Appeal Dismissed: Claimant Lacked Just Cause to Leave Employment

OUTCOME: Dismissed

Citation: [NAME]  v  Canada Employment Insurance Commission , 2026  SST  324 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Representative: [COUNSEL] Respondent: [redacted] Representative: [COUNSEL] under appeal: [NAME] decision dated December 4, 2025 (GE-25-2912) Tribunal member: [NAME] of hearing: Videoconference Hearing date: April 21, 2026 Hearing participants: Appellant Appellant’s representative Respondent’s representative Decision date: April 30, 2026 File number: AD-25-821 On this page Decision Overview Preliminary matters Issues Analysis Remedy Conclusion Decision [ 1 ] The appeal is dismissed. The [NAME] did not make an error in finding that the Claimant voluntarily left his job without just cause. [ 2 ] The [NAME] did make errors of law in how it assessed the Claimant’s availability, so I have substituted my decision on this issue. I find that the Claimant was available for a reasonable interval to look for employment that does not conflict with his [COMPANY] schedule. However, my decision on availability does not assist the Claimant. He remains disqualified from receiving benefits because he did not have just cause for leaving his employment. Overview [ 3 ] A. F. is the Appellant. I will call him the Claimant because this application is about his claim for Employment Insurance ( EI benefits). The Respondent is the Canada Employment Insurance Commission, which I will call the Commission. [ 4 ] The [APPELLANT] worked the evening shift only at his job, and he went to [COMPANY] during the day. When his employer sold the business, the new owner would not commit to allowing the [APPELLANT] to continue in the evening shift. This meant the [APPELLANT] could not be certain his job would not interfere with his [COMPANY]. [ 5 ] The [APPELLANT] left his job and applied for EI benefits, but the Commission would not pay him because it found that he did not have just cause for leaving. This meant that the [APPELLANT] was disqualified from receiving benefits. The Commission said that he was also disentitled from receiving benefits because he was not available for work. Footnote 1 It would not change its decision on either issue when the [APPELLANT] asked it to reconsider. Footnote 2 [ 6 ] The [APPELLANT] appealed to the [NAME] of the Social Security Tribunal, but the [NAME] dismissed his appeal. It said that he did not have just cause because he had a reasonable alternative to leaving. It also said that the [APPELLANT] was not available for work because he was a full-time student and because he unduly limited his chances of returning to work. The [APPELLANT] disagreed and appealed the [NAME] decision to the Appeal Division. [ 7 ] I am dismissing the Claimant’s appeal. The [NAME] did not make any error in how it found that the [APPELLANT] voluntarily left his job without just cause. This means that the [APPELLANT] remains disqualified from receiving benefits. [ 8 ] The [NAME] did make errors in how it decided the [APPELLANT] was not available, so I have substituted my decision to correct those errors. I have found that he was available for a reasonable interval of two months. But this does not affect the [APPELLANT] disqualification, so he cannot receive benefits even during that interval of availability. Preliminary matters [ 9 ] The Claimant asked me to consider evidence that he found employment just before the Appeal Division hearing. He believes this helps to prove that he was available for work. [ 10 ] The Appeal Division does not generally consider new evidence. Footnote 3 Its role is to decide whether the [NAME] made errors in how it considered the evidence that was before it. So, it hears arguments only—and not evidence. There are some limited exceptions, by which the Appeal Division may consider new evidence. But the Claimant’s reasons for asking me to consider the new evidence do not fall within any exception. Footnote 4 Issues [ 11 ] The issues in this appeal are: Just cause a) Did the [NAME] make an error of law by failing to consider that the Claimant’s work duties had significantly changed? a) Did the [NAME] make an error of law by failing to give the benefit of the doubt to the Claimant? b) Did the [NAME] make an error of fact when it found that the Claimant quit before he learned whether the employer would permit him to keep the evening shift? c) Did the [NAME] make an error of fact by failing to consider that the Claimant started [COMPANY] and paid [COMPANY] fees before he left his employment? Availabiilty for work d) Did the [NAME] make an error of law by evaluating how the Claimant looked for work rather than whether he looked for work? e) Did the [NAME] make an error of law when it found that the Claimant did not rebut the presumption of non-availability without considering his particular circumstances? f) Did the [NAME] make an error of law by failing to evaluate the Claimant’s availability for “suitable employment”? Analysis [NAME] legal principles for appeals to the Appeal Division [ 12 ] The Appeal Division may only consider errors that fall within one of the following grounds of appeal: a) The [NAME] hearing process was not fair in some way. b) The [NAME] did not decide an issue that it should have decided. Or, it decided something it did not have the power to decide (error of jurisdiction). c) The [NAME] made an error of law when making its decision. d) The [NAME] based its decision on an important error of fact. Footnote 5 Did the Claimant have just cause for leaving his employment? The [NAME] considered whether the Claimant had a significant change in work duties [ 13 ] The [APPELLANT] argued that the [NAME] made an error of law. He asserts that he experienced a significant change in his work duties and says that the [NAME] did not consider it. He notes that “significant change in work duties” is one of the listed circumstances in section 29(c) of the Employment Insurance Act ( [NAME]). [ 14 ] The [APPELLANT] says that this “significant change” was the change to his regular hours of work. He had worked from 3:30 p.m. to midnight (the “evening shift”) for a long time. He states that he arranged his [COMPANY] schedule around the evening shift. He left because his employer wanted him to work a different shift and would not confirm that it would allow him to continue in the evening shift. [ 15 ] The [NAME] did not fail to consider whether the Claimant had a significant change in work duties. [ 16 ] Its decision reveals that it both considered and analyzed this circumstance. The [NAME] understood that the change in work duties was part of the Claimant’s argument. Footnote 6 It specifically considered the facts supporting a “significant changes in work duties,” and it even found as fact that this circumstance applied in the [APPELLANT] case. Footnote 7 [ 17 ] The [APPELLANT] also argued that the [NAME] was compelled to find that he had just cause because the “significant change in work duties” circumstance is listed in the [NAME]. He appears to believe that the [NAME] could not have considered, or given proper consideration to, this circumstance on the basis that it did not conclude that the Claimant did not have just cause for leaving. [ 18 ] If this is what he believes, he is mistaken about how the law applies. Section 29(c) defines when a claimant will have good cause. The legal test for good cause is whether a claimant has no reasonable alternative to leaving, “having regard” to all the circumstances. “All of the circumstances,” are said to include the circumstances listed in section 29(c) of the [NAME], although the list is not exclusive. [ 19 ] If any of those circumstances is suggested by the facts, it would have to be considered when assessing the reasonableness of a claimant’s alternatives to leaving. However, the existence of one or more of the circumstances listed in section 29(c) would not, in itself, require the [NAME] to find that a claimant has no reasonable alternatives to leaving. The listed circumstances are presumptively relevant : They are not determinative. The [NAME] did not make an error of law by not giving the Claimant the benefit of the doubt [ 20 ] The [APPELLANT] asserted that the [NAME] should have given him the benefit of the doubt when it assessed whether he experienced a “significant change of work duties.” [ 21 ] As noted earlier in this decision, the [NAME] found as fact that the Claimant had experienced a significant change in his work duties. So, I must suppose that the Claimant means to argue that the [NAME] did not think the change was significant “enough” to show that he had no reasonable alternative to leaving. [ 22 ] The [NAME] did not make an error of law. It was not required to give the Claimant the benefit of the doubt when it evaluated “significance.” [ 23 ] The only reference in the [NAME] to “benefit of the doubt” is section 49(2), which applies to Commission decisions only. Footnote 8 The [NAME] does not use “benefit of the doubt” to evaluate the evidence against the requirements of a legal test. It may give the Claimant the benefit of the doubt when it has to resolve a conflict between the [APPELLANT] evidence and the Commission’s evidence on some particular fact—assuming that the evidence is otherwise evenly weighted. But there was no need to resolve a conflict of evidence in this case. [ 24 ] The standard of proof at the [NAME] is “balance of probabilities.” It is settled law that the [APPELLANT], and not the Commission, has the burden of proof to show that he had just cause. Footnote 9 That means it is up to the [APPELLANT] to prove that it is more likely than not that he had no reasonable alternative to leaving in his circumstances. The [NAME] did not make an error of fact when it found that the Claimant quit before his employer insisted that he work the day shift [ 25 ] I granted leave to appeal partly because some of the [APPELLANT] testimony appeared to suggest that his employer had already scheduled him to work the morning shift before he quit. I referred to a part of his oral testimony where the member asked him why he decided to leave when he did. The Claimant responded, “[T]hey put me in new premises in morning shift.” Footnote 10 The member later asked the Claimant to confirm that the employer was scheduling him for the morning and that he was saying to the employer that he could not attend because of his classes. And he responded “yes.” Footnote 11 [ 26 ] However, I now find that the [NAME] did not make an error of fact by overlooking or misunderstanding his testimony. [ 27 ] I have revisited the audio recording of the [NAME] hearing and compared it to the other evidence in the appeal record. I do not accept that the [APPELLANT] testimony confirms that he had already been placed on the morning shift schedule. Instead, I interpret his testimony as implying that the employer planned to schedule him for morning shifts. [ 28 ] This interpretation is consistent with other statements the Claimant made to the Commission, with his submission made in support of his reconsideration, his statements to the Commission, and with other parts of his testimony. [ 29 ] For example, the Claimant’s submissions to the Commission confirm that the employer’s original plan was to have him work the morning shift at the new premises beginning on March 31, 2025. But they also suggest he never worked at the new premises. The [APPELLANT] told the Commission that he, “was asked instead to continue working at [his original] Oakville location—in the evening shift beyond that date.” Footnote 12 The [APPELLANT] testimony that the employer “put him in new premises in [the] morning shift” makes sense if the employee was planning to put him in new premises in the morning shift, but had not yet put that plan into effect. It does not make sense otherwise, since the confirmed that he did not work at the new premises before he quit. [ 30 ] At the [NAME] hearing, the Claimant (through his representative) referred to his reconsideration submissions, stating that he had no choice but to leave and that he was “left in limbo.” Footnote 13 In those submissions, the [APPELLANT] had told the Commission that he was “never informed whether [his] evening shift request… had been approved or denied…. It was only after waiting for a resolution and receiving none that [he] informed the company on April 7, 2025, that [he] could not continue under these uncertain conditions.” Footnote 14 [ 31 ] When he discussed his reconsideration with the Commission, he said that he was offered a morning shift by the new owners of the company ([NAME]) and that he told its HR department that he needed to work evenings because of his [COMPANY]. He said that [NAME] permitted him to continue to work the evening shift, with “no end date given.” Footnote 15 [ 32 ] When the Claimant accepted the new owner’s offer of employment on March 14, 2025, he added a note stating as follows: “Currently I am doing diploma, so I go in the morning to attend my class. Therefore, you are requested to adjust me in the evening shift and oblige.” Footnote 16 In his reconsideration submission, he told the Commission that he did not hear back on whether his request to work evening shifts had been approved or denied. He said he was “still waiting for a decision at the time that he quit.” Footnote 17 [ 33 ] In his written representations, the Claimant’s representative said that the new employer’s removal of the evening shift prompted the [COUNSEL] to resign. However, in oral submissions, the representative repeated that the evidence before the [NAME] was that the Claimant had asked the employer to put him on the evening shift but that he never heard back. Footnote 18 [ 34 ] Given the other evidence before the [NAME], I find that it did not ignore the [APPELLANT] testimony. I recognize that some of the [APPELLANT] testimony was open to interpretation because English was not his first language. However, the [APPELLANT] was assisted by an English-speaking paralegal representative at his [NAME] hearing and he chose to proceed without an interpreter. [ 35 ] The [NAME] is ordinarily presumed to have considered all the evidence before it. Footnote 19 There was some ambiguity in the Claimant’s testimony about whether he quit because he had actually been scheduled to work mornings, or instead quit because the employer had not guaranteed that he would not be required to work mornings. I am presuming that the [NAME] considered the [APPELLANT] testimony, but that it interpreted this ambiguity in a manner that was consistent with other evidence in the record, and with most of his representative’s submissions. The [NAME] did not make an error of fact by failing to consider that the Claimant started [COMPANY] and paid [COMPANY] fees before he left his employment [ 36 ] The Claimant believes that he had no choice but to quit because he could only go to [COMPANY] and continue working if he could keep the evening shift. He chose to leave his job because he had already started [COMPANY] and paid his [COMPANY] fees. He argues that the [NAME] failed to consider evidence of these facts. [ 37 ] The [NAME] did not make an error of fact because. It did consider that the Claimant had started [COMPANY] and paid [COMPANY] fees before he quit. [ 38 ] The [NAME] understood that the [APPELLANT] had started going to [COMPANY] while still working the night shift. Footnote 20 It noted his statements that he invested time and money into his schooling. It recognized that he believed he had no alternative to leaving because the employer would not let him continue working the “night” shift. It also understood that the [APPELLANT] believed his employment would prevent him from continue his job and schooling. Footnote 21 [ 39 ] There was specific evidence which confirmed that the [APPELLANT] was enrolled in a program that started in February 2025, and that he had paid (or was obligated to pay) fees associated with the program. Footnote 22 The [NAME] did not refer to this specific evidence. [ 40 ] However, there is nothing in the decision to suggest that the [NAME] did not accept that the Claimant was already attending [COMPANY] before he quit his job, or that he was responsible for paying [COMPANY] fees. While it did not refer to the specific fee or enrollment evidence, this evidence did not matter to the decision. [ 41 ] The [NAME] based its decision on what the law says. The Federal Court of Appeal has consistently held that it is not “just cause” to quit work to attend [COMPANY]. Footnote 23 It has acknowledged that returning to [COMPANY] may be a good reason, but that it is not just cause. The court’s view is that it is contrary to the principles of employment insurance for claimants to impose the economic cost of their decision to go to [COMPANY] on the contributors to the fund. Footnote 24 [ 42 ] According to the Federal Court of Appeal, this remains true even though a claimant may have already started their [COMPANY] program, or may have already invested significant funds towards their [COMPANY]. Footnote 25 Was the Claimant available for work? The [NAME] did not make an error by improperly evaluating the Claimant’s job search [ 43 ] The Claimant argues that the [NAME] was focused on how he looked for work, and that it should have focused on whether he looked for work. He said that the [NAME] assumed he cannot be looking for work if he is going to [COMPANY] during the day. [ 44 ] The [NAME] did not make an error of law or fact in how it evaluated the Claimant’s job search efforts. [ 45 ] There is actually a legal presumption that a claimant who is going to [COMPANY] full time is not available for work. Footnote 26 This presumption has to do with a claimant’s ability to work and go to [COMPANY] at the same time. It is unrelated to whether a claimant can look for work and go to [COMPANY] at the same time. Contrary to the [APPELLANT] argument, the [NAME] did not consider either the nature or the sufficiency of the Claimant’s job search when it found that the Claimant had not rebutted the presumption of non-availability. [ 46 ] The [NAME] said that the Claimant failed to rebut the presumption for two reasons. It said that he had worked while going to [COMPANY] for only a limited period and it said he was unwilling to abandon his studies for suitable employment. [ 47 ] Had the [NAME] accepted that the [APPELLANT] rebutted the presumption, this would have meant only that it was possible for the Claimant to be available for work while going to [COMPANY] full-time. He would still have had to prove his availability. However, the [NAME] found that he had not rebutted the presumption. This is effectively a finding that he could not have been available while going to [COMPANY] full-time. [ 48 ] Despite finding that the Claimant could not have been available (by finding he did not rebut the presumption), the [NAME] proceeded to review whether the Claimant met the test for availability, known as the “ Faucher test.” Footnote 27 It found that the Claimant met two of the three factors in the Faucher test. It found that he had the desire to return to work and that his job search efforts were sufficient. However, it also found that the Claimant did not satisfy the final Faucher factor. The Claimant was only looking for evening shifts that would allow him to continue with his schooling. The [NAME] found that this was a personal condition that unduly limited his chances of going back to work. [ 49 ] The [NAME] did not make any finding related to how or when the Claimant looked for work that was unfavourable to the Claimant. As the Commission points out, the [NAME] did not decide that the Claimant was not available because of how he conducted his job search. Its decision was based on the kind of work he was willing to accept. The [NAME] made an error of law by finding he did not rebut the presumption of non-availability without considering his particular circumstances [ 50 ] The Claimant worked for several years in the evening shift before quitting his job. While employed, he enrolled in a [COMPANY] program with classes from 8:00 a.m. to 12:00 p.m.. He said that he worked on his [COMPANY] assignments in the afternoons. The evening shifts to which he was accustomed were compatible with his [COMPANY] schedule. From the time the [APPELLANT] started his [COMPANY] on February 17, 2025, until his last day of work on April 18, 2025, he worked and went to [COMPANY] at the same time. [ 51 ] The Claimant quit his job because the employer could not guarantee him the evening shifts, or evening shifts only, that he needed to stay in [COMPANY]. So, he clearly understood that he would only be available for work is availability for work outside of his schedule. The question is whether the [APPELLANT] rebutted the presumption of non-availability through his availability for those shifts that would also permit him to continue his [COMPANY]. [ 52 ] The [NAME] acknowledged guidance from the Federal Court of Appeal in the [NAME] decision: It understood the need to use a contextual analysis to determine whether the presumption of non-availability applies. In reviewing the context, the [NAME] considered that the [APPELLANT] was not willing to quit his [COMPANY] to find work. And it considered that he had demonstrated his ability to work evenings and go to [COMPANY] for only a limited period of time. [ 53 ] However, the [NAME] did not fully consider the [APPELLANT] context. [ 54 ] It was correct to consider his unwillingness to quit and his work/[COMPANY] history: The Page decision also observed that a willingness to give up studies to accept employment or [NAME]’ history of regular employment while attending [COMPANY] are circumstances which have rebutted the presumption of non-availability in other Federal Court of Appeal decisions. And it was open to the [NAME] to view the [APPELLANT] history of working and going to [COMPANY] as “limited.” At the time the [APPELLANT] quit his job, he had only been going to [COMPANY] for about 8 weeks. [ 55 ] However, [NAME] also said that “other considerations may be relevant.” Footnote 28 [ 56 ] A claimant’s work and [COMPANY] history is considered relevant because such a history may support an inference to the present from what the claimant has done in the past. In the facts of this case, no inference is necessary. Eight weeks may not be a sufficient to establish a historical pattern from which it may be inferred that the Claimant has the ability to manage work and [COMPANY]. But the Claimant’s combined work and [COMPANY] experience was not historical. It was his current experience when he left his job. [ 57 ] It was only possible for the [APPELLANT] to enroll in his [COMPANY] program, attend classes, and complete his course work, because he was regularly employed at the evening shift. He demonstrated, currently, that he was able to manage the demands of his [COMPANY] program while working the evening shift. Although he quit his job after only eight weeks of work and [COMPANY], there was no evidence that this was because he could not manage both at the same time. [ 58 ] To the contrary, his July 2025 midterm review indicated that he had been successful in his [COMPANY] program to that point. Footnote 29 And the Claimant had said that the reason he left his job was that his employer would not guarantee that he could keep the evening shift (which allowed him to combine work and [COMPANY]). Furthermore, the [NAME] apparently appreciated that the [APPELLANT] continued his studies while he searched for other evening shift work. When it considered his availability for work under the Faucher test, it found that the [APPELLANT] wanted to get back to work as soon as suitable work was available, and it accepted that he made sufficient job search efforts. This also suggests that the Claimant did not quit his job because he could not manage his schedule of [COMPANY] and evening shift work. [ 59 ] The [NAME] made an error of law when it found that the [APPELLANT] had not rebutted the presumption of non-availability. It failed to analyze all of the [APPELLANT] circumstances. In particular, it did not consider that the [APPELLANT] work-[COMPANY] experience was not historical but current. The Claimant was demonstrating a current ability to successfully manage full-time studies while he worked at an evening shift job. The [NAME] failed to consider whether the Claimant was available for “suitable” employment [ 60 ] The Commission concedes that the [NAME] failed to consider whether the [APPELLANT] was available for “suitable employment.” It acknowledges that this is an error of law. [ 61 ] The [APPELLANT] had worked evening shift for several years. His [COMPANY] schedule did not conflict with his evening shift. He was only looking for work that did not conflict with his [COMPANY] schedule. [ 62 ] The [NAME] said that the [APPELLANT] set personal conditions that unduly limited his chances restricted his job search, because he was only willing to accept work that did not conflict with his [COMPANY]. However, the [NAME] did not define suitable employment, nor consider whether employment that was not “evening shift” employment was “suitable.” [ 63 ] I agree that the [NAME] made an error of law by not defining suitable employment or evaluating whether the Claimant was available for suitable employment. Summary of errors Just cause for leaving [ 64 ] The [NAME] made no error when it found that the Claimant did not have just cause for voluntarily leaving his employment. There is no basis for me to correct the [NAME]’s findings, or intervene in its decision. [ 65 ] I confirm that the Claimant did not have just cause for leaving and is thereby disqualified from receiving benefits. Availability for work [ 66 ] The [NAME] decision also considered the issue of availability. [ 67 ] It found that the Claimant was not entitled to benefits because he was not available for work. This means that the Claimant would not have been entitled to benefits, even if he had not been disqualified. [ 68 ] I have found errors in how the [NAME] decided that the Claimant was not available. This means I have to decide what I should do to fix those errors. Remedy [ 69 ] I have the power to send the matter to the [NAME] for reconsideration, and I also have the power to make the decision that the [NAME] should have made. If I make the decision the [NAME] should have made, I may decide any question of law or fact necessary to my decision. Footnote 30 [ 70 ] The [APPELLANT] believes that I should send the matter to the [NAME] so that it can consider additional evidence related to his availability. The Commission suggests that the record is complete and recommends that I make the decision the [NAME] could have made. [ 71 ] Although I have confirmed the [NAME] decision on the “just cause” issue, I will substitute my decision for that of the [NAME] on the availability issue. [ 72 ] The [APPELLANT] had a fair opportunity to present his evidence to the [NAME], and he has not identified any issue or factual finding that I cannot decide based on the evidence on record. He suggests that the [NAME] would be able to consider evidence that he found employment just prior to the Appeal Division hearing. But this evidence would not be relevant to whether he was available for work during his benefit period. And, even if it were relevant to his availability, he would still be disqualified from receiving benefits because he left his job without just cause. My decision The [APPELLANT] has rebutted the presumption of non-availability for full-time students [ 73 ] I agree with the [NAME] that the [APPELLANT] was a full-time student when he was going to [COMPANY]. That means that the presumption of non-availability applies. He cannot be found to be available unless he rebuts the presumption through exceptional circumstances. [ 74 ] To rebut the presumption, he does not need to show that he was available for work while he was in [COMPANY]. He only needs to show that his [COMPANY] did not prevent him from being available. [ 75 ] The Page decision does not say that a claimant, who is looking for work according to their previous schedule, would not be available unless they can establish a pattern of working while going to [COMPANY] over an extended period. It said this: Where there was a previous pattern of regular employment outside of [COMPANY] hours while attending full-time classes, it is not an error of law (or a reviewable factual determination within the meaning of paragraph 58(1)(c) of the DESDA ) to conclude that a claimant is available if they are available for employment in accordance with their previous work schedule. Footnote 31 [ 76 ] As it happens, the Claimant started [COMPANY] only eight weeks before he quit. Earlier Federal Court of Appeal decisions have implied that the history would have to be longer than the 8-week period in this case. Footnote 32 However, I am unaware of any precedent that establishes how much history is required to establish a pattern. [ 77 ] The Commission argues that it is speculative to suggest the Claimant, “would have been able to maintain his pattern of working 40 hours a week and training 35 hours a week.” I think what the Commission is saying is that the evidence does not establish that the [APPELLANT] would necessarily have continued with his work and [COMPANY] schedule, or that he could prove how long he would have continued. [ 78 ] But the same thing could be said of anything that is still in the future. The best that I can do is to extrapolate about the future from what is known of the past or the present, and draw inferences. In this case, I accept the following facts: The [APPELLANT] worked evening shifts for years. He enrolled in [COMPANY] because his evening work schedule permitted it. He successfully coordinated his evening shifts and [COMPANY] schedule for 8 weeks before he left his job. He left his job because he expected his work schedule to change in such a way that he would not be able to continue his [COMPANY]. He looked for work that was compatible with his [COMPANY] schedule. [ 79 ] The most reasonable inference from these facts is that the [APPELLANT] would have continued his studies and worked full-time if his employer had guaranteed his evening shifts (or if he had found work on the same or similar schedule to his work history). [ 80 ] When I consider the overall context, I find two other factors to be significant. These factors are related to his pattern of work and [COMPANY], but they are distinct. [ 81 ] First, I find it significant that the Claimant had a five-year pattern of working outside of regular [COMPANY] hours, even though he was not going to [COMPANY] also for most of that time. His work schedule was such that he could have attended a full-time [COMPANY] program at any time within those five years, or for the entire five years, without any necessary conflict with his regular work. [ 82 ] Second, I find it significant that the Claimant’s work and [COMPANY] experience is current. Much of the case law considers the presumption of non-availability where the history of working and going to [COMPANY] is more remote. A remote history can support only an inference to the present. A current history, on the other hand, is a demonstration of actual ability. In this case, the Claimant demonstrated his ability to attend his current [COMPANY] program full-time while working at his most recent employment. He did not quit his job after eight weeks of [COMPANY] because he could not manage work and [COMPANY]. He quit when he did because his employer had just sold the business. And the new employer would not guarantee the Claimant the evening shifts he required to continue his [COMPANY]. [ 83 ] I accept that the Claimant demonstrated a current intention and ability to manage a full-time [COMPANY] schedule in combination with employment that was consistent with his usual and persistent pattern of evening shift work. I accept that this represents an exceptional circumstance. [ 84 ] I find that the Claimant has rebutted the presumption of non-availability for full-time students. The Claimant was available for suitable work for a reasonable interval [ 85 ] The [NAME] accepted that the Claimant had a desire to return to work and that he demonstrated that desire through his job search efforts. The Commission did not suggest that either of those findings was in error, and I accept them also. [ 86 ] However, the [NAME] still decided that the [APPELLANT] was not available for work. It found that he had set personal conditions that unduly limited his chances of returning to work. [ 87 ] I have already found that the [APPELLANT] “could be” available for work according to his long-standing pattern of employment even though he also had a full-time [COMPANY] schedule. The [APPELLANT] said he was available for evening shifts from Monday to Friday and anytime on weekends. Footnote 33 He had worked on his [COMPANY] assignments in the afternoons when he was still working the evening shift, but he testified that he could make himself available for work in the afternoons also. Footnote 34 There was no evidence to say otherwise. [ 88 ] Even though the Claimant’s [COMPANY] schedule would have permitted him to work evenings and weekends, I still have to decide whether the [APPELLANT] unduly limited his chances of returning to work. [ 89 ] The [APPELLANT] was looking for work that did not conflict with his [COMPANY] schedule only, but he also said that he was willing to accept “any kind” of work. Footnote 35 Yet he was still unemployed at the time of his [NAME] hearing seven or eight months after he lost his job, so I presume he was unsuccessful. Footnote 36 The [APPELLANT] himself said that that there were “very few evening shift opportunities available.” Footnote 37 [ 90 ] I accept that there were very few available jobs that could guarantee that he would only receive shifts that would not interfere with his [COMPANY] program. So, even though I have found that his [COMPANY] schedule did not necessarily prevent him from showing his availability, the [NAME] was such that the [APPELLANT] refusal to consider other jobs unduly limited his chances of returning to work. [ 91 ] Having said that, a claimant is only required to be available for “suitable employment.” Alternate employment that is on less favourable conditions than a claimant’s previous employment is not considered suitable. Footnote 38 But it is only considered unsuitable for a “reasonable interval.” Footnote 39 [ 92 ] I accept that employment which required the Claimant to work shifts that conflicted with his [COMPANY] is employment that is “on less favourable conditions.” So, I accept that the Claimant could limit the kind of employment he was willing to accept, in the way that he did, and still be available—for a reasonable interval. [ 93 ] There is little information on which I can evaluate what interval would have been reasonable in the circumstances. However, I am not going to refer the file to the [NAME] so that it can obtain more evidence on this issue. I have confirmed that the Claimant is disqualified from receiving benefits, so there is no real possibility that he will receive the benefits to which he may have been entitled if he had not been disqualified. [ 94 ] I accept that a 2-month period from April 18, 2025, to June 18, 2025, would have been a reasonable interval in the circumstances. This means that it was reasonable for him to limit his job search to work that would not interfere with his [COMPANY] for a period of two months. [ 95 ] Information about the Claimant’s program indicates that he could have been entitled to a partial refund if he had withdrawn by the mid-point of his [COMPANY] program. This would have been shortly after July 21, 2025. If the Claimant had not found the kind of work he needed to stay in [COMPANY] by June 18, he would still have just over a month in which to find alternate work, or to assess the likelihood of finding alternate work, before he had to decide whether to withdraw from [COMPANY] and recover part of his investment. [ 96 ] After June 18, 2024, work that was suitable employment would be any employment that met the requirements of section 9.002 of the Employment Insurance Regulations. It would include employment whose terms required regular working hours and days. [ 97 ] The Claimant did not broaden his search to include all suitable employment after June 18, 2025, so he was not available after June 18, 2025. Conclusion [ 98 ] The appeal is dismissed. [ 99 ] I have found no error in how the [NAME] decided that the Claimant did not have just cause for voluntarily leaving his employment—which means he is still disqualified from receiving benefits. [ 100 ] I have found errors in how the [NAME] assessed his availability, and I have substituted my decision. I found that the Claimant was available for work for a reasonable interval, which means he was “entitled” to benefits for a time. But he cannot receive benefits regardless, because of the disqualification. That is why I dismissed his appeal. Footnotes Footnote 1 The disqualification is under section 30(1) of the [NAME]. Return to footnote 1 referrer Footnote 2 The disentitlement is under section 18(1)(a) of the [NAME]. Return to footnote 2 referrer Footnote 3 See, for example: [NAME]  v.  Canada ([NAME] [NAME] ), 2016  FC  482; [NAME]  v.  Canada ([NAME] [NAME] ), 2016  FCA  276; [NAME]  v  Canada ([NAME] [NAME] ), 2016  FC  874; [NAME]  v.  Canada ([NAME] [NAME]) , 2019  FCA  256. Return to footnote 3 referrer Footnote 4 See Association of Universities and Colleges of Canada  v.  [NAME] (Access Copyright) , 2012  FCA  22. Return to footnote 4 referrer Footnote 5 This is a plain-language version of the three grounds. The full text is in section 58(1) of the Department of Employment and Social Development Act ( DESDA ) . Return to footnote 5 referrer Footnote 6 See para 28 of the [NAME] decision. Return to footnote 6 referrer Footnote 7 See para 35 to 39 of the [NAME] decision. Return to footnote 7 referrer Footnote 8 [NAME]  v  Canada ([NAME] [NAME]), 2005  FCA  66. Return to footnote 8 referrer Footnote 9 [NAME] [NAME] of Canada  v  [NAME] , 2011  FCA  190. Return to footnote 9 referrer Footnote 10 Listen to the audio recording of the [NAME] hearing at timestamp: 00:20:48 Return to footnote 10 referrer Footnote 11 Listen to the audio recording of the [NAME] hearing at timestamp: 00:22:08. Return to footnote 11 referrer Footnote 12 See GD3-31. Return to footnote 12 referrer Footnote 13 Listen to the audio recording of the [NAME] hearing at timestamp: 00:40:25. Return to footnote 13 referrer Footnote 14 See GD3-30. Return to footnote 14 referrer Footnote 15 See GD3-45. Return to footnote 15 referrer Footnote 16 See GD3-37 Return to footnote 16 referrer Footnote 17 Supra note 11. Return to footnote 17 referrer Footnote 18 Listen to the audio recording of the Appeal Division hearing at timestamp: 00:18:50. Return to footnote 18 referrer Footnote 19 [NAME]  v  Canada ([NAME] [NAME]), 2012  FCA  82. Return to footnote 19 referrer Footnote 20 See para 29 of the [NAME] decision. Return to footnote 20 referrer Footnote 21 See para 43 of the [NAME] decision. Return to footnote 21 referrer Footnote 22 See, for example, GD3-42. Return to footnote 22 referrer Footnote 23 See para 47 of the [NAME] decision. Return to footnote 23 referrer Footnote 24 See, for example, Canada ([NAME] [NAME])  v  [NAME] , A-1691-92; Canada ([NAME] [NAME])  v  [NAME] , 2004  FCA  21. Return to footnote 24 referrer Footnote 25 See Canada ([NAME] [NAME])  v  [NAME], 2008  FCA  133; Canada ([NAME] [NAME])  v  [NAME], 2003  FCA  144. Return to footnote 25 referrer Footnote 26 [NAME] [NAME] of Canada  v.  [NAME] , 2005  FCA  321. Return to footnote 26 referrer Footnote 27 [NAME]  v.  Canada (Employment and Immigration Commission), A-56-96. Return to footnote 27 referrer Footnote 28 [NAME]  v  Canada ([NAME] [NAME]) , 2023  FCA  169. Return to footnote 28 referrer Footnote 29 See GD3-44. Return to footnote 29 referrer Footnote 30 See sections 59(1) and 64 of the DESD Act. Return to footnote 30 referrer Footnote 31 Supra note 27. Return to footnote 31 referrer Footnote 32 See for example Canada ([NAME] [NAME])  v  [NAME] , 2004  FCA  18, in which the delay was only two months; Canada ([NAME] [NAME])  v  [NAME] , 2006  FCA  44. Both decisions were decided on other grounds. Return to footnote 32 referrer Footnote 33 See GD3-47. Return to footnote 33 referrer Footnote 34 Listen to the audio recording of the [NAME] hearing at timestamp: 00:16:30 and 00:25:34. Return to footnote 34 referrer Footnote 35 Listen to the audio recording of the [NAME] hearing at timestamp: 00:15:53. Return to footnote 35 referrer Footnote 36 Listen to the audio recording of the [NAME] hearing at timestamp: 00:10:17, 00:17:45, and 00:19:15. Return to footnote 36 referrer Footnote 37 See GD3-25, 26. Return to footnote 37 referrer Footnote 38 See section 6(4)(c) of the [NAME]. Return to footnote 38 referrer Footnote 39 See section 6(5) of the [NAME]. Return to footnote 39 referrer