Digest of Benefit Entitlement Principles - Chapter 10

CHAPTER 10 AVAILABILITY FOR WORK

10.11.0 ABSENCE FROM HOME
10.11.1 Visiting Family or Friends
10.11.2 On Vacation
10.11.3 Looking for Work
10.11.4 Sickness or Death in Family
10.11.5 Staying at the Cottage
10.11.6 Hospitalization
10.11.7 Imprisonment
10.11.8.0 Out of Canada: 10.11.8.1 Calculation of the 7 or 14 days period; 10.11.8.2 Regular Benefits and the Availability provision; 10.11.8.3 Special Benefits; 10.11.8.4 Job Search; 10.11.8.5 Training and Self-Employment Employment Benefit

10.11.0 Absence from Home

Absence from home would suggest that a claimant is not available for work. This presumption could be stronger or weaker depending on the reason for the absence. Here are the situations which usually come into play in this subject area:

visiting family or friends,
on vacation,
looking for work,
sickness or death in the family,
staying at the cottage,
hospitalization,
imprisonment,
out of Canada.

It is wrong to assume that claimants must obtain permission from a Commission before leaving their home area, or that absence from home makes one automatically unavailable for work. On the other hand, simply advising the office before leaving or the fact that no job opportunity arises during their absence does not automatically mean that they will be considered available.

10.11.1 Visiting Family or Friends

To go away for a few days to visit close friends and family is a normal occurrence in our society. As far as the legislation is concerned, weekend trips are not an issue¹. What the legislation does stipulate, however, is that a claimant be available for work from Monday to Friday².

Availability will not be questioned for a short occasional absence of two days or less if it occurs during a period in which the claimant is, from every other indication, available for work³.

In cases where an effort has been made to inform the Commission before leaving on a visit or where arrangements have been made at home to be reached without delay in order to return within 48 hours in the event of an employment opportunity, a longer absence of up to a week may be accepted without questioning further the claimant's availability.

For longer absences, however, the claimant's availability in this passive sense cannot be regarded as adequate. The reason for this is that in the active sense, claimants are expected to be in search of employment and are not exempt from this obligation while away from home⁴.

10.11.2 On Vacation

Leaving home to take a vacation is in direct opposition to the concept of availability. Regardless of the area visited or the duration of the trip, a claimant in this situation fails to prove availability for work¹.

Even claimants who have made arrangements before leaving to be reached immediately if a job opportunity arises or those who have advised the office before leaving will be considered not available². The purpose of the legislation is to provide an indemnification to claimants who devote their time to looking for work.

The above considerations also apply when the claimant is just using lay-off time to take a vacation.

Jurisprudence Index/availability for work/absences from home/on vacation/;
M. Baillargeon (A-219-93, CUB 20728A); see 10.4.2.1, "Immediate Availability".

10.11.3 Looking for Work

An absence from home for the sole purpose of exploring job opportunities in another area is totally consistent with the concept of being actively available for work. Unless the reason for the absence is questionable, claimants in this situation will be considered available for work.

To prove availability, especially in cases where the absence is for a long period, claimants may be requested to specify the efforts made, list the employers contacted and provide other relevant information. Vague or unsatisfactory answers could work to their disadvantage¹.

Jurisprudence Index/availability for work/absences from home/personal reasons/.

10.11.4 Sickness or Death in Family

There is no exemption from the requirement of proving availability when a claimant goes away to be near a sick relative¹. Nevertheless, in the passive sense, availability can be accepted as proven where such an absence is for one week or less. Thus, if it is clear that the claimant has made arrangements to be reached without delay in the event of an employment opportunity and is ready to return home within the next 24 hours or at the most, 48 hours, availability will be considered proven. Beyond that seven day period the claimant becomes subject to a disentitlement as of the eighth day of the absence.

In the case of death in the family the claimant will be considered to be available during an absence of up to 7 days. Here also a claimant will be considered available if arrangements have been made to be reached without delay². When the absence extends beyond the week the claimant becomes subject to a disentitlement as of the eighth day of the absence. Of course, availability is not proven if, in such a situation, the claimant is unable or unwilling to return home upon being made aware of an employment opportunity. This also applies to a claimant who has to leave work precisely for this reason³.

10.11.5 Staying at the Cottage

Staying at the cottage for part of the time does not necessarily amount to taking a vacation. It is a common practice even for those with jobs, to commute from the cottage. However, this does not mean that a claimant is exempted from searching for employment while away at the cottage¹. The presumption of non-availability arises when the cottage is a long way from home and the claimant lives there almost all the time.

In one case, where a claimant had gone to a beach for a week not too far away from home while awaiting recall to employment, it was decided that availability was proven. However, in another case where the claimant appeared more interested in camping than looking for work, availability was not considered proven.

The decision to be taken in this situation is largely based on the concept of immediate availability discussed in this chapter².

10.11.6 Hospitalization

It is clear that claimants in hospital fail to prove that they are available for work. Any statement to the effect that they are still able to work is irrelevant¹. The only question to consider is their possible entitlement to sickness benefits.

A presumption of non-availability and incapacity does not necessarily exist with respect to the few days just preceding one's admission in hospital. It is not uncommon for people to be able to work up to the day of admission. The nature of the illness would be a more relevant factor to consider in this respect. Claimants who do not seek work while awaiting a call from the hospital for admission fail to prove that they are available.

A claimant could be said to be available for work on the day of discharge from hospital if availability was shown for at least half the day. This would also apply to the day of admission if the claimant were able to work up to that point in time.

In one case, it was held that availability for work was shown even though the claimant was attending a clinic during the day to undergo treatment for alcohol addiction.

Jurisprudence Index/availability for work/incompatible situations/hospitalization/.

10.11.7 Imprisonment

Whether or not they contend to be available, persons incarcerated in a penal institution are disentitled from benefits unless they have obtained prior permission to be away from prison for part of the day¹. If they have not, availability is not a factor for consideration². Nor is a distinction required between pre-trial custody and incarceration.

With respect to the day of arrest, availability for work is shown for the purposes of unemployment insurance benefits if the claimant was actually available for at least half of that day. This same rule applies to the day of release.

As for inmates who are permitted to be away from the institution for part of the day, their entitlement to benefits will be determined on the basis of their availability for work. If permission to be away does not extend to the normal hours of work in the area, an involuntary restriction will be deemed to exist. The guidelines already covered will then be used to grant the claimant a reasonable period of time to explore job opportunities within this limitation³.

The contention that permission could have been obtained if a job opportunity had arisen will not help an inmate⁴, even if applications for work have been made by correspondence. Permission to be away from the institution must have been actually granted for the purpose of seeking employment⁵. Failure to prove availability is definite if permission is in fact refused when a job opportunity arises.

EIA 37; EIR 54; Jurisprudence Index/availability for work/incompatible situations/imprisonment/;
EIA 37;
see 10.4.0,"Practical Application";
A. Tanner (A-869-81, CUB 6940A);
EIR 54.

10.11.8.0 Out of Canada

Absence from Canada automatically disentitles a claimant from benefits¹ unless the absence and length of that absence is otherwise prescribed by Regulation² as follows:

to undergo medical treatment not readily available in the claimant's area of residence
to attend a funeral of a member of the immediate family or of a close relative for up to seven days
to accompany, for up to seven days, a member of the immediate family who is ill to a medical facility, provided the treatment is not readily available in the family member's area of residence
to visit a seriously ill or injured immediate family member for up to seven days
to attend a bona fide job interview for up to seven days
to conduct a bona fide job search for up to fourteen days
to attend approved training.

In most cases, a claimant cannot combine any of the exceptions to receive benefits for two or more periods of 7 or 14 days consecutively. However, in cases where a claimant is out of the country to visit a relative who is seriously ill or injured, and during their absence from Canada, that family member passes away, the claimant may benefit from the exceptions under EIR 55(1)(b) and 55(1)(d), and potentially be entitled to benefits for 14 days while out of the country³.

[ December 2011 ]

10.11.8.1 Calculation of the 7 or 14 days period

When determining the period outside Canada, the day the claimant leaves Canadian borders is not considered regardless of the time of departure. However, the day the claimant returns to Canada is considered, regardless of the time of arrival.

Beyond the prescribed time frame¹ a disentitlement is applicable from the eighth (8th) or fifteenth (15th) day as appropriate. Reasons for being outside Canada cannot be combined to extend the duration of the acceptable absence².

EIR 55(1); Jurisprudence Index/availability for work/Absences from Home/Out of Canada

10.11.8.2 Regular Benefits and the Availability provision

The above mentioned regulatory exceptions¹ apply only when the claimant, claiming regular benefits, is able to prove availability during the absence similar to that required of a claimant away from home for a short duration within Canada². Failing that, the claimant becomes subject to a disentitlement for both non-availability and outside Canada. The same principle applies to the claimant who takes a leave of absence from employment to go outside Canada.

[ April 2005 ]

10.11.8;
see10.11.1, “Visiting Family or Friends” to 10.11.6, “Hospitalisation”.

10.11.8.3 Special Benefits

A claimant outside Canada while receiving maternity, parental or compassionate care benefits is not disentitled for the sole reason that the claimant is outside Canada¹.

Reasons of a compassionate nature provide grounds upon which a claimant could be outside Canada and still be entitled to benefits. Therefore, the Commission, where possible, should inform the claimant of the possibility of entitlement to Compassionate Care benefits. As an example, a claimant can be entitled to Compassionate Care benefits followed by a maximum of seven days of regular benefits should the family member² pass away while the claimant is still out of the country.

While the periods of and reasons for absence within EIR 55(1) cannot be combined, they can nevertheless be applied separately and independently from those of EIR 55(4) which deals, among others, with Compassionate Care Benefits.

[ April 2005 ]

10.11.8.4 Job Search

A job interview or job search is bona fide¹ when the claimant can demonstrate a reasonable expectation of obtaining authorization to work in the host country.

EIR 55(1)(f).

10.11.8.5 Training and Self-Employment Employment Benefit

A claimant attending a course or program of instruction outside of Canada, to which he or she was referred by a designated authority, in not disentitled for the sole reason that he is 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 effect¹. By policy, referrals outside of Canada will be limited 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. Should a referral be made which is an exception to this policy, it (the referral) 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 (SEA) employment benefit² or under a similar benefit provided by a provincial government or other organization³, is not disentitled from receiving unemployment benefits for the sole reason of being outside Canada. These claimants are also 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.

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