Employment Insurance Benefit Entitlement (8:VII)

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. Capable and Available

A claimant will be disentitled if the Commission has evidence (often supplied inadvertently by the claimant) to show that the claimant was not capable and available for work during a given period. For example, if a claimant volunteers the fact that he or she is only applying for jobs paying $20 per hour or more, the Commission could disentitle the claimant if there are few if any such jobs for which the claimant would be suitable. For an example of how unforeseen events can affect availability, see Canada (Attorney General) v Leblanc, 2010 FCA60. In this case, a desire to work was insufficient to establish availability because the claimant lacked proper clothing and a means to get to work as the result of a house fire.

1. Vacation and Travel

A claimant cannot collect benefits for times he or she is on vacation, as he or she must be ready for work to collect benefits. However, he or she can collect up to the day he or she leaves, and from the day he or she returns, if he or she becomes immediately available again. To avoid potentially onerous penalties, vacations – including short ones – must be properly recorded and reported.

The Customs Match program allows Human Resources and Skills Development Canada (HRDC) to match data from Canada Customs and Revenue Agency’s Customs Declaration form to determine whether an EI claimant has been out of Canada without notifying HRDC. Under the EI Act, a claimant is not entitled to receive EI benefits while not in Canada, except under certain circumstances.

2. Sickness

A claimant may receive up to 15 weeks of sickness benefits where he or she can prove that he or she was “incapable of work by reason of prescribed illness, injury or quarantine on that day, and that they would otherwise be available for work” (s 12(3)(c)). In theory, if the claimant is already receiving regular benefits from EI and is ill for even one day, that day must be recorded as a day on which he or she is not capable of or available for work, if that is indeed the case.

3. Attending Courses

A person attending a course full-time is usually considered only “available for work” as defined in s 18 if he or she was referred to take that course by an authority designated by the Commission (s 25(1)). Even if the course is part-time and improves the claimant’s chances of finding employment, the claimant may still be disentitled because he or she is considered unavailable for work. In these circumstances a claimant may attempt to prove availability, if the course does not interfere with the job search and he or she would immediately be able to accept an offer of employment.

An appeal can and should be made against a disentitlement due to taking an unauthorized course, although according to s 25(2), the Commission’s decision to refer a claimant to a course is not reviewable under s 112.

Persons attending full-time courses not approved by the Commission may still be entitled to EI benefits if they have established their eligibility by working part-time while attending classes and if they are still available for their previous hours of work on virtually no notice.

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. The only escape for such claimants is to convince the Commission, or the Referees 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 who worked 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 define ‘suitable work’ are contained in the Employment Insurance Regulations s 9.002-9.004. They are as follows:

• “the claimant’ s health and physical capabilities allow them to commute to the place of work and to perform the work” (9.002(a))
• “the hours of work are not incompatible with the claimant’s family obligations or religious beliefs” (9.002(b))
• “the nature of the work is not contrary to the claimant’s moral convictions or religious beliefs” (9.002(c))
• "the daily commuting time to or from the place of work is not greater than one hour or, if it is greater than one hour, it does not exceed the claimant’s daily commuting time to or from their place of work during the qualifying period or is not uncommon given the place where the claimant resides, and commuting time is assessed by reference to the modes of commute commonly used in the place where the claimant resides” (9.002(d))
• “by accepting the employment, will not be put in a less favourable financial situation than the less favourable of (i) the financial situation that the claimant is in while receiving benefits, and (ii) that which the claimant was in during their qualifying period.” (9.002(f))
• The employment does not arise in consequence of a stoppage of work attributable to a labour dispute (Employment Insurance Act, s 27(2))
• The level of earnings meets the requirements in EIR s 9.004 (see below)
• The similarity of the employment to the claimants past employment meets the requirements in EIR s 9.003. (see below)

The level of earnings and similarity of employment required vary based on how often the claimant has claimed EI benefits. Claimants are broken into three categories for the purpose of determining what constitutes suitable work. Employment Insurance Regulations (SOR/96-332)s 9.003 categorizes as follows:

1. Long-Tenured Workers

A claimant who has paid into EI seven of the past ten years and who has claimed 36 weeks or less of regular benefits in the past five years is considered a long-tenured worker. During the first 18 weeks of their EI claim in which they claim regular benefits, they need only accept jobs in their previous occupation that pay 90% of their previous wages. Following that, they must accept any jobs in similar occupations that pay 80% of their previous earnings.

2. Frequent Claimants

Claimants who have had three or more claims totalling 60 weeks or more in the past five years are considered frequent claimants and must be willing to accept a wider range of employment. For the first six weeks of their claim in which they claim regular benefits they must accept jobs in similar occupations with 80% of their previous earnings. Following that, they must accept any job paying 70% of their previous wages.

3. Occasional Claimants

Claimants who do not fit into either category above are considered occasional claimants. In the first six weeks in which they claim regular benefits, they must accept jobs in their previous occupation that pay 90% of their previous earnings. For the twelve weeks following that, they must accept jobs in similar occupations paying 80% of their previous earnings. Following that, they must accept any job paying 70% of their previous wages.

4. Proof of Search for Suitable Employment

Section 50(8) of the EI Act requires that a claimant prove he or she is 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 Employment Insurance Regulations (SOR/96-332) s9.001:

• (a) the claimant’s efforts are sustained;
• (b) the claimant’s efforts consist of
  • (i) assessing employment opportunities,
  • (ii) preparing a resumé or cover letter,
  • (iii) registering for job search tools or with electronic job banks or employment agencies,
  • (iv) attending job search workshops or job fairs,
  • (v) networking,
  • (vi) contacting prospective employers,
  • (vii) submitting job applications,
  • (viii) attending interviews, and
  • (ix) undergoing evaluations of competencies; and
  • (c) the claimant’s efforts are directed toward obtaining suitable employment.

C. Disqualification

There are two categories of disqualification: s 27(1) and s 30(1). The effects of disqualification differ depending on what category the disqualification falls into:

Section 27(1) states that a claimant is disqualified from 7 to 12 weeks of benefits when, without good cause, he or she:

• refuses a suitable employment offer;
• refuses to apply for suitable employment when aware that a position is vacant or is becoming vacant;

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