Appeal Allowed: Employment Insurance Availability for Work Decision

Citation: Canada [NAME] Commission  v  DB , 2026  SST  332 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Representative: [NAME] Respondent: [redacted] Decision under appeal: General Division February 16, 2026 (GE-26-90) Tribunal member: [NAME] of hearing: Videoconference Hearing date: May 28, 2026 Hearing participants: Appellant’s representative Respondent Decision date: June 16, 2026 File number: AD-26-158 On this page Decision Overview Preliminary matters Issues Analysis Conclusion Decision [ 1 ] The Canada [NAME] Commission’s appeal is allowed. The General Division made jurisdictional errors. [ 2 ] I will give the decision the General Division should have given. [NAME]. is disentitled from receiving [NAME] regular benefits. She hasn’t shown that she was capable of and available for work and unable to obtain suitable employment from September 8, 2025, and onwards. Footnote 1 Overview [ 3 ] [NAME]. is the Claimant. She first applied for [NAME] sickness benefits and got 26 weeks of sickness benefits until September 6, 2025. Following that, she reported to the Commission that she had been approved to return to work gradually as of August 28, 2025. Footnote 2 So, her claim was converted to regular benefits. [ 4 ] The Commission decided that the Claimant hadn’t proven she was capable of and available for work and unable to find suitable employment, so they refused to pay her regular benefits from September 8, 2025. Footnote 3 The Claimant appealed that decision to the General Division. [ 5 ] The General Division allowed the appeal in part. It found that the Claimant had shown that she was available for work from August 28, 2025, to October 30, 2025. However, it also concluded that she hadn’t shown that she was available for work from October 31, 2025, to February 2, 2026. Footnote 4 [ 6 ] The Commission appealed to the Appeal Division, arguing that the General Division made several errors. Footnote 5 I have found that the General Division made jurisdictional errors. To fix the errors, I am substituting with my own decision. Preliminary matters [ 7 ] This case was scheduled to be heard on May 20, 2026. Footnote 6 The Commission’s representative and Claimant attended the hearing. However, after the Commission presented their arguments, the Claimant explained that she didn’t fully understand the legal arguments presented by the Commission because English was her second language. [ 8 ] Because of that, I decided to reschedule the hearing to another date and arrange for an interpreter to attend. The hearing was rescheduled to May 28, 2026, and both parties attended. Footnote 7 The entire proceedings were interpreted for the Claimant so that she could respond to the Commission’s arguments and fully and fairly participate in the proceedings. Issues [ 9 ] I have focused on the following issues: a) Did the General Division make a jurisdictional error when it assessed the Claimant’s availability for work from August 28, 2025, to September 6, 2025? b) Did the General Division make a jurisdictional error by failing to decide the Claimant’s availability from February 2, 2026, to February 13, 2026? Analysis [ 10 ] The Appeal Division can intervene if the General Division didn’t follow a fair process, made a jurisdictional error, a legal error, or an important factual error. Footnote 8 [ 11 ] The Commission argues that the General Division made several errors. Footnote 9 If the General Division made any reviewable errors, then I can intervene. Footnote 10 The Commission argues that the General Division made jurisdictional errors [ 12 ] The Commission argues that the General Division made two jurisdictional errors. [ 13 ] First, it says that the General Division made a mistake by considering the period before September 8, 2025. It says that period of time wasn’t before the General Division. [ 14 ] Second, it says that the General Division made a mistake by failing to consider the period from February 2, 2026, to February 13, 2026. Footnote 11 [ 15 ] The Claimant didn’t have any specific arguments about these particular errors, but she said that the General Division made a mistake when it found she wasn’t available for work from October 30, 2025. The General Division made two jurisdictional errors [ 16 ] A jurisdictional error happens when the General Division doesn’t decide an issue it had to decide or decided an issue that it didn’t have the authority to decide. [ 17 ] The General Division’s jurisdiction to decide an issue comes from a reconsideration decision that is appealed to the Tribunal. Footnote 12 [ 18 ] The Commission in this case decided that the Claimant hadn’t shown she was capable of and available for work and unable to obtain suitable employment. They imposed an indefinite disentitlement to regular benefits from September 8, 2025. [ 19 ] The Commission’s reconsideration decision was issued on December 8, 2025. And that’s the decision the Claimant appealed to the General Division. Footnote 13 [ 20 ] The General Division had to decide whether the Claimant had proven she was capable of and available for work and unable to obtain suitable employment. This is set out in section 18(1)(a) of the EI Act. [ 21 ] The General Division allowed the Claimant’s appeal in part. It decided that the Claimant had shown she was available for work from August 28, 2025, to October 30, 2025. It also found that she hadn’t shown she was capable of and available for work and unable to find a suitable job from October 31, 2025, to February 2, 2026. Footnote 14 [ 22 ] I find the General Division exceeded its jurisdiction because it decided something it wasn’t supposed to decide. It made a mistake when it considered the period prior to September 8, 2025. Footnote 15 The Commission’s reconsideration decision shows that it imposed an indefinite disentitlement to benefits from September 8, 2025. So, the General Division didn’t have the jurisdiction to decide her availability for work for the preceding period (i.e., it had no authority to consider the period from August 28, 2025, to September 7, 2025). [ 23 ] I also find that the General Division failed to exercise its jurisdiction because it didn’t decide something that it was supposed to decide. The General Division didn’t address the Claimant’s availability for work from February 2, 2026, to February 13, 2026 (the date of its decision). Footnote 16 The Commission and Claimant made arguments about other errors [ 24 ] I acknowledge that the parties have made arguments about other types of errors, but I don’t need to address all of them. I’ve already found two jurisdictional errors so I can intervene on that basis. Fixing the errors [ 25 ] I can refer the matter to the Board of Appeal for reconsideration, and I also have the power to make the decision that the General Division should have made. Footnote 17 [ 26 ] The Commission says that the Appeal Division should allow its appeal and give the decision the General Division should have given. [ 27 ] The Commission maintains that the Claimant should be disentitled to benefits from September 8, 2025, and onwards because she was not capable of and available for work and unable to obtain suitable employment. Footnote 18 [ 28 ] The Claimant says that either option is fine. She just wants to be able to get regular benefits from August 28, 2025, to February 2, 2026. I will substitute and give the decision the General Division should have given [ 29 ] I will substitute with my own decision and give the decision the General Division should have given. The record is complete and the parties got a full and fair opportunity before the General Division. [ 30 ] The law says that a person who wants regular benefits has to show that they’re capable of and available for work but aren’t able to find a suitable job. Footnote 19 [ 31 ] There are three factors that guide the Tribunal’s assessment of a person’s availability for work (often called the “ [NAME]  factors”) and they include the following: Footnote 20 a) The desire to return to the labour market as soon as a suitable job is offered; b) The expression of that desire through efforts to find a suitable job, and c) not setting personal conditions that might unduly limit the chances of returning to the labour market. [ 32 ] Suitable employment is employment permitted by a person’s health and physical capabilities. Footnote 21 For example, if a person has a health restriction that prevents them from performing certain work, that work would not be suitable. [ 33 ] The Commission imposed an indefinite disentitlement to benefits from September 8, 2025, and onwards. Footnote 22 So, that’s the period I will be deciding. [ 34 ] The Claimant has met the first [NAME] factor. [ 35 ] She testified before the General Division that she wanted to go back to work once her doctor said she was medically fit to do so in August 2025. Footnote 23 I find that the Claimant has shown she had a desire to return to the labour market as soon as a suitable job was offered. [ 36 ] The Claimant hasn’t met the second [NAME] factor. [ 37 ] I’ve considered some of the job-search activities listed in section 9.001 of the [NAME] as guidance only. [ 38 ] The Claimant testified before the General Division that she didn’t look for work; she didn’t update her resume; she didn’t sign up on any online job banks or employment agencies; she didn’t attend any job search workshops; she didn’t contact possible employers about employment opportunities; she didn’t submit any job applications; she didn’t have any job interviews. Footnote 24 [ 39 ] I acknowledge that the Claimant did a few things to try to find a job, but I find that her efforts were minimal. She tried returning to her old job as a hotel attendant, but the employer couldn’t accommodate her request for modified duties because of the physical nature of her job. She also went to a farmers’ market once and verbally inquired about a job opportunity with one of the businesses. As well, her daughter was thinking about setting up a [NAME] and suggested she could work at [NAME]. Her daughter didn’t end up starting a [NAME], so that didn’t work out. [ 40 ] I find that the Claimant didn’t express her desire through efforts to find a suitable job from September 8, 2025, and onwards. She knew as of September 8, 2026, and September 26, 2026, that the employer could not accommodate her. Footnote 25 This should have triggered her to start looking for suitable jobs that she could do. For example, jobs with less physical demands were suitable based on her health and physical capabilities. The Claimant is only required to be available for jobs that are suitable. And the few efforts she made over several months were minimal and not enough to satisfy this factor. [ 41 ] I agree with the Commission that availability is an ongoing requirement and having a potential job in the future doesn’t change the requirement of making efforts to find suitable employment. Availability is assessed by working day in a benefit period in which the Claimant can prove that she was capable of and available for work on that day and unable to obtain suitable employment. Footnote 26 [ 42 ] The Claimant has met the third [NAME] factor. [ 43 ] I am adopting the General Division’s findings on this factor because I agree with its reasoning set out at paragraphs 48–54 of its decision. [ 44 ] There are several medical notes on file and I’ve reviewed them carefully. Footnote 27 The Claimant was only able to work four hours per day, five days per week (i.e., 20 hours per week). Her doctor wrote that she could only do limited pulling, limited pushing, bending, twisting, kneeling, squatting, overhead reaching and lifting was limited to under 5 kilograms. [ 45 ] I find that the Claimant hasn’t set any personal conditions that might unduly limit her chances of returning to the labour market. The Claimant had health and physical limitations at the time, but these are not personal conditions that she imposed that unduly limited her chances of returning to the labour market. She only has to be available for jobs that are within her health and physical capabilities. [ 46 ] To summarize, the Claimant has met the first and third [NAME] factors, but she hasn’t met the second [NAME] factor. This means that she has not proven she was capable of and available for work and unable to find suitable employment. Because of that, she can’t get regular benefits. Footnote 28 Conclusion [ 47 ] The Commission’s appeal is allowed. The General Division made two jurisdictional errors. I have made the decision the General Division should have made. [ 48 ] The Claimant has not proven that she was capable of and available for work and unable to get suitable employment from September 8, 2025, and onwards. Footnotes Footnote 1 This is a disentitlement based on section 18(1)(a) of the [NAME] Act ( EI Act). Return to footnote 1 referrer Footnote 2 See page GD3-14. Return to footnote 2 referrer Footnote 3 See Commission’s initial and reconsideration decision at pages GD3-17 and GD3-26. Return to footnote 3 referrer Footnote 4 See General Division decision at pages AD1-12 to AD1-25. Return to footnote 4 referrer Footnote 5 See Application to the Appeal Division at pages AD1-1 to AD1-25. Return to footnote 5 referrer Footnote 6 See pages AD0-1 to AD0-3. Return to footnote 6 referrer Footnote 7 See pages AD0A-1 to AD0A-3. Return to footnote 7 referrer Footnote 8 See section 58(1) of the Department of Employment and Social Development Act ( DESD Act). Return to footnote 8 referrer Footnote 9 See Commission’s arguments at pages AD1-2; AD1-7 to AD1-11 and AD5-1 to AD5-12. Return to footnote 9 referrer Footnote 10 See section 59(1) of the DESD Act. Return to footnote 10 referrer Footnote 11 February 13, 2026, was the date the General Division issued its decision. Return to footnote 11 referrer Footnote 12 See sections 112 and 113 of the EI Act. Return to footnote 12 referrer Footnote 13 See pages GD3-17 and GD3-26. Also see, Claimant’s appeal to the General Division at pages GD2-1 to GD2-14. Return to footnote 13 referrer Footnote 14 See paragraphs 2, 55–56 of the General Division decision. Return to footnote 14 referrer Footnote 15 See section 58(1)(a) of the DESD Act. Return to footnote 15 referrer Footnote 16 See section 58(1)(a) of the DESD Act. Return to footnote 16 referrer Footnote 17 See sections 59(1), 54.5(1) and 64 of the  DESDA . Return to footnote 17 referrer Footnote 18 See page AD5-12 and section 18(1)(a) of the EI Act. Return to footnote 18 referrer Footnote 19 See section 18(1)(a) of the EI Act. Return to footnote 19 referrer Footnote 20 [NAME]   v   [NAME] and Immigration Commission , A-56-96 and A-57-96. Return to footnote 20 referrer Footnote 21 See section 9.002 of the  [NAME] . Return to footnote 21 referrer Footnote 22 At the Appeal Division hearing, the Commission’s representative said that the Claimant’s benefit period ended in late February 2026 (resulting in the disentitlement lasting until the end of her benefit period). Return to footnote 22 referrer Footnote 23 See paragraph 35 of the General Division decision. Return to footnote 23 referrer Footnote 24 See paragraph 46 of the General Division decision. Return to footnote 24 referrer Footnote 25 See pages GD3-14 and GD3-15. Return to footnote 25 referrer Footnote 26 See Canada (Attorney General)  v  [NAME] , 2005  FCA  73 at paragraph 7. Return to footnote 26 referrer Footnote 27 See pages GD3-13, GD3-18, GD3-21 and GD3-22. Return to footnote 27 referrer Footnote 28 This is an indefinite disentitlement based on section 18(1)(a) of the EI Act. Return to footnote 28 referrer