SST Ruling on Employment Insurance and Work Permits

[TRANSLATION] Citation: [NAME] Commission  v  JV , 2026  SST  131 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Representative: [NAME] Respondent: [redacted] General Division decision dated January 9, 2026 (GE‑25‑3448) Tribunal member: [NAME] of hearing: Teleconference Hearing date: April 13, 2026 Hearing participants: Appellant Appellant’s representative Respondent Decision date: May 8, 2026 File number: AD-26-55 On this page Decision Overview Issues Analysis Remedy Conclusion Decision [ 1 ] The appeal is allowed. [ 2 ] The General Division made an error of law. [ 3 ] I gave the decision that should have been given. [ 4 ] The [APPELLANT] wasn’t available for work from January 15 to June 19, 2025, inclusive. He isn’t entitled to receive [NAME] ( [NAME] ) benefits during this period. Overview [ 5 ] The Claimant, [RESPONDENT]., applied for [NAME]  regular benefits. Footnote 1 The [NAME] Commission (Commission) decided that it could not pay him benefits as of January 15, 2025, because his work permit had expired on January 14, 2025. Footnote 2 [ 6 ] The Claimant asked for that decision to be reconsidered. Footnote 3 He said that his employer didn’t provide the documents needed to renew his work permit. He said he had the right to go back to work as of June 20, 2025. And he got a new work permit on September 29, 2025. Footnote 4 [ 7 ] The Commission replaced its initial decision. It decided that it could not pay the Claimant [NAME]  benefits from January 20, 2025, to September 26, 2025, because he hadn’t shown that he was available for work. The Commission said that his work permit expired on January 13, 2025, and that his Social Insurance Number ( SIN ) was no longer valid. Footnote 5 [ 8 ] The [APPELLANT] appealed that decision to the General Division. The General Division allowed his appeal in part. It decided that he had shown that he was available for work from January 15, 2025, to June 20, 2025. Footnote 6 [ 9 ] The Commission asked for permission to appeal, and I gave it. [ 10 ] The Commission argues that the General Division made an error of law and an important error of fact in deciding that the [APPELLANT] was available for work when he wasn’t able to work legally in Canada. Footnote 7 [ 11 ] The [APPELLANT], for his part, agrees with the General Division decision. Issues [ 12 ] I decided the following issues: a) Did the General Division make an error of law by considering the reasons why the work permit was refused when assessing availability? b) If so, what is the appropriate remedy? Analysis The grounds of appeal that allow me to intervene [ 13 ] The appeal has to be based on one of the grounds of appeal set out in the law. So, I have to decide whether the General Division made any of the following errors: failed to follow the principles of procedural fairness made an error of jurisdiction made an error of law based its decision on an important error of fact Footnote 8 [ 14 ] I only need to find one error to intervene. The General Division made an error of law by considering the reasons why the work permit was refused when assessing availability [ 15 ] The General Division assessed whether the Claimant was available by applying the three factors that the Federal Court of Appeal set out in [NAME] . Footnote 9 This legal test has been well established for many years. The General Division correctly set it out. The General Division set out the correct legal test [ 16 ] To decide whether a claimant is available for work under section 18(1)(a) of the [NAME] Act  ( [NAME]), it is necessary to assess whether the claimant has met the following conditions: He wanted to go back to work as soon as a suitable job was available. He was making efforts to find a suitable job. There were no personal conditions that might have overly limited his chances of going back to work. Footnote 10 The General Division decided that the Claimant hadn’t set personal conditions that unduly limited him going back to work [ 17 ] In analyzing the third factor, whether there were personal conditions that might overly limit his chances of going back to work, the General Division decided that the Claimant hadn’t set personal conditions that would keep him from going back to work. Footnote 11 [ 18 ] The General Division decided that not having a valid work permit isn’t, in itself, a personal condition that limits the chances of finding a job. Footnote 12 [ 19 ] The General Division decided that it was the lack of efforts to get a work permit that might have unduly limited the [APPELLANT] chances of going back to work. Footnote 13 [ 20 ] The General Division said that the [APPELLANT] made every effort needed to go back to work for his employer X. But the facts showed that it was his employer who failed to send the documents needed to renew his work permit. Footnote 14 [ 21 ] The General Division decided that it was the employer who delayed submitting the documents. And, as a result, this kept the [APPELLANT] from getting permission to work while waiting for his new work permit. Footnote 15 It said that this is what limited the [APPELLANT] chances of going back to work. Footnote 16 The reasons why the [APPELLANT] lost his work permit don’t show that he was available [ 22 ] The General Division made an error of law by considering factors that aren’t relevant to the assessment of availability, particularly under the factor of personal conditions unduly limiting the ability to go back to work. [ 23 ] The General Division didn’t apply the principles that the Federal Court of Appeal set out about the notion of availability under section 18(1)(a) of the [NAME]. Footnote 17 [ 24 ] The Federal Court of Appeal has said that availability can’t depend on the reasons why a claimant has restrictions on their availability, even if those reasons bring out compassion or sympathy. Footnote 18 [ 25 ] The question of availability is an objective one. Footnote 19 [ 26 ] The Federal Court of Appeal has said that the willingness to work isn’t necessarily the same as availability. Footnote 20 It held that paying benefits depends on a person’s availability, not on the reasons why they aren’t available . Footnote 21 [ 27 ] In [NAME] , the Federal Court of Appeal decided that a claimant wasn’t available for work because a major fire had destroyed his house, his belongings, and his work clothes. Footnote 22 So, it was a case of force majeure (an event that was beyond the [APPELLANT] control). But the Federal Court of Appeal still decided that he wasn’t available for work. That was because he could not get to work, even though he really wanted to be working at that time. [ 28 ] The Federal Court of Appeal has also said that, to decide whether an individual is available, you have to look at whether that individual is struggling with obstacles that undermine their willingness to work. Footnote 23 [ 29 ] So, the General Division made an error of law when it considered that the efforts the Claimant made to get a new work permit could show that he was available and that he wasn’t struggling with an obstacle that undermined his willingness to work. [ 30 ] Yet the evidence shows that the Claimant was kept from working simply because his application to renew his work permit had been refused. In fact, his employer [NAME] still wanted him to work there. But as soon as the employer learned that the Claimant no longer had a valid work permit, it told him that he had to stop working right away. [ 31 ] An Appeal Division decision on similar facts found that the General Division made an error in assessing availability by considering the reasons why a claimant was unable to renew his work permit. Footnote 24 The Appeal Division decided that not having a valid work permit was a personal condition that overly limited the chances of going back to work. I am not bound by that decision, but I find it persuasive. [ 32 ] The reasons why the work permit wasn’t renewed in January 2025 aren’t part of the availability test because they don’t show that the Claimant was available. [ 33 ] Because the General Division made an error of law, I can intervene. Remedy [ 34 ] Section 59(1) of the Department of Employment and Social Development Act allows me to give the decision that should have been given. [ 35 ] The Commission wants me to find that the [APPELLANT] wasn’t available for work during the period when he wasn’t legally allowed to work in Canada, from January 15 to June 19, 2025. [ 36 ] The [APPELLANT] said that he wants his file to be sent back for reconsideration. He wants his file to be reviewed with compassion. The fact that he could not work wasn’t his fault. It was his employer who made a mistake. He came to Canada to work. He paid into the [NAME] while he was working in Canada. I will give the decision that should have been given [ 37 ] Reconsidering a matter is appropriate when the file is incomplete or when the process before the General Division was unfair. [ 38 ] That isn’t the case here. This means that I can’t allow the file to be reconsidered as the [APPELLANT] wants. A reconsideration isn’t a second chance for the [APPELLANT] to present his point of view. [ 39 ] All of the information is already in the file that was before the General Division. [ 40 ] The Claimant had the chance to explain to the General Division that it was his employer who failed to send a document needed to renew his work permit. In fact, he provided the letter from [NAME] stating that his employer had to provide a labour market impact assessment. Footnote 25 [ 41 ] So, I will analyze the file as it is and give the decision that should have been given. [ 42 ] At the Appeal Division hearing, the Commission’s representative said that she wasn’t disputing the General Division’s finding that the Claimant wasn’t disentitled from receiving benefits under section 50(8) of the [NAME]. Footnote 26 This means that I won’t revisit this finding because the parties aren’t disputing it. The Claimant wasn’t available for work and unable to find a suitable job under section 18(1)(a) of the [NAME] [ 43 ] Section 18(1)(a) of the [NAME] says that to be entitled to be paid benefits, you have to prove that you are “capable of and available for work and unable to obtain suitable employment.” [ 44 ] As mentioned earlier, there are three factors to consider when deciding whether a claimant was available for work within the meaning of this section: wanting to go back to work as soon as a suitable job is available making efforts to find a suitable job not setting personal conditions that might limit the chances of going back to work Footnote 27 [ 45 ] I accept the General Division’s findings on the first two factors at paragraphs 31 to 41 of its decision. Footnote 28 [ 46 ] In fact, the [APPELLANT] genuinely wanted to work and made efforts to allow himself to work as soon as possible, by applying for a new work permit on January 17, 2025. [ 47 ] But I have to change the General Division’s finding on the third factor. The [APPELLANT] was facing personal conditions that kept him from going back to work [ 48 ] The Federal Court of Appeal said in [NAME] that the question of availability is above all a question of fact. Footnote 29 For that, the evidence has to be assessed. [ 49 ] The [APPELLANT] losing his work permit directly caused his unemployment situation. No matter why the work permit was refused, it isn’t disputed that he didn’t have a valid work permit from January 15, 2025, to June 19, 2025. This means that he was in a factual situation that kept him from being available for work. [ 50 ] The Federal Court of Appeal said that an obstacle is a constraint that deprives someone of their free choice. Footnote 30 An obstacle doesn’t have to come from a deliberate choice that the claimant made. Rather, it is a factual situation that results in the claimant being unable to work. It can also be said that an obstacle faced by a claimant that keeps them from getting to work is a personal condition or an undue limitation on them being available for work. Footnote 31 [ 51 ] As in [NAME] , where the Claimant was a victim of a fire and was unable to go to work, the fact that [RESPONDENT]. didn’t have a work permit was an obstacle that kept him from being able to work. This was even though he wanted to keep working without being interrupted. [ 52 ] In a similar matter about a claimant whose work permit had expired, the Appeal Division decided that availability isn’t determined by the reasons why someone isn’t available. Footnote 32 The Appeal Division criticized the General Division for finding that the Claimant was available because he made efforts to renew his work permit, even though those efforts didn’t result in a work permit being issued on time. Footnote 33 [ 53 ] I see similarities with [RESPONDENT].’s file. He clearly wanted to work. He came to Canada on a closed work permit specifically so he could work. He applied to renew his work permit in the fall of 2024, many months before it expired. Footnote 34 [ 54 ] But even with the efforts and steps he took, the fact remains that his application was refused on January 14, 2025. Footnote 35 As a result, this left him without temporary resident status and without a work permit. From one day to the next, his employer told him that he could not work anymore. He had to wait until the new work permit application, filed on January 17, 2025, was approved. [ 55 ] Losing the work permit was an obstacle, an obstacle to him being able to get to work. The evidence on this point is clear. The Claimant stated that he wanted to work but didn’t have a status that allowed him to do that. Footnote 36 He also said that he didn’t look for another job because he didn’t have a valid work permit or status. So, he could not work. Footnote 37 [ 56 ] This means that the Claimant was facing an obstacle that meant he could not work in his usual job. [ 57 ] There were clearly personal conditions that kept the Claimant from going back to work. Not having a valid work permit was an obstacle that kept him from working from January 15, 2025, to June 19, 2025. During that period, he could not go back to work at the first chance because no employer could hire him without a valid work permit. [ 58 ] This means that the third factor of the availability test isn’t met. [ 59 ] I have a lot of empathy for the [APPELLANT]. He came to Canada to work, and he expected his employer to take the administrative steps needed to keep being allowed to legally work in Canada. [ 60 ] The employer’s failure caused the Claimant harm because he was kept from working for about six months. But this mistake doesn’t allow the Claimant to meet the conditions set out in the law to be entitled to [NAME]  benefits. The Claimant wasn’t unable to find a suitable job [ 61 ] I found that the Claimant was facing personal conditions that kept him from going back to work. So, he wasn’t available within the meaning of section 18(1)(a) of the [NAME]. [ 62 ] But I also want to point out that the Claimant wasn’t “unable to find a suitable job.” That is another factor that has to be shown to be entitled to [NAME]  benefits. [ 63 ] The Claimant had a suitable job. He was a driver for X under a closed work permit. This employer helped him apply for a new work permit on January 17, 2025. Footnote 38 [ 64 ] The evidence shows that as soon as the work permit was renewed on June 20, 2025, the Claimant went back to work as a driver for X. Footnote 39 [ 65 ] So, the Claimant never actually lost his suitable job. Rather, because he was no longer legally allowed to work in Canada, he had to wait from January to June before going back to his job as a driver. He did that as soon as he was legally allowed to. Conclusion [ 66 ] The appeal is allowed. [ 67 ] The General Division made an error of law. [ 68 ] I gave the decision that should have been given. [ 69 ] The Claimant wasn’t available for work from January 15 to June 19, 2025, inclusive. He isn’t entitled to receive benefits for that period. Footnotes Footnote 1 See his benefit claim at GD3-5. Return to footnote 1 referrer Footnote 2 See the notice of decision at GD3-29. Return to footnote 2 referrer Footnote 3 See the reconsideration request at GD3-31. Return to footnote 3 referrer Footnote 4 See the reconsideration request at GD3-32. Return to footnote 4 referrer Footnote 5 See the notice of decision at GD3-40. Return to footnote 5 referrer Footnote 6 See the General Division decision at AD1-12. Return to footnote 6 referrer Footnote 7 See the Commission’s arguments at AD3-1. Return to footnote 7 referrer Footnote 8 See section 58(1) of the Department of Employment and Social Development Act. Return to footnote 8 referrer Footnote 9 See the General Division decision at AD1-17 at para 29. It cited [NAME]  v  [NAME] and Immigration Commission , A-56-96 and A-57-96. Return to footnote 9 referrer Footnote 10 See the General Division decision at AD1-17 at para 29. The three factors are listed in [NAME]  v  [NAME] and Immigration Commission , A-56-96 and A-57-96. Return to footnote 10 referrer Footnote 11 See the General Division decision at AD1-20 at para 48. Return to footnote 11 referrer Footnote 12 See the General Division decision at AD1-20 at para 44. Return to footnote 12 referrer Footnote 13 See the General Division decision at AD1-20 at para 44. Return to footnote 13 referrer Footnote 14 See the General Division decision at AD1-20 at para 45. Return to footnote 14 referrer Footnote 15 See the General Division decision at AD2-20 at para 45. Return to footnote 15 referrer Footnote 16 See the General Division decision at AD1-20 at para 45. Return to footnote 16 referrer Footnote 17 See the Federal Court of Appeal decisions Canada (Attorney General)  v  [NAME] , (1982), A-613-81 ( FCA ) at para 19; and [NAME]  v  Canada (Attorney General) , 2003  FCA  198 at para 1. Return to footnote 17 referrer Footnote 18 See the Federal Court of Appeal Canada decision (Attorney General)  v  [NAME] (1982), A-613-81 ( FCA ) at para 19. Return to footnote 18 referrer Footnote 19 See the Federal Court of Appeal decision Canada (Attorney General)  v  [NAME], 2005  FCA  32. Return to footnote 19 referrer Footnote 20 See the Federal Court of Appeal decision Canada (Attorney General)  v  [NAME] , 2010  FCA  60 at para 5. Return to footnote 20 referrer Footnote 21 See the Federal Court of Appeal decision Canada (Attorney General)  v  [NAME] , 2010  FCA  60 at para 5. Return to footnote 21 referrer Footnote 22 See the Federal Court of Appeal decision Canada (Attorney General)  v  [NAME] , 2010  FCA  60 at para 2. Return to footnote 22 referrer Footnote 23 See the Federal Court of Appeal decision Canada (Attorney General)  v  [NAME] , 2010  FCA  60 at para 5. Return to footnote 23 referrer Footnote 24 [NAME] Commission  v  [NAME] , 2025 SST 374. Return to footnote 24 referrer Footnote 25 See the letter from [NAME] ([NAME]) at GD3-21. Return to footnote 25 referrer Footnote 26 Listen to the recording of the Appeal Division hearing at 00:20:00. Return to footnote 26 referrer Footnote 27 See how the three factors of the analysis are set out in [NAME]  v  Canada (Employment and Immigration) , A-56-96. They have been repeated in many Federal Court decisions since then, including [NAME]  v  Canada (Attorney General) , 2023  FC  1766 at para 32. Return to footnote 27 referrer Footnote 28 See the General Division decision at AD1-18 and AD1-19. Return to footnote 28 referrer Footnote 29 See the Federal Court of Appeal decision [NAME]  v  [NAME] and Immigration Commission , A‑56-96 and A-57-96. Return to footnote 29 referrer Footnote 30 See the Federal Court of Appeal decision Canada (Attorney General)  v  [NAME] , 2010  FCA  60 at para 5. Return to footnote 30 referrer Footnote 31 See the Federal Court of Appeal decision Canada (Attorney General)  v  [NAME] , 2010  FCA  60 at para 5. Return to footnote 31 referrer Footnote 32 See the Appeal Division decision [NAME] Commission  v  [NAME] , 2026 SST 107 at para 34. Return to footnote 32 referrer Footnote 33 See the Appeal Division decision [NAME] Commission  v  [NAME] , 2026 SST 107 at para 34. Return to footnote 33 referrer Footnote 34 See the acknowledgement of the Claimant’s application at GD3-19. Return to footnote 34 referrer Footnote 35 [NAME]’s response to the work permit application at GD3-21. Return to footnote 35 referrer Footnote 36 See the notes about a phone call at GD3-28. Return to footnote 36 referrer Footnote 37 See the notes about a phone call at GD3-28. Return to footnote 37 referrer Footnote 38 See the notes about a phone call at GD3-28. Return to footnote 38 referrer Footnote 39 See the reconsideration request at GD3-32. Return to footnote 39 referrer