Digest of Benefit Entitlement Principles Chapter 19 - Section 2

19.2.0 Referred claimants

A claimant who is referred to a course or program of instruction or an employment activity under the employment benefits (Part II) needs to meet the definition of an "insured participant". An "insured participant" for the purposes of the employment benefits provisions ^{Footnote 1} is defined as being an unemployed person for whom:

1. a benefit period is established or whose benefit period has ended within the previous 36 months, or
2. benefit period has been established in the previous 60 months and who
   1. was paid maternity or parental benefits during the benefit period,
   2. subsequently withdrew from active participation in the labour force to care for one or more new-born children or one or more adopted children placed with them for the purpose of adoption, and
   3. is seeking to re-enter the labour force.

The Human Resources Investment Branch (HRIB) has clarified that a benefit period that is cancelled ^{Footnote 2} cannot be used to meet the definition of "insured participant" because a benefit period that is cancelled is deemed never to have begun ^{Footnote 3} . Consequently, the cancellation of a benefit period could affect a person's eligibility for employment measures where that person has no effective benefit period. It should be noted that when a new benefit period is established, canceling a previous benefit period does not create a problem: the claimant can now meet the definition of "insured participant" because a new "benefit period is established."

To be eligible for unemployment benefits, while their names are on a waiting list for a course or for an employment activity or while their proposal for a "Self-Employment" agreement is under consideration, claimants must be able to prove that they are unemployed and available for work.

Once a claimant is referred to a course or program of instruction or an employment activity pursuant to an authority delegated by the Commission, he or she is deemed to be unemployed, capable of and available for work for the duration of their participation in the course or program of instruction or employment activity ^{Footnote 4} . This legislative provision is a clear and specific exception to the general rule set out in the sections dealing with capability, availability and the state of being unemployed ^{Footnote 5} .

Consequently, these claimants will be considered unemployed, capable of and available for work for any day or during any period for which the referral to the course or the employment activity by a designated authority remains in effect. This is so even if they are in fact absent for part of the course or the employment activity, or the course or the employment activity is interrupted, for example during the summer break, provided the referral remains in effect.

Nonetheless, all claimants referred to such training or activity must still fulfill all other provisions under the Employment Insurance Act and Regulations.

There are no legislative provisions that would enable a person to demand that he or she be referred to a course or an employment activity. Referral is a discretionary power that only the Commission or its designate, may exercise when it deems it appropriate. Jurisprudence ^{Footnote 6} recognizes that neither a board of referees nor an umpire has the authority to make decisions in this area other than to determine whether the authorization was duly granted by the designated authority.

The decision to refer or not a claimant is not subject to appeal ^{Footnote 7} .

19.2.1 Allowances paid by the Commission

While insured participants collect unemployment benefits (Part I), they may also receive financial assistance under employment benefits (Part II) depending on the terms and conditions negotiated at the time of their referral. This financial assistance under employment benefits (Part II) may include a negotiated level of financial support to meet living expenses, the cost of tuition, the cost of child care, a transportation allowance, the cost of meeting employment needs arising because of a disability, a benefit top-up, etc. This financial assistance under employment benefits (Part II) is not deducted as earnings from unemployment benefits (Part I) ^{Footnote 8} except in specific situations ^{Footnote 9} .

Prior to being paid financial assistance under employment benefits (Part II), insured participants are encouraged to take advantage of any alternate funding, be it unemployment benefits (Part I) or other. It is unlikely that the case manager will authorize financial assistance under employment benefits (Part II) if alternate funding is available.

19.2.2 Earnings and allowances from employment benefits, courses, and programs

Earnings or allowances payable under Part II to a claimant for attending a course of instruction, or training to which there was a referral are not deducted from unemployment benefits payable under Part I ^{Footnote 10} , except in accordance with the regulations ^{Footnote 11} .

Earnings from employment under employment benefits (Part II) such as earnings received from employment on a Job Creation Partnership or from employment under a Self-Employment agreement are not deducted from unemployment benefits payable under Part I ^{Footnote 12} . Earnings that are not from employment under employment benefits (Part II) are deducted from unemployment benefits and are subject to allowable earnings ^{Footnote 13} .

However, the total amount of the earnings and allowances paid under Part II to a claimant who is referred are deducted from unemployment benefits payable in respect of those weeks where the following three conditions are present. The claimant ^{Footnote 14} :

1. originally did not have an interruption of earnings or sufficient insured hours to qualify for unemployment benefits or was disqualified or disentitled from unemployment benefits;
2. was paid earnings or allowances under Part II for certain weeks for attending a course or program of instruction or was paid earnings from employment for certain weeks of employment under the Job Creation Partnership employment benefit established by the Commission ^{Footnote 15} , and
3. subsequently becomes entitled to unemployment benefits (Part I) for those same weeks ^{Footnote 16} .

Employment under a Self-employment agreement under Employment benefits (Part II) is not mentioned in (2) because each claimant' self-employment agreement contains a clause that requires repayment of financial assistance (Part II) if unemployment benefits (Part I) subsequently become payable.

The total amount of any allowances payable to the claimant for attending a course of instruction, or training to which there was no referral are deducted from unemployment benefits payable in respect of any week of unemployment regardless of the source of that allowance ^{Footnote 17} . However any amounts paid in respect of dependant care, travel, commuting or a living-away-from-home or disability allowance, regardless of the source, are not deducted from unemployment benefits payable in respect of any week of unemployment whether the claimant is referred or not ^{Footnote 18} .

19.2.3 Voluntarily leaving employment to take a course or an employment activity

A person who leaves employment on the recommendation of an authorized official to take a course or program of instruction or employment activity to which he or she was referred is considered to have just cause for leaving that employment ^{Footnote 19} provided he or she leaves within a reasonable period, that is, generally no more than two weeks before the start of the course or the employment activity.

Depending on the particular circumstances, a person so referred may show just cause for leaving employment more than two weeks before the start of the course or the employment activity on presentation of credible documentation or with credible declarations on the necessity for preparations (ex. moving) which require more than two weeks.

In both instances, to be entitled to unemployment benefits for that period, the person is still required to meet the conditions of being unemployed, available and able to work before the beginning of the course or the employment activity and while the arrangements are being made–otherwise they are subject to a disentitlement.

19.2.4 Consequences of a disqualification

To ensure that income support is maintained while the claimant takes a course or an employment activity to which he or she has been referred ^{Footnote 20} , any unserved portion of a disqualification ^{Footnote 21} will be deferred for the period for which the referral to the course or the activity by a designated authority remains in effect ^{Footnote 22} .

Any portion of the disqualification not served when the claimant's benefit period ends shall be served in any subsequent benefit period established within two years after the event giving rise the disqualification ^{Footnote 23} .

However, a disqualification where the claimant lost an employment due to misconduct or voluntarily left the employment without just cause ^{Footnote 24} , cannot be deferred because the disqualification is imposed for each week in that benefit period for which benefit would otherwise be payable following the claimant's waiting period ^{Footnote 25} .

19.2.5 Refusal to be referred to a course or an employment activity

No disqualification is imposed when a claimant refuses to be referred to a course or an employment activity by the Commission or a designated authority. Training courses and employment activities are not mandatory. The intention is not to compel the claimant to attend a training program or an employment activity if he or she does not wish to do so.

A claimant who agrees to be referred to a course or an employment activity but fails to attend without good cause is subject to a disqualification ^{Footnote 26} . In such cases, the officer must determine the reason for the claimant's failure to attend the course or the employment activity in order to determine his or her entitlement to benefits.

19.2.6 Absence from the course or the employment activity

The claimant absent from the course or the employment activity for a given period for reasons related to capability, availability for work and unemployed status, is not disentitled from unemployment benefits for these reasons for any day or period during which the referral to a course or an activity is maintained by the designated authority ^{Footnote 27} . This interpretation applies whether the absence is or is not authorized.

According to the Human Resources Investment Branch: "We (HRIB) make an investment in a client to achieve a particular result and it's the result that matters. It is not important whether a client was absent on a given day or whether the absence was authorized, as long as the client will be able to complete the action plan successfully. If it comes to our attention that a client is frequently absent (even if it's with good cause) such that his/her ability to successfully complete the intervention is threatened, the case manager should discuss it with the client to get the client to correct the situation. If things reach the point where the client will not be able to successfully complete the intervention or withdraws or is expelled, then the referral and the financial assistance should be ended."

19.2.7 Disqualification — withdrawal from a course or an employment activity

A disqualification is imposed when the referral has been terminated for any of the following reasons:

• without good cause, the claimant does not attend or participate in the course, program or employment activity and, in the opinion of the Commission, it is unlikely that the claimant will successfully complete the course, program or employment activity ^{Footnote 28}
• without good cause the claimant has withdrawn from the course, program or employment activity ^{Footnote 29} ; or
• the organization providing the course, program or employment activity has expelled the claimant ^{Footnote 30} .

Consideration must be given to the existence or not of "good cause" in situations where a claimant has not attended or participated, or has withdrawn from a course, program or employment activity ^{Footnote 31} . There are no changes to the process of deciding what is good cause. Extenuating circumstances must be considered when a claimant is disqualified because of an absence, non-participation or withdrawal or an expulsion from a course, program or employment activity. The Agent considers the reasons for the non-attendance, non-participation, which resulted in the withdrawal or termination and makes the decision whether there was "good cause" and on the applicability and the length of a disqualification.

On another hand, there is no mention of "good cause" when the claimant is expelled by the organization providing the program ^{Footnote 32} ; suffice to say a) the claimant was referred, b) the claimant was expelled, and c) the referral has been terminated by the Commission ^{Footnote 33} . In this situation, the claimant is subject to a disqualification.

Of course, the course or program of instruction or employment activity must be one to which there is a referral to which the claimant has agreed ^{Footnote 34} . The referral is terminated before the disqualification is imposed. Any disqualification is imposed as of the next week to be processed ^{Footnote 35} .

The decision as to whether the non-attendance or non-participation makes it unlikely that successful completion will occur is at the discretion of the referring authority ^{Footnote 36} .

19.2.8 Disentitlement

A disentitlement that is in effect when the referred claimant begins the course or the employment activity is not automatically terminated except in cases where the disentitlement is related to capability, availability and being unemployed, because the claimant is deemed to have met these requirements ^{Footnote 37} .

As well, a disentitlement resulting from a stoppage of work attributable to a labour dispute may be suspended during the period for which the claimant is referred to a course or the employment activity if the claimant shows that he or she would have otherwise been entitled to unemployment benefits, that the absence from work was foreseen, and that steps in this direction were taken before the stoppage of work ^{Footnote 38} .

A disentitlement for reasons other than those mentioned above is not terminated until the specific conditions related to the disentitlement are met.

In some situations the claimant may be eligible for financial assistance under employment benefits (Part II) during the period where he or she is not entitled to receive unemployment benefits. Eligibility to this financial assistance (Part II) is established by the case manager. Should the claimant subsequently become eligible for unemployment benefits (Part I) for the same period, this financial assistance (Part II) may have to be deducted from those unemployment benefits ^{Footnote 39} .

19.2.9 Extension of the qualifying period

The qualifying period may be extended by the number of weeks during which the claimant was not employed in insurable employment because he or she was receiving financial assistance under employment benefits (Part II) ^{Footnote 40} and was not in receipt of unemployment benefits under Part I for those weeks ^{Footnote 41} . The maximum qualifying period is 104 weeks ^{Footnote 42} .

19.2.10 Extension of the benefit period

The benefit period is not extended for an individual referred to a course or a program of instruction or an employment activity ^{Footnote 43} . Once the benefit period terminates, the insured participants may then receive financial assistance under employment benefits (Part II) in accordance with the employment benefits provisions ^{Footnote 44} .

A claimant whose benefit period was established for seasonal fishing benefits and who was also referred on a course or program of instruction or an employment activity ^{Footnote 45} will have that benefit period terminate at the end of the week in which June 15 or December 15 falls, depending on whether the claimant is a summer or winter fisher ^{Footnote 46} . No extension will be granted beyond these dates.

19.2.11 Training outside Canada

A claimant who is attending a course or program of instruction outside of Canada, to which he or she was referred by a designated authority ^{Footnote 47} , is not disentitled for the sole reason that he or she is outside Canada ^{Footnote 48} . These claimants are considered to be unemployed, capable of and available for work during any absence, whether they are in Canada or not, provided the referral remains in effect. By policy, the Human Resources Investment Branch (HRIB) limits referrals outside of Canada to the work experience portion of the course or program of instruction and the acquisition of new technology or training not available locally, more conveniently, or more cost-effectively in Canada. However, should the HRIB make a referral that is an exception to their policy it will be accepted.

As well, a claimant outside Canada, with the approval of the Commission, in the course of the claimant's employment under the Self-employment agreement employment benefit ^{Footnote 49} or under a similar benefit provided by a provincial government or other organization ^{Footnote 50} is not disentitled from receiving unemployment benefits for the sole reason of being outside Canada. These claimants are considered to be unemployed, capable of and available for work during any absence, whether they are in Canada or not, provided the referral remains in effect.

19.2.12 Waiting period

A two week waiting period ^{Footnote 51} applies to the benefit period of a claimant referred to a course or an employment activity ^{Footnote 52} and no unemployment benefits (Part I) are paid during that period.

The waiting period for a "subsequent benefit period" established on or after June 30, 1996 for a participant in a Job Creation Partnership ^{Footnote 53} is not waived ^{Footnote 54} , contrary to the former UI Regulation 99.2.

However, the case manager may authorize the payment of financial assistance under employment benefits (Part II) during the two-week waiting period.

19.2.13 Being an inmate in any prison or similar institution

The Act does not provide for the payment of unemployment benefits to anyone who is an inmate of such an institution ^{Footnote 55} . The exception is when the claimant has been granted parole, day parole or temporary absence or a certificate of availability for the purpose of seeking and accepting employment in the community ^{Footnote 56} . Where the exception applies, the claimant is subject to the same rights and obligations as other claimants who are referred to training or employment activity under the Act.

In anticipation of a person's release from prison, the Human Resources Investment Branch (HRIB) may provide assistance such as labour market information, employment counseling, and career counseling. The HRIB, knowing the anticipated release date of an imprisoned individual, may make arrangements for training or an employment activity and even place his or her name on a waiting list for a course or activity. However, by Commission policy, the referral to training or employment activity ^{Footnote 57} may not take effect until the individual is available for participation in the labour market; i.e., until after release from incarceration.

19.2.14 Appeals

A decision of the Commission or a designated authority about the referral of a claimant to a course, program, or other employment activity ^{Footnote 58} or about a decision made in relation to employment benefits or support measures, other than the imposition of penalties ^{Footnote 59} related to this financial assistance, is not subject to appeal ^{Footnote 60} .

Any additional decision is subject to appeal in the usual manner ^{Footnote 61} .

19.2.15 Apprentices

Claimants referred by the Commission or a designated authority to an apprenticeship training course are subject to the same rights and obligations as other claimants referred to a course under the Act.

19.2.16 Feepayers

Feepayers are subject to the same rights and obligations as other claimants referred to a course, program or other employment activity under the Act ^{Footnote 62} . Feepayers who are referred may be entitled to income support in the form of unemployment benefits (Part I) but may not receive financial assistance under employment benefits (Part II).

19.2.17 Employment assistance services

Employment Assistance Services (EAS) provide employment interventions that help clients prepare for, find, get and keep jobs.

As already stated to receive unemployment benefits (Part I) a person must be unemployed, capable and available for work. The only exception to this is when a person is attending a course or program of instruction or training or is participating in an employment activity to which that person was referred ^{Footnote 63} , in which case the claimant is considered unemployed, capable of and available for work. This exception cannot apply to claimants who are participating in EAS since, by HRIB policy, they are not referred under the Act. Therefore, claimants participating in EAS have to be unemployed, capable and available for work as any other person claiming unemployment benefits.

Availability is assessed on a case by case basis, taking into consideration the particular circumstances of each. What is important to remember is that it is not the fact that a person is on training or participating in EAS (which could be a job finding club) that makes that person not available, rather it is the restrictions that the person imposes towards the acceptance of employment that may render that person not available for work.

Jurisprudence has provided numerous examples of what available for work means. A claimant shows availability for work when he or she establishes a willingness and readiness to accept any employment for which he or she is suited by skills, training and aptitude and for which there is a demand in the labour market. Jurisprudence has also defined availability as either a sincere desire to work, demonstrated by an 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 the chances of work ^{Footnote 64} .

19.2.18 Penalties

The Commission may impose a penalty ^{Footnote 65} for each act or omission of not more than the financial assistance provided, on a person for knowingly making false or misleading representations, including non-disclosure in relation to the application or request for assistance under an employment benefit, or for without good cause failing to attend, carry out or complete a course, program or activity for which the assistance was provided or was expelled from it. This penalty can only be imposed if financial assistance has been paid in relation to employment benefits or support measures ^{Footnote 66} .

The maximum penalty for each act or omission may be equal to the cost of the course plus an amount equal to any other expenditure relating to the course. A liability to return the amount of the penalty is established and can be collected by deduction from any future unemployment benefits that may be come payable. This could be in addition to any disqualification that may be imposed ^{Footnote 67} as a result of unemployment benefits being paid.

Amounts repayable ^{Footnote 68} and penalties ^{Footnote 69} are a debt due to the Crown and may be recovered from benefits ^{Footnote 70} .

The Human Resources Investment Branch (HRIB) advises that the policy on how and when penalties ^{Footnote 71} for receipt of financial assistance under employment benefits (Part II) may be applied has not yet been developed, and that pending its development penalties should not be imposed.