Employment Insurance Benefit Entitlement (8:VII)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 1, 2023.

Once a claim is established, the basic requirement for receiving weekly benefits is that the claimant be “capable of and available for work and unable to obtain suitable employment.” To prove this in the event of a dispute, the claimant should keep a “job search record” (see Section IX.A: Job Search Record).

A. Ready, Willing, and Capable

An insured person must be ready, willing, and capable to work, for each day they receive regular benefits.

• “Ready to work” means the claimant’s conduct shows their desire to work, despite being unable to find a job.
• “Willing to work” means that the claimant is willing to accept all types of work that their abilities, skills, training, or experience enable them to do, and they are willing to accept the labour market conditions for it (e.g., the going rate of pay and hours of work)
• “Capable of working” means the claimant has the physical and mental requirements to perform the duties of an employment, under the same conditions as workers who usually do that type of work.

Regardless of how sympathetic a claimant’s reasons may be, they will be disentitled from EI benefits for as long as they are unable or unwilling to work. A claimant on regular benefits who ceases to be ready, willing, and capable of working for a reason covered by an EI special benefit (e.g., sickness or pregnancy) should contact the Commission to switch their benefits type as soon as possible.

While nothing prevents the Commission from requesting more convincing evidence, the claimant’s biweekly reports will be accepted at face value, as evidence of their readiness and capacity to work. Claimants should nonetheless be wary of inadvertently disentitling themselves by telling the Commission of any restrictions they have placed on their willingness to accept work. For example, by volunteering the fact that they are only applying for jobs paying $30 per hour or more, when there are few if any such jobs that the claimant is suitable for.

If the claimant does not act as a reasonable person who is desirous of working would, a presumption of non-availability arises which requires them to submit proof to the Commission that they are ready, willing, and capable of working. A statement of availability will no longer be sufficient, and if the claimant is unable to provide convincing proof (e.g., a job search record) they will be disentitled from regular benefits.

1. Vacation and Travel

A claimant cannot collect benefits for times they are on vacation. However, they can collect up to the day they leave, and from the day they return and/or become available again. To avoid potentially onerous penalties, vacations – including short ones – must be properly recorded and reported.

2. Sickness

A claimant may receive up to 15 weeks of sickness benefits where they can prove that they were “incapable of work by reason of a prescribed illness, injury, or quarantine on that day and that they would otherwise be available for work”

3. Attending Courses

See Section VI: E Training While on EI.

4. Starting a Business

Claimants who are trying to start a business are generally considered to be working full-time, regardless of whether they are receiving any income from the business. They are therefore not eligible for any benefits, unless they can convince the Commission, or the SST in an appeal, that the self-employment was so minor in extent that a person would not normally rely upon it as a principal means of livelihood.

5. Working Part Time

A claimant working part time may be able to claim an earnings exemption. If the claimant receives any benefits at all, the week counts toward the maximum number of weeks that can be paid under that claim. Thus, it may be in a claimant’s interest not to claim benefits for a week in which only a small amount would be paid.

B. Suitable Employment

A claimant must accept suitable work but is not required to take work considered not suitable. Most of the criteria that defines “suitable work” is contained in the EI Regulations s. 9.002(1). The criteria is as follows:

a) the claimant’s health and physical capabilities allow them to commute to the place of work and to perform the work;

b) the hours of work are not incompatible with the claimant’s family obligations or religious beliefs; and

c) the nature of the work is not contrary to the claimant’s moral convictions or religious beliefs.

1. Proof of Search for Suitable Employment

Section 50(8) of the EI Act requires that a claimant prove they are making “reasonable and customary” efforts to obtain suitable employment. Again, this emphasizes the importance of keeping a job search record, which the claimant should update daily. The criteria are further elaborated in EI Regulations, s 9.001:

a)the claimant’s efforts are sustained;

b) the claimant’s efforts consist of

• assessing employment opportunities,
• preparing a resume or cover letter,
• registering for job search tools or with electronic job banks or employment agencies,
• attending job search workshops or job fairs,
• networking,
• contacting prospective employers,
• submitting job applications,
• attending interviews, and
• undergoing evaluations of competencies; and

c) the claimant’s efforts are directed toward obtaining suitable employment.

C. Disqualification

Disqualifications are suspensions of benefits imposed due to specific actions or inactions by a claimant. They may indefinite, or for a specific number of weeks. A disqualification is a more severe penalty than a disentitlement because they may prevent a claimant from receiving benefits for days of their benefit period in which they would otherwise be eligible. Failing to follow an instruction given by the Commission, while on benefits, will result in a temporary disqualification for one or more complete weeks. Quitting without just cause, or being fired for misconduct, will disqualify a claimant for EI altogether.

Failure to follow instructions by the commission

A claimant who refuses an order by the Commission to accept an offer of suitable employment, or to apply for suitable employment when aware that a position is vacant or becoming vacant, may be disqualified from regular benefits for 7 to 21 weeks. A claimant who fails to pursue an employment opportunity, job interviews or training course, recommended to them by the Commission faces up to 6 weeks of disqualification.

Due to the volume of files overseen by the Commission, disqualifications for this reason are rare because benefits officers rarely have the time to personally direct a claimant’s employment efforts. However, any claimant given such instructions should follow them unless the employment they are direct towards is unsuitable, or they have another very good cause for not doing so.

An EI disqualification will prevent a claimant from receiving regular benefits, but the claimant may still collect any special benefits to which they are entitled.

NOTE: In these cases, the length of disqualification is appealable.

Disqualification: Misconduct and Quitting Without Just Cause

A claimant is disqualified when they are fired due to their own misconduct or quit without just cause unless remaining in or accepting employment would interfere with the claimant’s membership in a union, or ability to observe a union’s rules.

The effect of a being dismissed for misconduct, or for quitting without just cause, is a cut-off from all regular benefits during the benefit period. Such a disqualification is imposed if the claimant has lost any job in the qualifying period for the misconduct, or quitting without just cause, even if the claimant had other work before applying for EI .

This disqualification will not prevent the claimant from collecting special benefits to which they are entitled.

1. Just Cause for Voluntarily Leaving Employment

“Just cause” is defined under s. 29(c) of the EI Act as: “having regard to all the circumstances, the individual had no reasonable alternative to leaving or taking leave.” Where an employee had “just cause” for leaving their employment, they will not be disqualified. The onus is on the claimant to show they had “just cause.”

Under s. 49(2) of the EI Act, once a claimant asserts, they quit for a reason which constitutes just cause, the evidentiary burden of proving they did not shift to their employer.

For a claimant to prove just cause, they must show:

a) genuine or other acceptable reason for leaving the employment

b) proof of taking all reasonable steps to alleviate the grievance; and

c) proof of a search for alternate employment before the termination

Section 29(c) of the EI Act provides a list of circumstances that could constitute “just cause” if they gave the claimant no reasonable alternative but to leave their employment. This list is neither exhaustive nor conclusive.

(i) sexual or other harassment,

(ii) obligation to accompany a spouse, common-law partner or dependent child to another residence,

(iii) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act,

(iv) working conditions that constitute a danger to health or safety,

(v) obligation to care for a child or a member of the immediate family,

(vi) reasonable assurance of another employment in the immediate future,

(vii) significant modification of terms and conditions respecting wages or salary,

(viii) excessive overtime work or refusal to pay for overtime work,

(ix) significant changes in work duties,

(x) antagonism with a supervisor if the claimant is not primarily responsible for the antagonism,

(xi) practices of an employer that are contrary to law,

(xii) discrimination with regard to employment because of membership in an association, organization or union of workers,

(xiii) undue pressure by an employer on the claimant to leave their employment, and

(xiv) any other reasonable circumstances that are prescribed.

To date the only prescribed circumstance under s. 29(c)(xiv) is EI Regulations s. 51.1, where if the claimant’s leaving preserved the employment of a co-worker, whose employment would otherwise have been terminated through a work-force reduction process, they had just cause.

A claimant must have done everything possible to avoid quitting, to support a finding of just cause. In Canada v Hernandez, 2007 FCA 320 the claimant was disqualified for quitting his job after a public health nurse informed him that silica dust used in his workplace was a carcinogen. The court decided he did not exhaust his alternatives because he should have asked the employer to change its business or find him a new job somewhere else.

b) Importance of Evidence

Detailed evidence like records or diaries is exceptionally important in the determination of a claim. An employee should try to remember as many specific incidents, dates, and times as they can.

2. Misconduct

Section 30(1) of the EI Act states that a claimant is disqualified when they are fired due to their own misconduct. When a claimant lost their employment for misconduct, a Benefits Officer will investigate the matter to determine if their alleged offence constitutes misconduct. The following requirements must be met for a claimant to be disqualified from EI due to misconduct.

1. The claimant lost their employment because of an alleged offence (action or omission)
2. The claimant committed the alleged offence; and
3. The alleged offence constitutes misconduct

The Claimant lost their employment because of the alleged offence

Dismissal for misconduct requires there to be an identifiable “breaking point” caused by a specific alleged offence by an employee. General dissatisfaction or vague complaints are not enough. Suspension or dismissal must be in response to a single incident, or a series of related events leading up to the ultimate breaking point.

The Commission cannot make a finding of misconduct if the employer forgave the claimant for an infraction, or imposed a lesser punishment for it, then later dismissed the employee for the same infraction. Once settled, an infraction cannot be revived to dismiss an employee for misconduct.

As stated by the FCA in Masic (2011) The alleged offence must not be an excuse or pretext for dismissal; it must cause the loss of employment. The FCA further held in Doucet (2012) that the Commission must be satisfied (on the balance of probabilities) that the alleged offence was the “main reason” for the claimant’s suspension or dismissal. This does not mean the employer cannot have other reasons influencing their decision to dismiss an employee (such reasons may even be unreasonable or discriminatory) only that their main reason must be the alleged offence.

The claimant committed the alleged offence

Once it has been established that the claimant lost their employment due to an alleged offence, the Commission must determine whether the claimant was the actual cause of the offence. If the claimant argues they were not, the Commission will gather evidence from both parties, and possibly hear from third-party witnesses, to determine whose version of events is more credible.

The onus of proving the claimant committed an alleged offence, on the balance of probabilities, lies with their employer and the Commission. The Commission must be cognizant of the FCA’s holding in Crichlow (1998), that an employer’s mere suspicion or speculation cannot result in a finding of misconduct, and the grave consequences is carries, without clear evidence to support it.

The alleged offence constitutes misconduct

The following elements are required for an alleged offence to constitute misconduct.

1. The claimant had a duty (express or implied) resulting from the employment contract
2. The claimant knew or ought to have known of duty
3. The claimant willfully breached that duty; and
4. The claimant knew or ought to have known that their breach of the duty had a real possibility of resulting in their loss of employment

Neither the EI Act nor Regulations defines misconduct. In relation to EI, misconduct is defined through case law. Misconduct is different from the concept of “just cause” in employment law. Certain offences allow an employee to be dismissed “with cause,” but do not meet the threshold of misconduct for denying them EI benefits, and vice-versa.

To be misconduct, the alleged offence must be willful. This means the claimant’s wrongful conduct was intentional, or so reckless as to be willful. As held by the Federal Court of Appeal in Mishibinijima (2009), willfulness further requires the claimant to have known or ought to have known that their conduct impaired the performance of a duty owed to their employer, and as a result their dismissal was a real possibility. There are three ways for a claimant to dispute that their alleged offence amounts to misconduct.

The claimant did not know of the express or implied duty

An employee cannot be dismissed for misconduct, if they had no knowledge of the duty which their alleged offence breached. There are two categories of duties, express and implied. An express duty is one which the employer directly informs the employee of. As held by the Appeals Division of the SST in J.B v CEIC (2023), an express duty may be imposed unilaterally at any time during the employment, without the employee’s consent to the instruction, rule, or regulation establishing it. However, the express duty must be specific enough to allow the employee to know what is permissible. Breach of vague duties (e.g., “be a good team player”) cannot be the basis for a dismissal for misconduct.

An implied duty is one so inherent to an employment relationship that it exists by default, and only a contradictory express term can annul it. An example of an implied duty is an employee’s duty to not steal from their employer. An employee does not have to be told that they have a duty not to steal, they ought to know that already. The criteria by which an implied duty is assessed is whether the employee ought to know of its existence, irrespective of whether it was communicated to them or not.

The claimant did not know their alleged offence had a real possibility of dismissal

While certain conduct is so serious a breach of the employer-employee relationship that an employee ought to know that engaging in it could result in their termination, that is not the case for more minor infractions. Occasional tardiness, overstaying a lunch break by a few minutes, and falling short of a dress code are examples of conduct which an employee may know to impair the performance of their job duties, but which few would expect to be dismissed for unless specifically told so. In such circumstances, an employee must be unambiguously warned that their breach of the duty will have a real possibility of resulting in their loss of employment.

The infraction was not intentional or reckless

Misconduct requires an employee to have the reckless or willful intention of breaching a policy or duty of their employment. An alleged offence is not misconduct if the breach was not intentional or reckless. In J.M. v Canada EI Commission the SST held that an employee dismissed for chronic absenteeism should not be denied benefits, because the cause of the final incident was a medical emergency which made it impossible for them to work.

Additional considerations in relation to EI misconduct.

= a) A legitimate dismissal for misconduct can be unreasonable and discriminatory

The legal test for misconduct does not require the Commission to investigate the reasonableness, or legality of the policy which the employee was dismissed for breaching. The test only investigates whether the claimant willfully breached an express or implied duty of their employer, while knowing doing so could result in their termination. An employer may have a policy that is unreasonable and discriminatory, but employees who willfully breach it still commit misconduct. The proper avenues for justice, in such circumstances, is legal action for wrongful dismissal and/or discrimination, not the EI claims system. As stated by the Federal Court of Appeals in Dubeau (2019) “it is not the responsibility of Canadian taxpayers to assume the cost of wrongful conduct by an employer by way of employment insurance benefits.”

= b) Incompetence is not misconduct

Incompetence, unsatisfactory performance, inaptitude to perform certain duties or inexperience, is not misconduct, unless done willfully or as the result of insubordination.

In the absence of a willful breach of a job duty, an incompetent employee who loses their job, cannot be denied benefits.

This is another area where Employment Insurance differs from BC employment law. A worker can be dismissed with just cause if they are incompetent, and unable to do their job properly despite their best efforts. However, they will not be denied benefits for misconduct.

= c) Misconduct outside of work

For an alleged offence to be misconduct, it is not necessary that it be committed at work, or in an employment context.. There must be a causal relationship between the misconduct which an employee is accused of and their employment, however the bar for finding such a relationship is low. For example in S.S. v CEIB (2016) the General Division of the SST found that offensive conduct done by an employee outside of work was misconduct, on the basis that a video of it went viral and ultimately damaged his employer’s reputation.

= e) Onus of proving misconduct

The onus of proving misconduct rests on the party alleging it. The Commission or employer must prove positively the existence of misconduct and that it caused the loss of employment.

A finding of misconduct, with the grave consequences it carries, can only be made from clear evidence and not mere speculation and suppositions. If the employer is unable to provide such evidence, the claimant cannot be denied benefits.

D. Disentitlement

Disentitlement means that the claimant is not eligible to receive benefits. This may be due to any 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 they fall within the category set out in s. 55 of the EI Regulations (s. 37(b));
• the claimant does not have childcare in place; or
• loss of employment due to a labour dispute (i.e., a strike or lockout (s. 36)).

The most common reason for disentitlement is that the claimant failed to prove that they are “capable of and available for work and unable to find suitable employment” (s. 18(a)). See Section V: Benefit Entitlement.

Disentitlements can last indefinitely until the Commission is satisfied the claimant is available and capable of suitable employment. A disentitlement can also be retroactive, leading to decisions of overpayment. The EI Act places the onus on the claimant to prove their entitlement on the balance of probabilities (s. 49).

The longer the period of unemployment, the less “picky” the claimant can be in their employment search, particularly if it becomes obvious that few job openings meet their criteria. The Commission is likely to disentitle a claimant who places restrictive conditions on the employment they report pursuing, including the wages they are willing to accept or the distances they are willing to commute, if they preclude a significant portion of suitable employment in their region. The Commission is also likely to disentitle a claimant who is searching for a job that is virtually non-existent where they live. A claimant whose former wages were atypically high can be disentitled if they restrict the search to jobs with similar wage levels. This can often be the case with formerly unionized workers.

Ultimately, the Commission will make a judgment call about whether the claimant genuinely wants to find work and whether their current strategy maximizes the chances of success.

E. Training While on EI

Workers receiving EI regular benefits can attend a part-time training course if doing so does not render them incapable of working. Claimants can only attend a full-time course or training program if they are granted permission to do so by the Commission or a designated authority.

A claimant who attends or plans on attending a course or training program must fill out and submit a ESDC-INS3141 “Training Course Information" form to the Commission. They can do so electronically through their My Services Canada Account, or by mailing or delivering it to their local Service Canada Centre. They must also accurately report the number of hours of training they attend, when making their bi-weekly reports.

=== 1. Part-Time Course or Training Program A claimant applying for EI benefits must inform the Commission if they are enrolled in a part-time course or training program. This can be done through their My Services Canada Account, or by speaking directly with an agent over the phone or in person.

A claimant receiving EI regular benefits may enroll in a part-time course or training program if doing so does not render them unavailable for full-time employment. A claimant in part-time training should prepare evidence that the course does not interfere with their job search efforts or ability to accept a suitable offer of employment. They must always be ready to immediately leave the training if necessary. Claimants will be penalized if they decline a suitable offer of employment because it interferes with their part-time course or training program.

2. Full-Time Course or Training Program

In Cryenne (2010) the Federal Court of Appeals held that a “presumption of non-availability” arises when someone is in school or training full-time. Without evidence to the contrary, a claimant enrolled in full-time training is presumed to be unavailable for work, and ineligible for EI regular benefits. Though the question of whether a claimant’s full-time training makes them unavailable for work is fact-specific, the FCA has referred to various principles which rebut the presumption of non-availability. In S.N (2024) the General Division of the SST summarized those principles as including:

• having a history of full-time employment while studying full-time
• • the existence of “exceptional circumstances” that would enable the claimant to work while taking their course (for example, whether the claimant has a history of working part-time while studying full-time, whether the claimant has a history of being employed at irregular hours, the attendance requirements of the course, the claimant’s willingness to give up their studies to accept employment)

Because the presumption of non-availability requires exceptional circumstances to rebut, claimants should always seek a referral from a designated authority before enrolling in full-time training. Under section 25 of the EI Act, claimants referred to a full-time training program by a designated authority are deemed to be unemployed, capable of and available for work for the duration of their participation in the course or program.

If the duration of a course or training program is longer than the number of weeks of EI benefits the claimant is entitled to receive, they will not receive additional weeks of benefits to cover the entire length of the training.

A claimant who quits or stops attending their training without good cause, may no longer be eligible to receive EI benefits.

NOTE: For more information, refer to: www.canada.ca/en/employment-social-development/programs/ei/ei-list/courses-training.html

a) Referral from a Province or Indigenous Organization

All provinces and territories operate employment programs connecting unemployed workers to training appropriate for them. An unemployed worker who is referred to a full-time training program by their province or territory may be eligible for EI benefits while in training under Section 25 of the EI Act, and a provincial or territorial subsidy to cover costs associated with the training.

Once a province or territory grants an unemployed worker permission to attend full time training, and provides a Section 25 referral to the Commission, the claimant’s obligation to be available for work is temporarily waived and they may continue to collect EI for as long as they participate in the training. The Commission cannot deny a Section 25 referral made by a designated authority.

Each province and territory has their own frameworks for training eligibility for unemployed workers. EI claimants interested in attending full-time training while on benefits should always check with their local employment office for more information. In British Columbia WorkBC, operating under the Ministry of Post-Secondary and Future Skills, is the government organization responsible for supporting unemployed workers in accessing appropriate full-time training, and has the delegated authority to provide Section 25 referrals for eligible claimants.

Indigenous organizations participating in the “Indigenous Skills and Employment Training Program” can provide a Section 25 referral for an Indigenous EI claimant.

NOTE: ESDC maintains an online list of all eligible Indigenous services providers: https://www.canada.ca/en/employment-social-development/programs/indigenous-skills-employment-training/service-delivery-organizations.html

b) Service Canada Referral for Long-Tenured Workers

A long-tenured worker who is eligible to receive EI regular benefits may request permission from Service Canada to receive benefits while in full-time training. A long-tenured worker is someone who received fewer than 36 weeks of EI regular benefits in the last 5 years and paid at least 30% of the maximum EI annual premium in 7 of the last 10 years.

To apply, the long-tenured worker must be enrolled as a full-time student in a program offered by a Designated Educational Institutions or Certified Educational Institutions. If eligible, they should apply for the EI Training Benefit immediately after their interruption of earnings, or while receiving other benefits.

Service Canada does not subsidize full-time training. A long-tenured employee who goes to Service Canada for permission to participate in full-time training while on EI must pay for it themselves. As such, even if a long-tenured employee is eligible to receive EI benefits while in full-time training, they should first check if they are eligible for free or subsidized training from their provincial, territorial, or Indigenous employment office.

A decision by a benefits officer to deny this benefit to a claimant is non-appealable.

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