A claimant will not be entitled to receive benefit unless:
Section 18 Employment Insurance Act Employment Insurance Act
For the purpose of establishing availability, the Commission may require a claimant to prove that he or she is making reasonable and customary efforts to obtain suitable employment.
Section 18 Employment Insurance Act and subsection 50(8) Employment Insurance Act Employment Insurance Act
Availability is a willingness to work under normal conditions without unduly limiting the chances of obtaining employment. It is a question of fact which requires that all the circumstances of a particular case be examined. A review of all the facts and a consideration of all the various factors involved must be carried out.
"Availability is usually described, in the case law, either as a sincere desire to work demonstrated by attitude and conduct and accompanied by reasonable efforts to find a job, or as a willingness to reintegrate into the labour force under normal conditions without unduly limiting one's chances of obtaining employment."
Availability is demonstrated by a claimant's conduct and attitude. It requires the making of reasonable and customary efforts to obtain suitable employment.
Availability must be determined by analyzing three factors: a claimant's desire to return to the labour market as soon as a suitable job is offered; the expression of that desire through efforts to find a suitable job; and, not unduly limiting the chances of returning to the labour market.
Faucher v. C.E.I.C. (1997), 215 N.R. 314 (F.C.A.) A-57-96 Judgment Of The Federal Court Of Appeal
It is a well-established rule that a claimant who imposes unreasonable restrictions on the type of work he or she is looking for or, on the area in which he or she is willing to work, fails to prove availability. The reasonableness of a restriction will be assessed on the basis of the claimant's attitude, conduct, and taking into account all of the circumstances.
The burden of proof is on the claimant to show that he or she is available during the whole period of time in question. An inadequate job search may lead to the conclusion that a claimant is not available for work.
Robitaille v. C.E.I.C., A-504-88, February 23, 1989, (F.C.A.) Judgment Of The Federal Court Of Appeal
Cutts v. Canada (A.G.), A-239-90, November 1, 1990, (F.C.A.) Judgment Of The Federal Court Of Appeal
The question of availability is an objective one. It does not depend upon whatever personal reasons a claimant may have for placing any restrictions upon his or her willingness to enter into the labour force. A claimant's availability must be objectively determined. The fact that a claimant believes in good faith that he or she is unable to work, does not make him or her either available or unable to obtain suitable employment within the meaning of the Act.
Canada (A.G.) v. Joint (1989), 107 N.R. 212 (F.C.A.) A-1049-88 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Bertrand (1982), 46 N.R. 527 (F.C.A.) A-613-81 Judgment Of The Federal Court Of Appeal
There are three criteria which a claimant must establish in order to meet the requirement of availability:
Faucher v. C.E.I.C. (1997), 215 N.R. 314 (F.C.A.) A-57-96 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Bois, A-31-00, May 30, 2001 (F.C.A.) Judgment Of The Federal Court Of Appeal
A claimant who, after becoming unemployed, moves to a place with fewer employment opportunities, is restricting his or her chances of employment. Claimants in this situation will be given a certain period of time in which to explore the new labor market, but will then be required to broaden their job search to other geographic locations.
Canada (A.G.) v. Whiffen (1994), 165 N.R. 145 (F.C.A.) A-1472-92 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Higgett, A-1388-92, February 28, 1994 (F.C.A.) Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Blondahl, A-209-93, February 28, 1994 (F.C.A.) Judgment Of The Federal Court Of Appeal
A claimant's relocation to an area with limited job opportunities in order to accompany a spouse, must be regarded as a move which the claimant had no option but to make in order to preserve the family unit. Claimants who move for this reason do so for reasons entirely beyond their control.
Canada (A.G.) v. Whiffen (1994), 165 N.R. 145 (F.C.A.) A-1472-92 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. DeVos (1994), 165 N.R. 152 (F.C.A.) A-261-93 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Kuntz (1994), 167 N.R. 154 (F.C.A.) A-1485-92 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Dodsworth, [1984] 2 F.C. 193 (F.C.A.) A-878-82 Judgment Of The Federal Court Of Appeal
A claimant in these circumstances is to be treated in the same manner as residents of an area of limited or no employment opportunities. In other words, they are to be given some real opportunity to find employment in the new location, no matter how "forlorn" the chance of success, before being required to broaden their job search.
Employment insurance benefits are not meant to subsidize claimants who leave the work force to attend school. Claimants in this situation must still prove their availability for employment. Whether a full-time student is available is a question of fact.
Canada (A.G.) v. Floyd, A-168-93, April 27, 1994 (F.C.A.) Judgment Of The Federal Court Of Appeal
There is a presumption that a claimant who is enrolled in a full-time course of instruction is not available. However, this is a presumption of fact which can be rebutted. It can be rebutted by proof of exceptional circumstances.
Landry v. Canada (A.G.) (1992), 152 N.R. 164 (F.C.A.) A-719-91 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Mercer, [1977] 2 F.C. 389 (F.C.A.) A-690-75 Judgment Of The Federal Court Of Appeal
The most effective way to rebut the presumption of non-availability, is for a claimant to demonstrate a history of full-time or part-time work while attending a course of instruction. A claimant must be able to establish a pattern which demonstrates his or her ability to work and attend the full-time course of instruction.
Landry v. Canada (A.G.) (1992), 152 N.R. 164 (F.C.A.) A-719-91 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. MacDonald, A-672-93, May 31, 1994 (F.C.A.) Judgment Of The Federal Court Of Appeal; affirming CUB 23283 Umpire Decision
The finding of a Board about whether a pattern of combining work and school has been established is a finding of fact.
Jean v. Canada (A.G.), A-787-88, May 3, 1989, (F.C.A.) Judgment Of The Federal Court Of Appeal; affirming CUB 15439 Umpire Decision
A history of part-time and summer employment together with a course of instruction or attendance at school may not be sufficient to show availability since there is nothing exceptional about this behavior given that it is what most students do.
Jean v. Canada (A.G.), A-787-88, May 3, 1989, (F.C.A.) Judgment Of The Federal Court Of Appeal; affirming CUB 15439 Umpire Decision
In many cases, the Commission will give a claimant a warning that he or she must expand his or her job search in order to satisfy the requirement of availability under the Act.
However, where it is clear that a claimant is truly unavailable, the Commission's failure to provide him or her with advance warning will not mean that the claimant is automatically entitled to benefits.
Canada (A.G.) v. LeDuc, A-134-95, January 10, 1996 (F.C.A.) Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Stolniuk, A-686-93, September 28, 1994 (F.C.A.) Judgment Of The Federal Court Of Appeal
A claimant on temporary lay-off who is awaiting imminent recall should not be immediately disentitled to benefits on the grounds that he or she is not seeking other employment.
Canada (A.G.) v. MacDonald, A-672-93, May 31, 1994 (F.C.A.) Judgment Of The Federal Court Of Appeal; affirming CUB 23283 Umpire Decision
However, the claimant cannot rely upon recall as the best opportunity for employment. Employment insurance benefits are not intended to support a claimant awaiting recall to work, even where the anticipated period of unemployment is short. Where a claimant in these circumstances has conducted only a minimal job search, the Board of Referees is entitled to conclude that the job search fails to show that the claimant was really on the job market.
Khalid v. Canada (A.G.), A-337-89, March 6, 1990 (F.C.A.) Judgment Of The Federal Court Of Appeal affirming CUB 16710, leave to Supreme Court of Canada refused (1990), 119 N.R. 412 (S.C.C.) Umpire Decision