Claimant Denied EI Benefits Due to Expired Work Permit

[TRANSLATION] Citation: WA  v  [NAME] Commission , 2026  SST  118 Social Security Tribunal of Canada Appeal Division Leave to Appeal Decision Applicant: [redacted] Respondent: [redacted] Decision under appeal: General Division decision dated January 22, 2026 (GE-25-3426) Tribunal member: [NAME] Decision date: February 19, 2026 File number: AD-26-75 On this page Decision Overview Issues I am not giving the Claimant permission to appeal Conclusion Decision [ 1 ] Permission to appeal is refused. The appeal won’t go ahead. Overview [ 2 ] The Claimant, [NAME]., applied for Employment Insurance ( EI ) regular benefits. Footnote 1 The [NAME] Commission (Commission) decided that he could not be paid EI  benefits as of November 17, 2025. This was because his work permit expired on November 15, 2025, and his social insurance number ( SIN ) was no longer valid. Footnote 2 [ 3 ] The Claimant asked the Commission to reconsider its decision. Footnote 3 He said that he had taken many administrative steps to regularize his situation in Canada. The Commission upheld its decision. Footnote 4 [ 4 ] The Claimant appealed the Commission decision to the General Division. The General Division dismissed the appeal. Footnote 5 It decided that he didn’t show he was available for work. So, he could not receive EI  benefits. [ 5 ] The Claimant is now asking for permission to appeal this decision. An appeal might be heard on the merits only if permission to appeal is given. Footnote 6 I am not giving it for the following reasons. Issues [ 6 ] I have to decide the following issues: a) Is there an arguable case that the General Division made an error of law by misapplying Federal Court of Appeal decisions? b) Is there an arguable case that the General Division made an error of law by finding that not having a valid work permit was a factor to be considered in deciding whether the Claimant was available? c) Is there an arguable case that the General Division made an important error of fact by ignoring the evidence showing the administrative steps the Claimant took to regularize his status? d) Is there an arguable case that the General Division made an error, other than those the Claimant alleged, that would give the appeal a reasonable chance of success? I am not giving the Claimant permission to appeal The legal test for giving permission to appeal [ 7 ] I can only give permission to appeal if the Claimant has an arguable ground on which he might succeed. Footnote 7 I have to refuse permission to appeal if I am satisfied that the appeal has no reasonable chance of success. Footnote 8 A reasonable chance of success means that the Claimant has an arguable ground on which the appeal might succeed. [ 8 ] The appeal has to focus on one of the grounds of appeal set out in the Department of Employment and Social Development Act . So, I have to decide whether there is an arguable case that the General Division made one of the following errors: It breached the principles of procedural fairness. It made an error of jurisdiction It made an error of law. It based its decision on an important error of fact. Footnote 9 [ 9 ] So, I have to give permission to appeal if the General Division might have made one of these errors, and that error gave the Claimant’s appeal a reasonable chance of success. [ 10 ] To give my decision, I looked at the administrative file before the General Division, listened to the recording of the hearing, and carefully read the General Division decision. There is no arguable case that the General Division didn’t properly apply the relevant Federal Court of Appeal decisions [ 11 ] In his application to the Appeal Division, the Claimant said that the General Division didn’t properly apply the binding decision in Canada  v   [NAME] . Footnote 10 He said that the General Division had to do the contextual analysis that this decision required. He never admitted to not being available, and he never imposed any personal restrictions. [ 12 ] The General Division didn’t cite this decision because it doesn’t apply. In fact, [NAME] doesn’t deal with the same issue as the one in this case. In [NAME] , the Court had to decide whether the Claimant had just cause for voluntarily leaving her job under section 29 of the Employment Insurance Act  (Act). The issue of availability was analyzed only because the Claimant had recognized that there was a period when she wasn’t available. The Claimant argues that he didn’t admit to not being available, so the General Division could not find that he wasn’t available. But the General Division doesn’t require him to admit to not being available to find that he hasn’t shown he was available. [ 13 ] The applicable legal test for finding whether a claimant is available for work is the one that the Federal Court of Appeal developed in [NAME] . I will describe the legal test in the next section of my decision. Footnote 11 There is no arguable case that the General Division made an error of law by finding that the expired work permit was a factor to be considered when looking at availability [ 14 ] The Claimant says that the General Division made an error by treating a temporary legal impossibility—resulting from migration procedures—as voluntarily not being available under section 18(1)(a) of the Act. [ 15 ] Section 18(1)(a) says that a claimant has to prove that they were capable of and available for work, but that they weren’t able to find a suitable job to get EI  benefits. The notion of [translation] “availability” isn’t defined in the Act, but the Federal Courts have interpreted it. [ 16 ] There is no arguable case that the General Division misidentified or misapplied the applicable legal test for availability. The General Division noted the three factors to be considered, as set out in [NAME] . It said that the Claimant had to prove the following three things: Footnote 12 He wanted to go back to work as soon as a suitable job was available. He made efforts to find a suitable job. He didn’t set personal conditions that might unduly (in other words, overly) limit his chances of going back to work. [ 17 ] In addition, there is ample case law from the Federal Court and the Federal Court of Appeal on the issue of availability. This is an objective issue. Whether a claimant is available doesn’t depend on the reasons they give for restricting their availability. The Federal Court of Appeal noted in many of its decisions that finding whether a claimant is available can’t depend on the explanations they give for limiting their availability. Footnote 13 This principle applies even if these explanations evoke sympathy. Footnote 14 [ 18 ] So, the legal test doesn’t require the General Division to find that there is no [translation] “voluntary” availability. Whether it is voluntary or not isn’t part of the test. Rather, it is about finding whether there are conditions that might limit the person’s availability to find work. In its decision, the General Division explained that the majority of case law says that a claimant without a valid work permit isn’t capable of legally working in Canada. Also, they unduly limit their chances of going back to work. Footnote 15 The General Division said that whether or not they are at fault for imposing the limit isn’t relevant to finding whether they are available. [ 19 ] Also, the following is part of a series of decisions that the Appeal Division of the Social Security Tribunal gave: considering that a valid work permit is missing when assessing availability; and, more specifically, looking at whether there are personal conditions that unduly limit the ability to go back to work. Footnote 16 So, there is no arguable case that the General Division made an error of law by considering that the Claimant wasn’t legally entitled to work in Canada when finding whether he was available. Otherwise, the result would be absurd. When looking at whether you were available for work, anything that limited your ability to work in Canada has to be considered. There is no arguable case that the General Division made an important error of fact by ignoring evidence showing the administrative steps the Claimant took to regularize his status [ 20 ] In his application to the Appeal Division, the Claimant said that the General Division didn’t consider evidence showing that he was willing to work. The evidence also showed that he was actively taking administrative steps to regularize his immigration status. Footnote 17 The Claimant doesn’t dispute that his work permit had expired, and that he didn’t have a valid work permit at the time of the General Division hearing. [ 21 ] An important error of fact might happen if the General Division ignores important evidence. Footnote 18 There is no arguable case that it made this error in this case. [ 22 ] In fact, the General Division explicitly looked at the steps that the Claimant had taken in its decision. The General Division considered that the Appellant: [redacted] appealed to the Federal Court to challenge that decision asked for a new pre-removal risk assessment took many administrative steps to regularize his situation Footnote 19 [ 23 ] The General Division considered that the Claimant could not apply for his work permit to be renewed, since the [NAME] had found that he wasn’t at risk before being removed. Footnote 20 But it decided that this didn’t change the fact that he wasn’t legally entitled to work in Canada. Also, the General Division noted that he testified that his friends had promised him a job once he was legally entitled to work in Canada . Footnote 21 So, the evidence on file supported the General Division’s finding that not having a work permit limited his availability to go back to work. [ 24 ] The Claimant hasn’t shown an arguable case that the General Division didn’t consider the administrative steps he took to restore his status. The General Division considered them, but it didn’t find that they showed he was available for work. The Claimant isn’t satisfied with the General Division’s finding. But I can’t intervene when the General Division applies a well-established legal test to the facts of the case. Footnote 22 There is no arguable case that the General Division made an error that would give the appeal a reasonable chance of success [ 25 ] I have reviewed the record since the Claimant is representing himself. I did so to find whether there is an arguable case that the General Division made an error that would allow me to intervene, and that would give the appeal a reasonable chance of success. Footnote 23 But I didn’t find one. Conclusion [ 26 ] Permission to appeal is refused. This means that the appeal won’t go ahead. Footnotes Footnote 1 See the application for benefits at GD3-3. Return to footnote 1 referrer Footnote 2 See the notice of decision at GD3-13. Return to footnote 2 referrer Footnote 3 See the reconsideration request at GD3-14. Return to footnote 3 referrer Footnote 4 See the notice of decision at GD3-26. Return to footnote 4 referrer Footnote 5 See the General Division decision at AD1-22. Return to footnote 5 referrer Footnote 6 See section 56(1) of the Department of Employment and Social Development Act  ( DESD  Act). Return to footnote 6 referrer Footnote 7 [NAME]  v  Canada (Attorney General) , 2016  FC  115 at para 12. Return to footnote 7 referrer Footnote 8 See section 58(2) of theDESD Act. Return to footnote 8 referrer Footnote 9 See section 58(1) of theDESD Act . Return to footnote 9 referrer Footnote 10 See Canada (Attorney General)  v  [NAME] , 2005  FCA  73. Return to footnote 10 referrer Footnote 11 See the Federal Court of Appeal decision in [NAME]  v  [NAME] and Immigration Commission , A-56-96 and A-57-96. Return to footnote 11 referrer Footnote 12 See para 20 of the General Division decision at AD1-25. Return to footnote 12 referrer Footnote 13 [NAME]  v  Canada (Attorney General) , 2003  FCA  198 at para 1. Return to footnote 13 referrer Footnote 14 See Canada (Attorney General)  v  [NAME] , 2005  FCA  321 at para 9. Return to footnote 14 referrer Footnote 15 See para 33 of the General Division decision at AD1-27. Return to footnote 15 referrer Footnote 16 See, for example, [NAME] Commission  v  GN , 2025  SST  374; [NAME] Commission  v  [NAME], 2024  SST  559; and AS  v  [NAME] Commission, 2018  SST  1291. Return to footnote 16 referrer Footnote 17 See the application to the Appeal Division at AD1-9. Return to footnote 17 referrer Footnote 18 See the Federal Court decision in [NAME]  v  Canada (Attorney General) , 2024  FC  2038 at para 30. Return to footnote 18 referrer Footnote 19 See paras 16 and 17 of the General Division decision at AD1-24. Return to footnote 19 referrer Footnote 20 See para 32 of the General Division decision at AD1-27. Return to footnote 20 referrer Footnote 21 See para 18 of the General Division decision at AD1-24. Return to footnote 21 referrer Footnote 22 [NAME]  v  Canada (Attorney General) , 2018  FCA  100 at para 6. Return to footnote 22 referrer Footnote 23 [NAME]  v  Canada (Attorney General) , 2016  FC  615 at para 10. Return to footnote 23 referrer