Working on Closed WP, Terminated and EI (Employement Insurance) Denied

[arisudu]

I don't know if it is off the topic here but I think it is related to this forum. I'm currently in Canada on a closed WP (with LMO). I was recently terminated due to project unavailability with my current employer. My WP and TRV will expire on Jan 2013. I applied for EI (Employment Insurance) benefits and it was refused. Reason: Since you're working on closed WP you're not considered "Available" to work for another employer. So EI can not be paid to you. They sent me a letter as well. I'm actively looking for new jobs and have 2 offers with approved LMOs. I'm in the process of applying new WPs.

I've contacted my employer and they said you can appeal this decision. Letter from EI also has a page describing how to appeal the decision.

Does anyone have a similar situation like mine? Can you share your experience? Did you get your EI?

 

[arisudu]

No one has any experience in getting EI?

 

[computergeek]

I've heard that this decision goes either way. Apparently they are much more likely to approve your EI if you are in AB than other provinces. I also note that US citizens have separate rights to EI that do not allow Service Canada to refuse their claims, which seems discriminatory as well.

Personally, I find it repugnant - they are happy to withhold EI from your paycheque, but they aren't willing to pay the benefits to you.

Were I in your position, I would appeal it. I'd point to the fact that you are perfectly willing to work, but you are waiting for HRSDC to approve your job offers. I've not researched the case law in this area, but I would be absolutely shocked if the case law supported the idea that one could be denied a benefit for which one has contributed. But to do a credible job you'd either need to hire an attorney or do the research yourself.

I did a quick search of CanLii ("temporary foreign worker" and "employment insurance") and found a single court or tribunal decision with those terms: http://canlii.ca/t/flcb7

For all that, this is a very encouraging decision, although it relates to worker's compensation rather than Employment Insurance. It establishes that a TFW has the same rights as a permanent worker. It actually rejects the idea of using your earnings potential after the event (in this case injury) and overturns the WCB appeal board's findings fairly broadly - it's not a full victory for the worker in this case but it was a significant finding. This is the sort of rationale one would need to construct to be successful.

The impediment to forward employment is not yours, it is a construct of the law and the manner in which it is being used is simply as a form of disenfranchisement of TFWs. CIC is very clear on their own website that TFWs have the same rights as permanent workers, yet Service Canada tells them after the fact that this isn't really the case. Personally, I see grounds for arguing this is against "natural justice", but again it would require more research to make this case.

Then again, if you're not employed right now, this might be a good project while waiting for those LMOs...

It is sad how poorly TFWs are treated by the system.

 

[JGK]

I don't know if it is off the topic here but I think it is related to this forum. I'm currently in Canada on a closed WP (with LMO). I was recently terminated due to project unavailability with my current employer. My WP and TRV will expire on Jan 2013. I applied for EI (Employment Insurance) benefits and it was refused. Reason: Since you're working on closed WP you're not considered "Available" to work for another employer. So EI can not be paid to you. They sent me a letter as well. I'm actively looking for new jobs and have 2 offers with approved LMOs. I'm in the process of applying new WPs.

I've contacted my employer and they said you can appeal this decision. Letter from EI also has a page describing how to appeal the decision.

Does anyone have a similar situation like mine? Can you share your experience? Did you get your EI?

I had a similar experience back in 2008. The company I was working for closed the facility and I was Laid off. I was initially given the same reason for EI denial but I consulted the appeals cases on the Service Canada website. There were several similar cases which had been overturned on appeal. The reason given was that the person was not "unavailable for work", they could look for work and accept an new position but simply had to satisfy the necessary requirements to obtain a new LMO and TWP and start work.

I contacted Service Canada and used this argument and cited the cases on their own site. They reversed the decision on the following day.

I would assume it is the same today unless the rules have changed dramatically.

 

[computergeek]

Even after broadening the search term ("foreign worker" and "employment insurance") I couldn't find anything very useful.

In going through this, however, it did strike me that one interesting approach would be to pursue your former employer - to argue that because they withheld the EI payment, they are legally responsible for those benefits even if their insurance carrier fails to do so - indeed, their insurance carrier (in this case Service Canada) has ruled that they won't pay because you are tied to the specific employer. If you contract with me for a specific benefit and you then pass along the claim to my insurance carrier and they refuse it, I am not absolved of my liability to you.

I realize this is a stretch, but a case like this would get the law changed far faster than a victory against Service Canada - because suddenly employer's would be on the hook. They have political clout that TFWs do not.

Just a half-baked idea at this point.

 

[computergeek]

I had a similar experience back in 2008. The company I was working for closed the facility and I was Laid off. I was initially given the same reason for EI denial but I consulted the appeals cases on the Service Canada website. There were several similar cases which had been overturned on appeal. The reason given was that the person was not "unavailable for work", they could look for work and accept an new position but simply had to satisfy the necessary requirements to obtain a new LMO and TWP and start work.

I contacted Service Canada and used this argument and cited the cases on their own site. They reversed the decision on the following day.

I would assume it is the same today unless the rules have changed dramatically.

That's excellent advice. Apparently CanLii does not index Service Canada decisions.

I was thinking that an LMO and/or TWP would be administrative pre-requisites, much like getting a new certification or a medical examination. I like the theory of this: you are available to work, but there is some paperwork required by the government that must be completed prior to you starting work. This is just a normal part of the process.

Here's the search engine that I just found for Service Canada: http://www.ei.gc.ca/eng/library/search.shtml

 

[computergeek]

This is an interesting search.

http://www.ei.gc.ca/eng/board/favourable_jurisprudence/availability_for_work.shtml#work_permit

This is a listing of specific cases favourable to the worker. In this specific subset of cases they are for foreign workers on a work permit who lost their job.

Here's an excellent bit of decision making in one of the decisions on this page:

A question arises as to the interpretation and application of section 18. In my view, that section applies to circumstance of unavailability created by a claimant by his absence or by engaging in an activity of his own choosing preventing him from satisfying the onus of proving availability. It is not intended to apply where unavailability is imposed upon a claimant in circumstances beyond his control when the claimant is ready, available and willing to accept employment. That claimant in this case finds himself having to pay insurance premiums pursuant to the provisions of one federal statute and then being informed that he is not entitled to benefits because of a restriction imposed pursuant to another federal statute."

This is exactly my point: not reasonable to withhold EI and then tell you that you cannot collect its benefits.

Citing these cases (and having copies of them for the appeal) would be very powerful indeed - after all, that's the entire point of a precedent based system, to use earlier decisions to guide current decisions.

 

[arisudu]

I contacted Service Canada and used this argument and cited the cases on their own site. They reversed the decision on the following day.

Hi JGK,

This is useful info. Do you have the Service Canada url which you've mentioned to Service Canada? I can refer them to the same info as well.

Thanks.

 

[JGK]

Sorry,

It was a while ago (over 4 years now) and all it took was two or three phone calls. They called me denying my EI claim, I found applicable cases and called service Canada citing two or three which were similar to my situation. They called back the next day to say they we reinstating my EI.

Use the search engine in the previous posts, I think that is the one I used.

PS I was in Ontario when this situation arose.

 

[arisudu]

I appealed the EI decision and got my appeal approved. Now I'm working for new company with a new work permit and LMO.

I did appeal late explaining that I was not ready to appeal within 30 days. I got a call from EI and told me they will process my claim.

Here are the cases I've mentioned : http://www.ei.gc.ca/eng/board/favourable_jurisprudence/availability_for_work.shtml

http://www.ei.gc.ca/eng/board/favourable_jurisprudence/availability_for_work.shtml#work_permit

Here is the detail for appeal procedure - http://www.ei.gc.ca/eng/referees.shtml#file

 

[Cruiser55]

I have this urgent issue that I need your help with.

I am on a closed work permit until September 2014, I was laid off from work in March 2013 and I only applied for EI in June 2013, as my employer misinformed me that I can only apply for my EI after I receive my ROE (Record Of Employment) and since my discussions with regards to my lay off lasted a few months I was not given the ROE.

Anyways, I applied for EI in June 2013 and yesterday (July 18,2013), I was sent a letter stating that my EI has been REFUSED and the reason mentioned on this letter was "We are unable to pay you Employment Insurance benefits. Your employment authorization restricts you to working only for "my company's name" while in Canada. Because you are not allowed to work for any other employer, you are not considered available for work."

Now, I am in a severe dilemma as I can't find an employment because of the LMO issue and also, even though I have paid religiously into the EI system and all my hours of work are in perfect order, they have refused me of this benefit, when I desperately need this money.

Now, I have my rent to pay, the car insurance, i am so stressed that I don't know what to do. I was really looking forward to this money.

They have mentioned in the letter that i can appeal this decision within 30 days.

I need your help on what I should do. I am extremely stressed and cannot think right.
I spoke to a few EI agents on the phone, but they were very rude and dismissed me right away, they did not even empathize with me or my situation.

Is there anyone of you who was in my situation and yet got their EI in the last few months?

Please help.

 

[Cruiser55]

I appealed the EI decision and got my appeal approved. Now I'm working for new company with a new work permit and LMO.

I did appeal late explaining that I was not ready to appeal within 30 days. I got a call from EI and told me they will process my claim.

Here are the cases I've mentioned : http://www.ei.gc.ca/eng/board/favourable_jurisprudence/availability_for_work.shtml

http://www.ei.gc.ca/eng/board/favourable_jurisprudence/availability_for_work.shtml#work_permit

Here is the detail for appeal procedure - http://www.ei.gc.ca/eng/referees.shtml#file

Hi Arisudu,
Please let me know how you did this. i am in the same situation like you and i need you help, what did you did in the appeal and how did you use the links?