Digest of Benefit Entitlement Principles - Chapter 11

11.6.0    SICKNESS BENEFITS WITH RESPECT TO OTHER PROVISIONS
              OF THE ACT

11.6.1     Being Unemployed
11.6.2     Being an Inmate in any Prison or Similar Institution
11.6.3     Stay Outside Canada

11.6.0    SICKNESS BENEFITS WITH RESPECT TO OTHER PROVISIONS OF THE ACT

The fact that a person meets the conditions of entitlement to sickness benefits does not automatically nullify all other provisions of the Act. There are situations that will reduce or prevent the payment of benefits while the claimant is unable to work¹. An example of this is where a person has an allocation of earnings² during the period of incapacity.

A stoppage of work attributable to a labour dispute may affect the entitlement to sickness benefits, depending on whether a person is already on sick leave when the stoppage of work occurs³ or the inability arises during the stoppage of work. The disentitlement in the latter case may, under certain conditions, be suspended during any period in which the person proves that he or she is otherwise entitled to benefit⁴.

A teacher who is unable to work during the non-teaching period is nevertheless bound by the additional conditions defined in the Regulations that limit the payment of benefits, including sickness benefits, during that period⁵.

Other situations that require a special approach merit discussion in separate sections: amongst others, they are, being unemployed, being an inmate in any prison or similar institution, and a stay outside Canada. These subjects are covered in the sections that follow.

The legislation also provides for suspending⁶ or deferring⁷ a disqualification where the person is otherwise entitled to special benefits, which include sickness benefits.

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1. EIA 6(1) for the provisions under which a person might be "disentitled";
2. see from 5.11.0, "Compensation for Incapacity" to 5.11.8, "Payments for Injuries from Other Sources";
3. see 8.5.7 "On Leave At Time of Stoppage of Work";
4. 36(3)(a); see 8.10.0, "Suspension of the Disentitlement"; see 8.10.4, "Period Suspended";
5. EIR 33;
6. EIA 30(4);
7. EIA 28(5).

11.6.1    Being Unemployed

Where an insured person who qualifies makes an initial claim for benefit, the Act says the following¹:

a benefit period shall be established and, once it is established, benefits are payable to the person . . . for each week of unemployment that falls in the benefit period.

The payment of benefits, therefore, can only be considered in respect of a week of unemployment², that is, a week in which a claimant does not work a full working week.

It does not necessarily follow that a week during which a person is incapable of work inevitably constitutes a week of unemployment. For example³:

A week during which a claimant's contract of service continues and in respect of which the claimant receives or will receive their usual remuneration for a full working week is not a week of unemployment, even though the claimant may be excused from performing their normal duties or does not have any duties to perform at that time.

There are in fact several situations that might arise in which, even if he or she is incapable of work during a certain period, a person who is either employed⁴ or self-employed⁵ is nevertheless deemed to have worked a full week during one or more weeks during the period in question. As a result, no benefit is payable to him or her in respect of such weeks.

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1. EIA 9;
2. EIA 11; see 4.1.2, "Week Of Unemployment Defined";
3. EIA 11(2);
4. EIR 31; see 4.1.2, "Week Of Unemployment Defined";
5. EIR 30.

11.6.2    Being an Inmate in any Prison or Similar Institution

It is irrelevant whether a person is able or unable to work in the situation described in the following provision¹:

Except as may otherwise be prescribed, a claimant is not entitled to receive benefits for any period during which the claimant

(a) is an inmate of a prison or similar institution;
(b) . . .

The Act does not provide for the payment of either sickness benefits or any other type of benefits² to anyone who is an inmate of such an institution. Whether the inability in question already existed before the detention or occurred when the person was behind bars is irrelevant.

The prescription mentioned in the above extract is stated in the following provision of the Regulations³:

A claimant who is an inmate of a prison or similar institution and who has been granted parole, day parole, temporary absence or a certificate of availability, for the purpose of seeking and accepting employment in the community, is not disentitled from receiving benefits by reason only of section 37 of the Act.

The question is therefore primarily one of availability in the labour market⁴. We are not unfamiliar with this question, as we are well aware that the second entitlement condition for a person who is unable to work is to demonstrate that he or she would be otherwise available for work⁵.

The fact that a person is an inmate in a prison or similar institution will not be used against the claimant's assertion of being available when he or she has been granted parole, day parole or temporary absence for the purpose of seeking and accepting employment. Sickness benefits will not be denied for the sole reason that the temporary absence has been suspended because the inmate is temporarily unable to work.

The Act refers to a claimant who is an inmate of any prison or similar institution. The test to be applied to determine whether another institution can be described as similar to a prison is whether or not the stay in such a place is for detention or punishment purposes. If that is not the case, it cannot be concluded that the institution is similar to a prison.

Thus, a psychiatric institution in which a person charged with a criminal offence had been interned to evaluate his or her fitness to stand trial is not recognized as an institution similar to a prison⁶. The finding would be different if the stay in such an institution is part of a prison sentence⁷.

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1. EIA 37(a);
2. see 1.1.5, "Types Of Benefit";
3. EIR 54;
4. see 10.11.7, "Imprisonment";
5. EIA 18(b); see 11.3.0, "Second Entitlement Condition: To Be Unable To Work";
6. C. Crupi (A-451-85, CUB 10387);
7. C. Crupi (A-451-85, CUB 10387); D. Garland (A-1132-84, CUB 9397); Jurisprudence Index/sickness benefits/imprisonment/.

11.6.3    Stay Outside Canada

It happens from time to time that a person who is temporarily unable to work plans to spend part of his or her convalescence in milder climates outside Canada or, conversely, that a person who is outside Canada suddenly becomes unable to work. Both are entitled to ask whether the situation in question is detrimental to claiming sickness benefits.

It should be said right away that in this respect the Act has imposed rigorous provisions, which were adopted to avoid abuse and misuse of unemployment insurance funds. The Act provides as follows¹:

Except as may otherwise be prescribed, a claimant is not entitled to receive benefits for any period during which the claimant

(a) . . .
(b) is not in Canada.

The prescription mentioned here is found primarily in the following provision of the Regulations²:

. . . a claimant is not disentitled from receiving benefits for the reason that the claimant is outside Canada . . . for the purpose of undergoing, at a hospital, medical clinic or similar facility outside Canada, medical treatment that is not readily or immediately available in the claimant's area of residence in Canada, if the hospital, clinic or facility is accredited to provide the medical treatment by the appropriate governmental authority outside Canada.

Thus, with the exceptions of a person whose most recent interruption of earnings is from insurable employment outside of Canada³ and of a person who is absent for specified reasons and duration⁴, it can be said in general terms that a person must satisfy two specific conditions in addition to the two entitlement conditions to sickness benefits⁵.

The person who is outside Canada must in fact be undergoing medical treatment in a hospital, medical clinic or similar facility located in a country other than Canada, and the treatment as such must be medical treatment that is not readily available in the claimant's area of residence in Canada.

The Act leaves no room for other circumstances that could occur where a person might, for personal reasons or on the recommendation of a physician, have to stay outside the country, even with a medical certificate establishing the inability to work⁶.

The prescription is not limited to a person whose inability to work arose before his or her stay outside Canada. It also applies to a person whose inability to work arose while he or she was outside the country. Both must show that they satisfy the two conditions specified in the Regulations.

The question whether the person proves that he or she would be otherwise available for work is always relevant in such a case⁷.

It must be understood that the person must undergo the treatment in a hospital, medical clinic or similar facility in a country other than Canada, and that it must be a medical treatment that is not readily available in the claimant's area of residence in Canada. It must not be a miracle treatment or any kind of cure that is claimed to be the panacea for all illnesses, but a treatment that, while not necessarily conventional, may be seen as being relatively effective and is recognized by a scientific or medical authority⁸.

There are several factors that might lead someone who is unable to work to undergo medical treatment in a country other than Canada. It might be due to, amongst others: the urgency of the situation as opposed to the immediate availability of the treatment in a Canadian health institution, the proximity of the residence to the treatment centre, the supposed quality of care, or the technological advancements and expertise of certain medical science authorities or clinics renowned for the treatment of certain illnesses or for certain procedures.

What is critical to determine is whether the treatment is a type that is not readily available in the claimant's area of residence in Canada. The agent will make that determination. It is not necessary that the claimant be hospitalised.

A facility outside Canada that offers a treatment prescribed in Canada is considered to be an accredited facility. The agent follows-up only when there is a reason to doubt the accreditation of the facility.

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1. EIA 37(b);
2. EIR 55(1)(a);
3. EIR 55(5);
4. EIR 55(1); see 10_11_8, "Out of Canada";
5. see 11.1.2, "With Respect To Two Entitlement Conditions";
6. Jurisprudence Index/sickness benefits/out of Canada/;
7. see 11.3.0, "Second Entitlement Condition: To Be Otherwise Available For Work";
8. Jurisprudence Index/sickness benefits/treatment not available in Canada/.