Digest of Benefit Entitlement Principles - Chapter 11

11.3.0    SECOND ENTITLEMENT CONDITION: TO BE OTHERWISE AVAILABLE FOR WORK

A person who makes a claim for sickness benefits is not only required to demonstrate being unable to work but also to demonstrate that he or she would be otherwise available for work. The purpose of this particular provision is to limit access to sickness benefits to persons who would be entitled to regular benefits were they not unable to work.

A situation that is the direct result of the claimant's inability to work may not be used to negate the claimant's statement that he or she is available; for example, where specifically because of the inability to work, the person cannot prove that he or she is able to work or cannot immediately accept any offer of suitable employment made during the period of his or her inability to work.

The claimant's availability will be determined in the same way as if the person was able to work. The reason for separation, the claimant's personal situation, his or her intentions, requirements and restrictions in relation to the labour market are all factors that reflect on availability for work during the period of inability to work. The chronology of events may also be very revealing evidence in this connection.

If the inability to work arises when there is already a current disentitlement on the ground of non-availability or a situation that would be grounds for disentitlement, it may be difficult for the person to demonstrate that he or she would be otherwise available for work, as, for example, where the inability arose after the person had limited availability to his or her usual employer during a period of suspension.

It is quite possible that the situation will only arise once the period of inability to work is under way or at the same time as that period. The question then is what would the person have done had he or she not been unable to work. The situation may be one that was expected or planned, that is totally unrelated to the inability, and in respect of which the person could not in normal circumstances prove that he or she is available. An example might be a specific period of holidays that the claimant actually took in spite of his or her inability to work.

Finally, a person may want to take advantage of a period of inability and, instead of doing nothing, signs up for a short-duration training course or spends the period of convalescence at a place away from home, such as the cottage. It cannot be said in such situations, which would not have arisen had it not been for his or her inability to work, that the claimant has not proven that he or she was otherwise available for work. On the other hand, another type of dispute may arise in the case of a stay outside Canada¹.

The situation would be different if, for example, a claimant was to decide to take advantage of a long period of inability to work, to look after preparations for a business, increase the level of activity with the aim of eventually working on his or her own account, or expending a significant part of his or her time and energy on a job that was only secondary before the inability arose. In such a case, whether the person is unemployed, otherwise available for work and unable to hold any other suitable employment will be open to question.

Those who withdraw from the labour market while on sabbatical leave may also be affected by illness, injury or quarantine and make a claim for sickness benefits. Such persons cannot usually prove that they would be otherwise available for work unless that inability to work has delayed their return to the labour market. In this last case, they may show that they would be otherwise available as of the original date set for their return to work.

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1. see 11.6.3, "Stay Outside Canada."