Availability

II. Principles of Law

(g) Course of Instruction

Unemployment insurance benefits are not meant to subsidize claimants who leave the work force to attend school. Claimants in this situation must still prove their availability for employment. Whether a full-time student is available is a question of fact.

Canada (A.G.) v. Floyd, April 27, 1994, F.C.J. No. 605 (F.C.A.) A-168-93 Judgment of the federal court of appeal
Canada (A.G.) v. Martel (1994), 175 N.R. 275 (F.C.A.) A-1691-92
Canada (A.G.) v. Lamonde, 2006 FCA 44 A-566-04 Judgment Of The Federal Court Of Appeal

There is a presumption that a claimant who is enrolled in a full-time course of instruction is not available. However, this is a presumption of fact which can be rebutted. It can be rebutted by proof of exceptional circumstances.

Canada (A.G.) v. Mercer, [1977] 2 F.C. 389 (F.C.A.) A-690-75 Judgment of the federal court of appeal
Landry v. Canada (A.G.) [1992], F.C.J. No. 965 (F.C.A.) A-719-91 Judgment of the federal court of appeal
Canada (A.G.) v. Rideout, [2004] F.C.J. No. 1487 (F.C.A.) A-670-02 Judgment of the federal court of appeal
Canada (A.G.) v. Gagnon, 2005 FCA 321 A-556-04 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Lamonde, 2006 FCA 44 A-566-04 Judgment Of The Federal Court Of Appeal

The most effective way to rebut the presumption of non-availability, is for a claimant to demonstrate a history of full-time or part-time work while attending a course of instruction. However, the mere absence of such a pattern will not automatically mean the claimant is unavailable.

Landry v. Canada (A.G.) [1992], F.C.J. No. 965 (F.C.A.) A-719-91 Judgment of the federal court of appeal
Canada (A.G.) v. Rideout, [2004] F.C.J. No. 1487 (F.C.A.) A-670-02 Judgment of the federal court of appeal
Canada (A.G.) v. Loder, 2004 FCA 18 A-699-02 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Lamonde, 2006 FCA 44 A-566-04 Judgment Of The Federal Court Of Appeal

A claimant must be able to establish a pattern which demonstrates his or her ability to work and attend the full-time course of instruction. Furthermore, Saturdays and Sundays are not regarded as working days for the purpose of determining an individual's availability for work.

Canada (A.G.) v. MacDonald, May 31, 1994, F.C.J. No. 841 (F.C.A.) A-672-93 Judgment of the federal court of appeal; affirming CUB 23283 Judgment Of The Federal Court of Appeal
Canada (A.G.) v. Primard, 2003 FCA 349 A-683-01 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Gagnon, 2005 FCA 321 A-556-04 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Lamonde, 2006 FCA 44 A-566-04 Judgment Of The Federal Court Of Appeal

The finding of a Board about whether a pattern of combining work and school has been established is a finding of fact.

Jean v. Canada (A.G.) , A-787-88, May 3, 1989, (F.C.A.) Judgment of the federal court of appeal ; affirming CUB 15439 Judgment Of The Federal Court of Appeal

A history of part-time and summer employment together with a course of instruction or attendance at school may not be sufficient to show availability since there is nothing exceptional about this behavior given that it is what most students do.

Jean v. Canada (A.G.) , A-787-88, May 3, 1989, (F.C.A.) Judgment of the federal court of appeal ; affirming CUB 15439 Judgment Of The Federal Court of Appeal

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