Digest of Benefit Entitlement Principles Chapter 10 - Section 12

10.12.0 Training courses and employment measures

The Commission offers a wide variety of programs for improving the employability of persons who require assistance to overcome real or potential obstacles in the labour market. Claimants selected within the training component of these programs are referred under EIA 25(1). The relevant legislation provides exceptions allowing claimants to attend training courses or programs and continue to receive EI benefits. Many claimants, because of a difficult economic climate with limited employment opportunities, or out of personal interest, decide to take courses on their own initiative. These claimants must meet the normal requirements concerning availability and capacity for work, in the same way as any other claimant claiming regular benefits.

10.12.1 Persons referred to training courses or programs

When claimants are referred to training or other programs by an authority designated by the Commission (EIA 25[1], Digest 19.1.1), they are deemed to be unemployed, capable of and available for work for the duration of the training. The provisions of this subsection constitute a clear and specific exception to the general rule found in the legislation in relation to unemployment (EIA 11), availability and capacity for work (EIA 18[1][a], CUB 79668).

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 training by a designated authority remains in effect. This may also be the case if they are in fact absent from the training for short periods.

All claimants referred to such training must still fulfill all other provisions under the act and regulations.

10.12.2 Persons attending training on their own initiative

Before rendering a decision regarding the availability of a claimant who is attending training on their own initiative, the Commission will first consider whether the claimant could be referred to a similar training course, pursuant to EIA 25(1) (Digest 19.2.0). If so, and a referral is made, the claimant would not be required to demonstrate that they were unemployed, capable of and available for work. If not, the Commission will annotate the reasons why this option is not available to the claimant before determining whether they are available to work while taking training.

10.12.2.1 Legislative authority

Claimants who attend training courses on their own initiative, without being referred by an authority designated by the Commission, must demonstrate they are unemployed (EIA 11), capable of and available for work, and unable to obtain suitable employment (EIA 18[1][a]) in the same manner as any other claimant. It is essential they continue to seek employment to maintain entitlement to regular benefits, and they must demonstrate attendance at the training has not created obstacles to their availability (CUB 78106, Federal Court of Appeal [FCA] A-56-96)

10.12.2.2 Proof of availability required

The proof of availability required of a claimant attending non-referred training is the same as that required of all claimants applying for regular benefits in other circumstances. The claimant must be prepared to accept a suitable job as soon as possible, not set conditions that would unduly limit their employment opportunities, and behave in a manner that indicates a sincere desire to work (FCA A-56-96, CUB 59837, CUB 69340).

Whether training requires in-person attendance or is completed virtually or by correspondence is of little importance when determining if the training leads to a presumption of non-availability. While a lack of in-person attendance requirements may demonstrate some flexibility for the claimant to seek and accept work, the conditions of availability cannot be presumed to be met in cases of a virtual or correspondence training in which studies are intensive enough to call into question the possibility of pursuing those studies while seeking or maintaining employment (CUB 60222).

10.12.2.3 Fact-finding

Fact-finding is the same as for any other situation where a claimant’s activities call the availability for work into question (CUB 79013). Even in cases in which a decision regarding availability may appear clear (such as a claimant stating they are not seeking or able to accept any work due to their course), thorough and relevant fact-finding is always required (Digest 10.12.2.6). The same approach applies for any period during which training is interrupted.

The facts can be evaluated, and a determination made as to the claimant’s credibility, only once all the information is gathered. A claimant may demonstrate availability or non-availability for work, and whichever the case, documentation on the claim file must clearly support the decision made by the Commission (CUB 78403).

10.12.2.4 Contextual analysis

Context is the situation in which an event occurs that can help explain it, hence the question of availability must be analyzed considering the particular circumstances of each case. It is the overall consideration of the claimant’s personal situation and intentions that is used to determine whether a claimant pursuing non-referred studies is available according to the legislation.

Only when fact-finding is thorough, relevant, and complete can a contextual analysis of a claimant’s file be completed and lead to a Commission decision. Because each person's situation is unique, availability is assessed based on the claimant’s own situation, and not on the circumstances of someone else in a similar situation.

10.12.2.5 Presumption of non-availability

Claimants who are taking full-time training on their own initiative must rebut a strong presumption of non-availability (FCA A-719-91). These claimants are not automatically considered unavailable for work, nor do these claimants automatically lose entitlement to regular benefits. It must be determined whether taking the training places undue restrictions on their availability, which will reduce their chances of finding employment (CUB 70915, CUB 72359).

Although taking training is a commendable activity in and of itself, jurisprudence clearly states students must still demonstrate their availability for work for the duration of the training and students must produce convincing evidence to rebut the presumption of non-availability. A claimant must be able to demonstrate an intention to immediately accept suitable employment, efforts to find such suitable employment, and an absence of personal restrictions that could overly limit opportunities to find employment outside of the training (Federal Court of Appeal [FCA] A-56-96, Social Security Tribunal [SST] AD-23-585). A claimant may be able to successfully rebut the presumption of non-availability through exceptional circumstances by demonstrating either a willingness to abandon their training to accept suitable employment, or through a recent history of being regularly employed while taking training and sustained efforts to re-enter the labour market (FCA A-29-22). Such a history must be substantial enough to validate the regularity of the employment, establishing both continuity of work and a specific pattern of work (FCA A-566-04). Continuity will not be shown when the employment had been for an intermittent, sporadic, occasional, or on-call basis. A specific pattern indicates, in terms of a schedule, a set number of given hours or days, and that this pattern regularly repeated itself.

A claimant who has demonstrated they are prepared to abandon the training to accept suitable employment would be more successful in rebutting this presumption. However, a claimant who lost or abandoned their employment, or reduced their availability with their employer to a significant degree, solely due to a scheduling conflict between their work and studies may have increased difficulty demonstrating an intention to prioritize employment over training and to make concerted efforts to find and accept suitable employment (FCA A-556-04, SST AD 23-86, CUB 73932, CUB 74693).

10.12.2.6 Factors to consider

Numerous factors must be considered in determining the extent to which taking training affects the claimant's availability.

The restrictions arising from following the training can be compared to restrictions related to wages, type of work or hours of work. The limitation these restrictions place on the chances of finding employment must be determined. Important considerations are the intention and attitude of the claimant. They are necessary to determine if the claimant's intent is to focus on becoming gainfully employed or on completing the training, by assessing the actions the claimant has taken to allow for immediate acceptance of employment, should an offer be made.

In some cases, it may be helpful to get from the claimant additional information such as, registration guide, training timetable, homework expected, exam schedules, laboratory schedules required to complete the training course, statement of tuition fees, or details of student loan(s) or student grant(s).

Consideration must not be limited to a single factor to rebut of the presumption of non-availability. In reviewing the file, adjudication must account for all circumstances and facts, such as (FCA A-29-22, FCA A-556-04, CUB 61560A, CUB 76708):

• the history and pattern of any employment while undertaking full-time studies
• the credibility of the claimant's stated ability and willingness to immediately accept work if a suitable job is offered
• the claimant's willingness to abandon the training in favour of employment
• the efforts made demonstrating the claimant's priority is to find employment
• whether the training is being taken as part of a degree or diploma program or out of interest
• the number of hours of training per week, the workload outside of time in class, and the duration of the training course
• the flexibility of the training schedule or mandatory attendance requirements
• the sums invested
• whether a portion of the training fees may be refunded if abandoned
• the conditions of entitlement to a student bursary or student loan
• any other restrictions the claimant has imposed in their job search or availability

The assessment of all the subjective and objective circumstances and facts and the conditions placed on accepting employment will help determine the effect the training has on the claimant's availability.

10.12.2.7 Employment opportunities in the labour market

It is necessary to obtain specific details on the nature of the employment the claimant is prepared to accept and the conditions under which this work will be accepted. Then, it must be determined if the skills and/or experience of the claimant will allow for reasonable prospects of employment within these conditions.

What must then be determined is whether the terms and conditions of the claimant's availability are restrictive within the area's labour market. It is therefore necessary to obtain and evaluate the labour market information to determine if attendance at the training is detracting from the claimant's chances of obtaining employment (CUB 53156, CUB 66265).

For example, the claimant resides in an area in which there is little or no possibility of employment and has experienced many weeks of unsuccessful job search and difficulty finding employment because of variable conditions in the labour market. Faced with poor labour market conditions, a claimant (including seasonal employment workers and those living in remote regions), while remaining available and searching for work, may decide to take training rather than remain inactive.

When deciding in such cases, it is necessary to take into account factors related to the labour market in terms of whether employment opportunities are limited; or whether local labour market conditions are good, and the claimant should be able to become re-employed.

There is a degree of flexibility when assessing the claimant's availability in light of the local labour market. However, in order to conclude that a claimant's availability in these cases is proven, the training should be of secondary importance and should not be an obstacle to seeking and accepting suitable employment if the labour market improves. In this context, once availability has been accepted in these situations, the claimant's ongoing availability should be examined periodically as the labour market evolves (CUB 74921).

10.12.2.8 Hours of work

An assessment of all the facts and conditions placed on accepting employment, must be considered to determine the effect of the training on the claimant's availability.

While no single factor alone can rebut the presumption of non-availability, a recent and significant history of being regularly employed while studying may assist in determining if the claimant's availability is not unduly limited by their training course. A claimant with such a history must further demonstrate a willingness and ability to work a similar number of hours and remain available for a similar schedule to their previous employment (SST AD-23-86). These hours must be reasonable given conditions in the labour market.

As such, labour market information must be considered in these cases, particularly if the evidence is unclear as to the possibility of suitable employment during certain hours. This will assist in deciding if the hours of work under which the claimant is willing to work afford reasonable opportunities for employment.

A claimant must not reduce or restrict the available hours of work beyond what is reasonable given their history of employment while engaged in training (FCA A-29-22). For example, a claimant cannot limit themselves to only being available to work on weekends or a few hours per week due to training (SST AD-21-382). The claimant must also demonstrate a willingness and ability to re-enter the labour market, by making sustained job search efforts for employment available during hours the claimant is ready to accept work, without imposing restrictions other than the training that unduly limit the opportunity to find employment (FCA A-29-22, SST AD-23-898).

10.12.2.9 Foreign students attending non-referred training

In order to determine a foreign claimant's entitlement to regular EI benefits while studying in Canada, the relevant facts must be examined to confirm:

1. the claimant has a valid social insurance number (SIN)
2. the claimant's permit allows the claimant to work in Canada, and under what conditions
3. the claimant can prove they are available for work pursuant to the legislation (EIA 18[1][a], EIA 50[8])

As with all workers in Canada, a valid SIN is required to be legally able to obtain employment. For both foreign students and workers, the SIN will begin with 900.

The permit obtained indicates whether or not the claimant is eligible to work while studying, and under what conditions the claimant is able to accept work, such as where the claimant is eligible to seek work. A student's ability to work while studying depends on the permit's conditions, their status as a full-time or part-time student, and whether they are seeking employment during the school term or during scheduled breaks . The claimant must provide a copy of their permit to the Commission in order for these conditions to be examined. For example, one study permit may indicate a claimant is limited to "on-campus employment", while another may allow off-campus employment but limit the claimant to 20 hours of work per week during the school term. It must then be determined if the conditions restrict the claimant's ability to obtain employment. The permit is a key piece of evidence in determining a claimant's availability (Digest 10.2.4).

More information regarding non-referred foreign students' ability to work while studying is available through Immigration, Refugees and Citizenship Canada (IRCC).

Once the above conditions are fulfilled, the claimant's availability will be determined per the conditions described throughout the rest of this chapter. Each case requires a full review of the circumstances of the claimant to determine whether they are entitled to benefits. Facts must be obtained regarding their willingness to accept all hours of work available, as well as their intention to seek such employment (SST AD-22-45). When requested to do so, the claimant must be able to provide evidence they are making reasonable and customary efforts to obtain employment within the legal restrictions of the relevant permit to prove their availability for work (SST AD-22-115, EIA 18[1][a], EIA 50[8]).

10.12.2.10 Non-availability

Where a claimant states they are not actively seeking employment; or are unavailable to accept suitable employment because of their training course; or when assessment of all facts in the file demonstrates the claimant's intention and primary interest are to attend the training rather than to obtain a job immediately, a disentitlement is appropriate.

[September 2024]