Digest of Benefit Entitlement Principles Chapter 10 - Section 14

10.14.0 Personal business

Rather than being inactive while waiting to hear about job applications, claimants sometimes become involved in other activities which take up time during the day.

The time devoted to such work, intentions for the near future, the need for and urgency of the activities, and the efforts made to find work, are some of the main factors to consider in determining whether a claimant continues to prove they are available for work while engaged in such activities.

As a general rule, a strong presumption of non-availability arises when a claimant spends several hours a day on activities not geared to becoming re-employed. To rebut this presumption, claimants in this situation must be able to show that their primary concern is finding employment, by providing proof of their efforts to find work.

10.14.1 Volunteer work

Volunteer work is commonplace in our society and as long as the hours involved are minimal, and there is no actual or eventual remuneration in exchange for the volunteer work, this is generally not an activity that would cast doubt on a claimant’s availability for work. However, a presumption of non-availability would arise if a claimant is spending a significant number of hours completing volunteer work, especially if little or no time is left to seek employment. In these situations, it would be up to the individual to provide adequate evidence to rebut such a presumption (CUB 57703A, CUB 77869). In addition, should the claimant be paid for the services rendered, either at the time the volunteer work is performed or at a later date, this could cast doubt on their availability, as well as on their unemployed status (Digest 4.5.0 , Digest 4.6.9).

It is also possible for a person to be taken on by an employer on an internship or trial basis, and receive no payment for the work performed during this period. EI benefits are not intended to provide compensation for the wages not paid in this type of arrangement. In order to prove availability for work, such a claimant must be willing to continue to seek and accept suitable employment elsewhere, and must continue to make reasonable and customary efforts to obtain such employment (CUB 74221, CUB 80699. In addition to a claimant’s availability, the question as to whether or not the claimant is actually unemployed, must also be examined in these types of cases (Digest 4.5.2).

10.14.2 Building and repairs

A presumption of non-availability arises when the work undertaken to build or repair premises with the intention of establishing a profitable business has an element of necessity, urgency or importance. This presumption is much stronger when the evidence indicates that the claimant is spending a greater number of hours doing the work than seeking employment (CUB 65452, CUB 76152).

In cases where a presumption exists, the onus is on claimants to rebut it by showing that their primary concern is finding employment. In addition to conducting a reasonable job search, they must show that they would not hesitate to reduce or abandon their activities if an opportunity for suitable employment arises. Non-availability is evident in cases where claimants who have voluntarily left their employment specifically to devote more time to their own personal activities, or have refused an employment opportunity for this reason.

For claimants who are engaged in building or repairing their business or other premises, it is not sufficient to show that they are available for work. They must also prove that they are unemployed while being engaged in these activities (Digest 4.6.6)

10.14.3 Starting a business

In the case of claimants who are engaged in preliminary work required before going into business, or those who are about to start operating a business, the first question to determine is whether they are in fact unemployed (Digest 4.6.2 , Digest 4.6.6 ), while engaged in these activities. Being unemployed is not all that is required to remain entitled to benefits; availability for work other than for their business, must also be proven. When looking at both questions of whether the claimant is unemployed and available for other work while trying to set up a profitable business, some of the factors to consider apply to both issues at the same time, especially with regards to the claimant's intentions and the amount of time devoted to the project. Often the 2 issues can be regarded together and a decision made as to whether the claimant has proven to be unemployed and available.

A claimant's intentions are clear when the facts show a preoccupation with business preparations and they are not making any reasonable and customary efforts to find work, as required by the legislation. The presumption of non-availability will be even stronger if the evidence indicates that the claimant devotes a significant number of hours to the project, or if this was the reason for voluntarily leaving or refusing work (CUB 72138, CUB 77869).

Even though their availability may be accepted, this does not mean that they are unemployed. Even workers who have full-time employment may at times make considerable efforts to find a better job, however, this does not amount to being unemployed. The rules to be applied in determining when a claimant is unemployed are discussed in chapter 4 of this Digest.

In cases where claimants are disentitled from benefits for failing to prove they are unemployed, the disentitlement will cover full calendar weeks, since according to the legislation the question to determine is whether or not each week under consideration is a week of unemployment (EIA 11). As for partial weeks, the legislation provides for a deduction to be made from the benefits payable for that week, in proportion to the income arising out of the business for that week (EIR 35(2), EIR 36(6)). It is often difficult to assess the income arising out of a business in the first few days of operation. For this reason, the practice is to consider the claimant as not available for those days, so that the deduction to be made becomes easily calculable. This is because, even though they may have received little to no actual earnings, the fact that their efforts are mainly concentrated on making their business viable and not on obtaining other suitable employment, amounts to non-availability for the purposes of the EIA.

10.14.4 Family business

It is not uncommon for an employed person to assist in running a family business after working hours, and it seems reasonable that the assistance given would increase during a period of unemployment. This situation is most frequent in cases where a claimant’s family member operates a business.

The first question to determine is whether a claimant's assistance can be compared to the services an employee of the business would provide under the circumstances. Depending on the answer, claimants in this situation may be required to show not only that they are available for work, but also that they are unemployed (CUB 74837B). The latter issue is dealt with in chapter 4 of this Digest.

With respect to availability, claimants, as recipients of EI benefits from the public fund, are required to show that their primary concern is to find employment. They must be able to provide evidence of personal efforts to find work, when requested by the Commission. A strong presumption of non-availability arises in cases of claimants who devote most of their time to helping with a business rather than looking for employment (CUB 66217).

10.14.5 Jury duty and court orders

On occasion a claimant is called upon to perform jury duty, a service which is extremely important in our judicial system. The intent of the legislation is to allow those individuals to perform their civic duties and continue to receive employment insurance benefits (EIA 18(1)(c)):

"A claimant is not entitled to be paid benefits for any working day in a benefit period for which the claimant fails to prove that on that day the claimant was . . .

(c) engaged in jury service".

Engagement in jury service includes not only individuals who have been sworn in as members of a jury for a specific trial, but also those who have received a general duty call in which they form a group of potential jurors who may later be selected to hear specific trials. Jury service also applies to a coroner's inquest.

A declaration of non-availability by a claimant for being engaged in jury service will not result in a disentitlement. A disentitlement related to capability or availability that is in effect when the claimant is engaged in jury service will be suspended for that period. However, these claimants must still fulfill all other qualifying and entitlement conditions. Receiving a subpoena to appear as a witness at a criminal trial cannot be equated to jury duty (CUB 69306).

The conditions imposed by a court order will often prevent a claimant from establishing their availability for work. Such was the case where a court order was imposed on a claimant to undergo closed treatment in an establishment similar to a prison (CUB 59851), where a suspended sentence of imprisonment gave rise to a court order requiring that the claimant stay at home (CUB 61368), and where following a serious criminal charge, a court ordered that a claimant be hospitalized so that his criminal responsibility could be evaluated (CUB 69572). In addition, a claimant who takes a leave of absence from employment to care for a child who is in the claimant’s custody pursuant to a court order would not be able to establish that they are available for work (CUB 70563). Likewise, a claimant who leaves employment in order to comply with a court order that they reside with the parent of a child while the parent is caring for the child, would also be unable to establish their availability for work (CUB 78077).

10.14.6 Running for office

Claimants are not normally considered to be available for work when running for an election in the near future, and while spending most of their time on the election campaign. This is particularly true in cases where a claimant temporarily left their employment for this purpose. EI benefits were not designed to provide compensation for the loss of wages in such a situation.

In the case of claimants who contend that they remain available and keep looking for work, even while organizing their election campaign, the personal efforts made to obtain work in the meantime, among other factors, will be used in determining their availability. If the claimant's willingness to accept work depends on the results of the election, then availability is not proven until at least, the day after the election.

[September 2019]