Docket: A-340-16
Citation:
2017 FCA 82
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CORAM:
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DAWSON J.A.
WEBB J.A.
RENNIE J.A.
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BETWEEN:
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ATTORNEY
GENERAL OF CANADA
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Applicant
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and
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LAURA LAVITA
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Respondent
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REASONS
FOR JUDGMENT
DAWSON J.A.
[1]
A single issue is raised on this application for
judicial review: was it unreasonable for the Appeal Division of the Social
Security Tribunal of Canada to conclude, as a matter of fact, that the
respondent was available for work within the meaning of paragraph 18(1)(a)
of the Employment Insurance Act, S.C. 1996, c. 23 (the Act).
[2]
This issue arises in the following context:
i.
The respondent was employed by the
Toronto-Dominion Bank until October 24, 2013, when she took a personal, unpaid
leave of absence in order to provide primary care and support to her elderly
parents.
ii.
The written agreement between the
Toronto-Dominion Bank and the respondent which governed the conditions of the
respondent’s leave of absence provided that during her period of leave she
would continue to accumulate service with the Bank and would continue to
receive company benefits. The agreement further provided that the intended
purpose of the Bank’s leave policy was to provide employees with time away from
the workplace in order to address a variety of personal needs. Accordingly, “earning income from other sources over the period of the
Leave is not permitted.”
iii.
Once the respondent made suitable arrangements
for the care of her parents, she began applying for jobs within the Bank.
However, the respondent was not successful in securing a position. Before the
Appeal Division, the Commission did not contest the respondent’s position that
she made every effort to return to work in a position at the Bank.
iv.
The respondent’s leave of absence ended when her
employment was terminated.
v.
Thereafter, the respondent applied for
employment insurance benefits. Her claim was antedated so that her benefit
period was established effective to October 27, 2013.
vi.
The Employment Insurance Commission rejected the
application for benefits on the basis that the respondent had not proven that
she was available for work during her benefit period as required by paragraph
18(1)(a) of the Act.
vii.
The General Division of the Social Security
Tribunal concluded that the respondent was entitled to benefits.
viii.
This decision was confirmed on appeal by the
Appeal Division.
[3]
A claimant who establishes just cause to leave
their employment and who complies with all of the requirements found in the Act
is qualified to receive employment insurance benefits. However, a claimant
remains under the obligation imposed by paragraph 18(1)(a) of the Act to
be “capable of and available for work”.
[4]
On this application for judicial review the Attorney
General argues that by limiting her job search to one employer, the Bank, the
respondent imposed a personal condition on her job search that unduly limited
her chances of returning to the labour market.
[5]
I begin my analysis with the observation that the
question of a claimant’s availability for work is in every case a question of
fact.
[6]
The Act does not define “availability”. Thus, in
Canada (Attorney General) v. Whiffen (1994), 165 N.R. 145, 113 D.L.R.
(4th) 600, this Court wrote that 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.” Thus, a claimant who imposes unreasonable restrictions
regarding the type of work he or she seeks is not available for work.
[7]
Subsequently, in Faucher v. Canada
(Employment and Immigration Commission) (1997), 215 N.R. 314, 147 D.L.R.
(4th) 574 this Court wrote that “availability must be
determined by analyzing three factors – the 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 setting personal conditions
that might unduly limit the chances of returning to the labour market”.
[8]
In the present case, the Appeal Division accepted
that:
i.
The respondent applied for “any and all jobs within the organization in addition to
seeking out other possible positions through her extensive network of
co-workers”.
ii.
The respondent pursued more than 10 possible
positions with the Bank in a one-year period.
iii.
The respondent did everything she could to look
for work within the Bank. Once her employment with the Bank was terminated she
expanded her job search to other potential employers.
[9]
Based on these factual findings the Appeal
Division concluded that by limiting her job search to positions within the Bank,
a large corporate employer, the respondent did not unduly limit her chance of
returning to the labour market so as to be unavailable. While it may well have
been open to the Appeal Division to reach another conclusion, I have not been
persuaded that on the facts before it the Appeal Division reached an
unreasonable conclusion. The question of availability is a question of fact and
the findings made in this case are entitled to significant deference.
[10]
It follows that I would dismiss the application
for judicial review.
“Eleanor R. Dawson”
“I agree
Wyman W. Webb
J.A.”
“I agree
Donald J.
Rennie J.A.”
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