Federal Appeal

Public Law

Social programs

Employment insurance

Employee entitled to employment insurance benefits during leave of absence

L was employed by bank until October 2013 when she took personal, unpaid leave of absence in order to care for her elderly parents. Written agreement between bank and L provided that during her leave, she would continue to accrue service with bank and receive benefits. Agreement further provided that intended purpose of bank’s leave policy was to provide employees with time away from workplace to address personal needs and that earning income from other sources over period of leave was not permitted. L made arrangements for her parents’ care and began applying for jobs at bank without success and her leave of absence ended when her employment was terminated. L applied for employment insurance benefits and her claim was antedated so that her benefit period was established effective to October 27, 2013. Employment Insurance Commission rejected application for benefits on basis that L had not shown that she was available for work during her benefit period. General Division of Social Security Tribunal concluded that L was entitled to benefits. Decision was confirmed on appeal by Appeal Division. Attorney General applied for judicial review. Application for judicial review dismissed. Appeal Division made findings of facts including that L pursued more than 10 possible positions with bank in one year and did all she could to look for work within bank. Appeal Division found that by limiting her job search to positions at bank, L did not unduly limit her chance of returning to labour market so as to be unavailable. While it may have been open to Appeal Division to make another finding, it did not reach unreasonable conclusion.

Canada (Attorney General) v. Lavita (2017), 2017 CarswellNat 1521, 2017 FCA 82, Eleanor R. Dawson J.A., Wyman W. Webb J.A., and Donald J. Rennie J.A. (F.C.A.).

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