Canadian Employment Law Today

Canadian HR Reporter, 2020 4 Employment insurance and work permit holders Foreign workers pay into the EI program, but eligibility for benefits when their jobs end isn't automatic BY SERGIO R. KARAS E mployment insurance is available only to those who were employed in insur- able employment, have paid premiums in the year immediately preceding their ap- plication for benefits and meet the qualify- ing conditions of the program. The federal Employment Insurance Act defines insurable employment as employment in Canada under a contract. If a foreign worker is em- ployed under a contract and has paid premi- ums, they may be eligible for EI benefits. A person has to be willing and able to work to be eligible for EI benefits. To receive ben- efits for a working day in a benefit period, a claimant must prove — not simply allege — that they were capable of and available for work and unable to obtain suitable work on that day. The question of availability for work is an objective one and it cannot depend on the reason for the restrictions on availability: Vezina v. Canada (Attorney General). Availabil- ity must be determined by analyzing three factors set out by the Federal Court in Faucher v. Canada (Employment and Immigration Com- mission): • The desire to return to the labour market as soon as a suitable job is offered • The expression of that desire through ef- forts to find a suitable job • Not setting personal conditions that might unduly limit the chances of return- ing to the labour market. It is not intended to include unavailability imposed upon a claimant by circumstances beyond their control when the claimant is ready, available and willing to accept employ- ment. Foreign workers pay premiums A foreign worker under a contract of employ- ment is required to pay premiums for EI and may generally qualify for benefits. However, there are circumstances under which a foreign national may be denied benefits. In R.R. v. Canada Employment Insurance Commission, the claimant had an expired work permit when he applied for EI benefits. The Canada Employ- ment Insurance Commission determined that he was not eligible for EI benefits as he did not hold a valid work permit. The claimant re- quested reconsideration, but the commission upheld its decision. The claimant appealed to the General Division of the Social Security Tribunal of Canada, explaining that he was actively seeking employment and would be able to obtain a work permit once he secured new employment. He also argued that he had paid EI premiums and, therefore, should be eligible for benefits. The General Division determined that the claimant was not able to prove his availability, regardless of whether he had paid premiums. The tribunal's appeal di- vision upheld the decision. If a foreign worker has a closed work permit — a work permit that is for a specific employer — they may or may not be eligible for EI, de- pending on whether they will be able to work despite the restriction on the work permit or if they will be able to have the restriction re- moved when they find employment. In Severine Desmedt, the claimant was a French citizen who was issued a work permit under the Canada-France agreement. The per- mit restricted her employment to a specific employer. She was laid off due to shortage of work and claimed EI benefits. The commis- sion denied her claim, stating that she was not available for work. She appealed to the Board of Referees, bringing evidence of a new work permit that was also tied to a specific employ- er. The Board of Referees dismissed her appeal because her work permit was not retroactive to the date of her claim and was subject to limitations. She challenged the dismissal, ar- guing that her new permit was proof that the limitation in her original work permit was more technical than real. The Umpire under the Employment Insurance Act held that the board's decision was unreasonable and that "a flexible approach must be adopted because the absence of a valid permit without restric- tions does not automatically mean that a claimant is not available. Making a decision of this issue involves more than simply review- ing the conditions set out on the permit." In R.D. v. Canada Employment Insurance Commission, the tribunal reached a similar conclusion but recommended that the claim- ant apply to have their work permit renewed or extended prior to its expiry, even if they have not secured employment. A failure to do so may result in disentitlement to benefits. In Godoy Enriquez v. M.N.R., the claimants came to Canada as seasonal agricultural work- ers and held closed work permits that autho- rized them to work for a specific employer. They were recruited by an unscrupulous or- ganization promising better pay and quality of life and, without changing their work per- mits to the new employer, they left their jobs. A representative of the employment agency promised that he would take care of all the required documentation to change their work permits but never did. The claimants spoke little English and did not understand the doc- uments they signed. The Minister of National Revenue denied their claims for EI benefits because they did not have valid work permits. The Tax Court of Canada held that the appel- lants worked for an employer that was not the one specified in the work permit, but the good faith of the appellants and the object of the Employment Insurance Act enabled the court to uphold the validity of the contracts. It was ruled that the appellants were employed in in- surable employment. Expired permit removes availability If a work permit expires, the worker may not CASE IN POINT: IMMIGRATION The employment insurance program (EI) is a federal insurance program that provides temporary income support to unemployed workers while they look for employment or upgrade their skills. It's available only to those who were employed in insurable employment, have paid premiums in the year immediately preceding their application for benefits and meet the qualifying conditions of the program. Foreign workers usually pay into the program, but whether they're eligible to receive benefits depends on their circumstances. Sergio Karas looks at the different circumstances that can exist for foreign workers applying for EI benefits. BACKGROUND The individual situation of a foreign national will determine their eligibility.

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