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Difference between revisions of "Employment Insurance Benefit Entitlement (8:VII)"
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Employment Insurance Benefit Entitlement (8:VII) (view source)
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In ''Canada v McNamara'', 2007 FCA 107, the claimant was fired from his job because he failed a random drug test due to trace amounts of marijuana. The court declined to overturn the disqualification, despite the argument that such illegal, but decriminalized conduct as smoking a joint on the previous weekend could not amount to misconduct for EI purposes. | In ''Canada v McNamara'', 2007 FCA 107, the claimant was fired from his job because he failed a random drug test due to trace amounts of marijuana. The court declined to overturn the disqualification, despite the argument that such illegal, but decriminalized conduct as smoking a joint on the previous weekend could not amount to misconduct for EI purposes. | ||
'''NOTE:''' '''Determinations of “just cause” and “misconduct” by the Commission can be appealed''' and where disqualification is imposed, a client should be advised to appeal. Many claimants mistakenly believe that they are automatically disqualified from EI if they have been fired, however unfairly. Unfortunately, many such claimants do not apply for EI benefits at all, or if disqualified do not realize that they can challenge the Commission’s decision until their '''30-day period to appeal''' expires. | |||
== D. Disentitlement == | |||
Disentitlement means that the claimant is not eligible to receive benefits. This may be due to any of a number of reasons including: | |||
*illness of a minor attachment claimant (s 21(1)); | |||
*the claimant is an inmate of a prison or similar institution, except when on parole (s 37(a)); | |||
*the claimant is absent from Canada, unless he or she falls within the category set out in s 55 of the ''EI Regulations'' (s 37(b)); | |||
*the claimant does not have child care in place; or | |||
*loss of employment due to a labour dispute (i.e. either a strike or lockout (s 36)). | |||
However, the most common basis for disentitlement is that the claimant failed to prove that he or she is “capable of and available for work and unable to find suitable employment” s 18(a)). Students should ensure the claimant understands that he or she '''must keep a job search record'''. | |||
Disentitlements can last indefinitely until the situation is remedied. Further, a disentitlement can be retroactive, which can lead to decisions of overpayment (see below). The ''EI Act'' places the onus on the claimant to prove entitlement on the balance of probabilities (s 49). In cases where the evidence as a whole indicates that the claimant’s availability was doubtful, it might be held that the claimant had failed to prove that he or she was available for suitable employment. For example, if a woman is disentitled because she has no child care arrangements, she may need to give the Commission the name of a relative or friend who will care for the child until permanent arrangement can be made. | |||
As discussed above, the longer the period of unemployment, the less “picky” the claimant can be in his or her employment search: see section VII(B) for details. When claimants fill out EI application forms, they should not be too restrictive, especially about the wages they are willing to accept, or the distances they are willing to commute. Further, the Commission is likely to disentitle a claimant who is searching for a job that is virtually non-existent in the area the claimant is searching. Also, a former employee searching for a job in a field where the wages were atypically high can be disentitled if he or she restricts the search to jobs with similar wage levels. This can often be the case with formerly unionized workers. | |||
What it comes down to in the end is that the Commission will make a judgment call about whether the claimant genuinely wants to find work and whether his or her current strategy maximizes the chances of success. | |||
