^{Footnote 11}

[13] The General Division makes an error if it uses an unfair process.^{Footnote 12} The question is whether a person knew the case they had to meet, had a full and fair opportunity to present their case, and had an impartial decision-maker consider and decide their case.^{Footnote 13}

[14] The Claimant didn’t argue the General Division member was biased or prejudged his appeal. And nothing I heard or read suggested an arguable case the General Division was biased or prejudiced.

[15] The Claimant seems to be arguing the General Division process was unfair because the job search test is subjective.^{Footnote 14} He says the law doesn’t include a minimum or specific threshold that says what counts as a sufficient job search. He says he should have to show he put forth effort every single month, which he did.

[16] He also argues it was unfair of the General Division to change the main issue in his appeal. He says the Commission denied him benefits because his full-time school meant he was unavailable. He says the Commission didn’t deny him benefits for insufficient job search efforts. So, it makes no sense the General Division decided his case based on his job search efforts.

[17] The Claimant’s arguments misunderstand the law, in three ways.

[18] First, job searching is part of the law of availability. The legal tests for availability under sections 50(8) and 18(1)(a) both include a job search requirement. The Commission relied on these sections to deny him benefits. To get regular benefits, he had to prove he was available. This included proving he met the job search requirements.

[19] Second, his arguments misunderstand the General Division’s role and powers. In an appeal, it takes a fresh look at the Commission’s decision and the underlying legal issue or issues.^{Footnote 15} It has to decide if the Commission’s decision was correct given the law and the evidence before the General Division. In the Claimant’s appeal, the General Division had to use the presumption full-time students aren’t available and the two availability sections of the EI Act to decide whether he showed he was available.

[20] Third, the law is often subjective and open to interpretation. But that doesn’t mean the decision-making process under the law is unfair.

[21] The General Division acknowledged there was no formula for the job search requirements (paragraph 30). Then it explained how it would interpret and apply the job search requirements (paragraphs 30, 33, and 34). It was the General Division’s job to decide whether he met those requirements. It had to do this by weighing the evidence and applying the law.

[22] That’s what the General Division did. This process wasn’t unfair to the Claimant. I understand the Claimant thinks the law is unfair and the outcome in his appeal is unfair. But I can’t consider general unfairness—of the law or the outcome it leads to—when I decide whether to give permission to appeal.

[23] The Commission might not have fully explained the job search requirement and how it fit into the legal tests for availability. But as part of the General Division appeal process, the Tribunal sent the Claimant the Commission’s written submissions weeks before his hearing.

[24] The Commission’s written arguments make it clear it believed his job search wasn’t adequate.^{Footnote 16} The Commission explains the law about availability. Then it argues the Claimant didn’t show he was actively seeking work. And he didn’t show he was aggressively searching for work while in school full-time. Finally, the Commission says, “a job search with only 5 jobs that he applied to at the end of November 2024, which does not reflect the actions of someone who is sincerely searching for work.”

[25] Near the beginning of the hearing, the General Division member explained the law of availability, including the job search requirement, in plain language.^{Footnote 17} Later it explained the job search requirement in more detail.^{Footnote 18} It also explained EI isn’t a needs-based program—it’s an insurance program. This means people have to qualify for a benefit then meet the conditions of eligibility on an ongoing basis.

[26] The General Division asked the Claimant questions based on the presumption of non-availability, and the legal tests for availability including job search activities. The General Division read parts of the Commission’s written argument to the Claimant and gave him an opportunity to respond.^{Footnote 19} And the General Division gave the Claimant the last word by asking him if he had anything else he wanted it to know, that wasn’t in the documents or his testimony.^{Footnote 20}

[27] To summarize, the General Division gave the Claimant several opportunities to know the case he had to meet. And the General Division gave him a full and fair opportunity to present his evidence and arguments. So, the Claimant hasn’t shown an arguable case the General Division process or hearing was unfair to him. And I didn’t find an arguable case.

There isn’t an arguable case the General Division made an important factual error

[28] The Claimant checked the box that says the General Division made an important error of fact.

[29] The General Division makes an important factual error if it bases its decision on a factual finding it made by ignoring or misunderstanding relevant evidence.^{Footnote 21} In other words, some evidence goes squarely against or doesn’t support a factual finding the General Division made to reach its decision.

[30] It’s the General Division’s job to review and weigh the evidence.^{Footnote 22} I can’t re-weigh the evidence or substitute my view of the facts. The law also says I can presume the General Division reviewed all the evidence—it doesn’t have to refer to every piece of evidence.^{Footnote 23}

[31] The Claimant argues the General Division denied his appeal even though the law doesn’t require a minimum or set a specific threshold for job searches. “[S]o I feel like as long as I can show I was putting forth effort every single month to search and I genuinely was, that should be enough.”^{Footnote 24}

[32] The Claimant’s argument doesn’t show the General Division ignored or misunderstood relevant evidence. The Claimant’s belief about the law and his view of his efforts to find work were his arguments, not evidence. The General Division reviewed and considered the relevant evidence—given the legal tests it had to use.

[33] The General Division reviewed in detail evidence about his job search (paragraphs 32, 35 to 49).

[34] Unfortunately, the Claimant didn’t understand the EI program and the job search requirements.^{Footnote 25} After the General Division explained that EI is an insurance program and explained the job search requirements to him, he admitted he wasn’t searching hard enough.^{Footnote 26}

[35] So, the Claimant hasn’t shown an arguable case the General Division ignored or misunderstood relevant evidence about his job search.

[36] I considered whether the General Division ignored or misunderstood any other evidence. I listened to the hearing and read the General Division file. I didn’t find an arguable case the General Division ignored or misunderstood relevant evidence. In other words, the evidence supports the General Division decision.

There is no other reason I can give the Claimant permission to appeal

[37] The Claimant is representing himself. So, I considered whether there was an arguable case the General Division made another type of error.

[38] There isn’t an arguable case the General Division used its decision-making authority improperly. It identified the issues it had to decide (paragraphs 6 to 8). Then it decided only those issues.

[39] There isn’t an arguable case the General Division made a legal error. It identified the correct legal test for availability, including the presumption of non-availability that applies to full-time students (paragraphs 9, 10, 12, 13, 18, 19, 25, 26, 30, 33, 34, 51, and 52). Then it applied the correct tests.

[40] Finally, the General Division’s reasons are more than adequate.^{Footnote 27} It grappled with the right questions and considered the parties’ evidence and arguments. And its reasons add up.

Conclusion

[41] The Claimant’s appeal doesn’t have a reasonable chance of success. This means I can’t give him permission to appeal.