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13. A to Z Services Index

Archived 2003 - Digest of Benefit Entitlement Principles

 

1.1.1    Summary - Archived November 2003

In 1935, the federal authorities established for the first time a social plan that included an unemployment insurance system. The following year, however, the legislation was found to be unconstitutional.

With the approval of the provinces, the federal government eventually obtained the constitutional authority it needed to establish the Unemployment Insurance Act that came into existence in August 1940. Strictly speaking, however, it was only in January 1942 that the Canadian unemployment insurance scheme came into existence and benefits were paid. It was largely patterned on the British Scheme that had its beginnings at the turn of the century.

Many changes have been made to mold the scheme to the Canadian experience, to reflect changes in the labour market, and to take into account both economic and social circumstances. A major overhaul came about in 1971 when the legislation was amended to extend coverage almost universally to workers in the event of not only shortage of work but also sickness and pregnancy.

We cannot forget to mention the Canadian Human Rights Act of 1977 and the assent given to the Canadian Charter of Rights and Freedoms on 17 April 1982, except for Section 15 concerning equality rights which came into force three years later, in 1985. The principles of that Act and the Charter must be respected just as much as those concerning the application of the Employment Insurance Act.

The new Employment Insurance Act brings together in a single statute, under the name "Employment Insurance," provisions for income support and employment assistance for eligible unemployed persons. Income support is provided in a way that reinforces work. Employment assistance helps maintain a sustainable employment insurance system by helping unemployed persons to be productive participants in the labour force.

The change embodied in the employment insurance system in this enactment constitutes a comprehensive modernization of the system. They reform many of the core features of the system, introduce a number of new elements and make a number of technical amendments to improve fairness, administration and compliance. The major changes phase in over an extended period beginning in 1996 ending in 2001.

This enactment also continues the National Employment Service and authorizes the establishment of employment benefits, such as wage subsidies or earnings supplements, in order to help eligible unemployed persons get back to work. These provisions are subject to guidelines of harmonization with provincial programs, reduction of dependence on income support, co-operation and partnership with provincial governments and others.

It commits the federal government to work in concert with the provinces in designing, implementing and evaluating these employment benefits. It provides for arrangements to be negotiated for the administration by provinces of the employment benefits It also provides that the Government of Canada can make financial contributions to similar provincial programs that are consistent with the purposes and guidelines, set out in this enactment. It specifies that assistance for the provision of labour market training in a province would be provided only with the agreement of the provincial government.

There is also a provision for monitoring and assessing how individuals, communities and the economy are adjusting to the changes, including the effectiveness of the employment benefits.

13.3.6    While Attending a Course or Other Employment Activity - Archived November 2003

Parental benefits were specifically designed to allow a parent to be away from work to care for a child and as long as this situation exists parental benefits are payable. An individual claiming parental benefits is not expected to cease all regular activity and may in some cases attend a course of instruction or other employment activity while in receipt of parental benefits. However when the claimant's reason for not working is not, or ceases to be, to care for the child, entitlement to parental benefits is not proven and the claimant may be subject to a disentitlement¹. For example, the claimant who applies for parental benefits while attending a course of instruction may find it difficult to prove their reason for not working is to care for the child. The circumstances of each case must be considered individually.

There are other circumstances under which a claimant following a course of instruction under his/her own initiative, such as a correspondence, part-time or night course may prove entitlement to parental benefits. Again, decide each case on its own merit. However, the probability of a claimant attending a course (referred or under their own initiative) and claiming parental benefits would appear to be minimal.

________________________

1. EIA 23(1); see 13.1.4, "To Care For a Child."

18.5.2    The Penalty–A Monetary Sanction - Archived November 2003

The penalty is a monetary sanction that may in some cases be more effective than prosecution. However a monetary penalty can only be imposed during a very specific period, that is within the thirty-six month¹ period after the date on which the offence was committed. Even though a monetary penalty cannot be imposed after thirty-six months, the time frame for rendering a decision, such as an allocation of earnings, is seventy-two months where it is determined that statements were falsely made.

It is because of the serious nature of such a measure that parameters exist in order to have penalty amounts that are commensurate with the recidivism rate and the seriousness of the offence and in order to ensure a certain degree of uniformity on the national scale. The Act² provides that the Commission may impose a penalty in respect of each false or misleading statement³. Maximum penalty amounts have been set in respect of claimants⁴, employers⁵, those receiving financial assistance under employment measures⁶ and situations of undeclared earnings⁷. To increase its deterrent effect, the Commission progressively increases the amount of the penalty on the basis of the recidivism factor. The calculation of the penalty is different for those claimants who are not required to submit their reporting cards (under Pilot Project No.1) In those cases, a penalty may be imposed for "each week" in the period of participation in this project⁸.

Any offence committed more than once over the last six years whether it arose from a disclosure or resulted in a warning letter, a penalty or prosecution is considered to be recidivism on the part of the claimant, the employer or other party acting on their behalf. This point is especially important when the time comes to fix the amount of the penalty.

In order to consider recidivism, two notions must be present for the intent of this policy:

1) the claimant, employer or person acting on their behalf, must have been subjected to a prosecution, a penalty or a warning letter; and

2) the claimant must have been duly notified in writing that any subsequent discrepancy would be more severely punished. The expression "any subsequent discrepancy" here means any additional offence discovered by the Commission after the person has been notified of the consequences of such non-disclosure, regardless of when the offence was committed.

The fact that an offence has been committed before or after notification is of little importance. The person has two options: either take advantage of the disclosure policy to avoid having a penalty imposed, or take the risk of disclosing nothing in the hope that the Commission will not discover the other offences. The consequences of choosing not to disclose the information may result in more severe penalties. However, as in any case of recidivism, the claimant may contest the notice and its consequence on the determination.

We cannot over emphasize the importance that the insurance officer examine and evaluate carefully the reasons that led to the claimant committing the offence. This is a fundamental exercise that the officer must take on each and every time he or she is called upon to decide on an offence, whether it is the first, second or any subsequent offence.

It is the experience that we have acquired thus far that enables us to evaluate whether extenuating circumstances are present in any offence. Without limiting the possible circumstances that could reduce the amount of the penalty or even result in no penalty at all, these could include lack of education, language difficulties, misunderstanding of the legislative provisions, a claimant under emotional or financial stress due to personal health problems or family illness, etc.

Agents must not consider only the above-noted extenuating circumstances, but in fact take into account all the circumstances that, in their view, may have influenced the actions of the person who is guilty of an offence. Agents thus have more flexibility in applying the policy on penalties.

As can be seen, circumstances that may influence the seriousness of an offence are numerous and vary considerably from one person to another. Furthermore, mitigating circumstances are not only considered on first offences and repeat offenders cannot automatically be excluded from consideration of a reduced penalty by reason of mitigating circumstances. In these cases, any such consideration must be weighed against the fact that the claimant had been previously warned.

________________________

1. EIA 40; EIA 65.1;
2. EIA 38;
3. S. Smith A-330-93, CUB 22527;
4. EIA 38(2);
5. EIA 39;
6. EIA 65.1;
7. EIA 19(3);
8. EIR 77; pilot project no. 1.

3.1.1    The Administrative Policy - Archived October 2003

Over the years the Commission's experience has been that a large number of antedate requests involved short delays only, and that the majority of those antedate requests were accepted. In response to this reality the Commission introduced the administrative policy or rule as follows:

An application for benefit made no later than four calendar weeks following the calendar week in which the interruption of earnings occurs is deemed to have been filed in the week of the interruption of earnings and the claim is effective the week of the interruption of earnings.

For a renewal claim this four week time frame begins immediately after the week in which the last day worked occurs. For a claim for fishing benefits this four week time frame begins immediately after the week in which the last delivery was made.

Under the administrative policy the Commission considers any application within this four week period to have been filed in the week of the interruption of earnings or in the last week worked. The effective date of the claim or renewal week is determined accordingly. Beyond this four week period, the administrative policy does not apply. A claimant who files in the fifth week or beyond must prove good cause for the full period, i.e., for the full 5 weeks.

The intent of the administrative policy is to facilitate the handling of potential antedate requests for a short time period as claimants need not request an antedate when the application is filed within this four week period. Of course this administrative policy is applicable only when it is to the claimant's advantage.

3.2.0    Required Conditions For Antedate - Archived October 2003

An antedate may be allowed for an initial claim when the claimant is able to prove that he/she qualified to receive benefit on the earlier day and had good cause for the delay throughout the entire period of the delay¹. The claimant must be able to establish a claim for benefits at the earlier date otherwise there can be no consideration given to antedate². Failing that, if the qualifying conditions are met on a date subsequent to that for which the antedate was requested, the antedate can be considered as of that subsequent date.

In all other claims for benefit the claimant need only show good cause for the delay throughout the entire period for the antedate to be accepted³.

17.3.2    Applying Section 52 - Archived October 2003

It is Commission policy to reconsider¹ a claim when one of the following situations is applicable.

1) Underpayment of benefits: the agent receives new information or reviews existing information in a new light and rescinds his/her original decision. Reconsideration applies, the original decision is corrected retroactively, and the underpayment issued.
2) Contrary to the structure of the Act: this relates to those provisions that constitute the very basic requirements that need absolutely to be in place in order to receive benefits. This would include (but is not limited to), situations where the employment is not insurable or there are not enough insurable hours to qualify, or where specific conditions are not met for special benefits, or for extensions of the benefit or qualifying period, or where the benefit rate is not in accordance with the specific calculation stipulated in the Act. Errors of this nature are corrected retroactively regardless of where responsibility for the error lies.
3) Benefits paid in error and claimant failed to come forward: this would occur in instances such as (but not limited to) the claimant reporting earnings, outside of Canada, or being an inmate of a jail or similar institution but still receiving benefit. While errors of this nature could be defined as Commission errors, the claimant does have a duty and obligation in such situations because he or she ought to have known that benefits should not have been paid.
4) False or misleading statement/misrepresentation attributable to the claimant: when the agent realizes that benefit was issued on the basis of a false or misleading statement or misrepresentation made by the claimant, or by a representative on behalf of the claimant, reconsideration takes place, and an overpayment is created. As a general principle the courts have said that no one should profit from their own false or misleading statement or misrepresentation.

Investigation and Control is included in this section to make the point that Investigation and Control interventions, including post-audits, as determined by the Agent, are reconsidered².

It is important to note that an employer penalty imposed for a false statement or misrepresentation³ cannot be reconsidered⁴, as it does not relate to a claim for benefit. The employers' recourse lies in the appeal process⁵.

________________________

1. EIA 52;
2. EIA 52;
3. EIA 39(1); EIA 39(2);
4. under EIA 52;
5. EIA 120.

18.5.4    Prosecution - Archived October 2003

Prosecution is of course the severest and the greatest deterrent of abuse and fraud. However, just as with penalties, there are legislated time limits. A prosecution may be commenced at any time within five years from the time the offence was committed¹.

By definition, the laying of charges constitutes the first stage of a prosecution and, for the purposes of the penalty provisions, is considered a prosecution initiated against the claimant. Consequently, if this process is initiated and later withdrawn, an administrative penalty cannot be imposed².

However, where the option of prosecution is withdrawn or rejected by Investigation and Control before the laying of charges, the Commission may consider the possibility of imposing a penalty. The reason for not prosecuting will be recorded on the file by the investigation officer.

For certain offenses³ prosecution is the only possible sanction and no penalty may be imposed for a false or misleading statement after a prosecution has been initiated in respect of that offence⁴. The same is true of a prosecution if a penalty has already been imposed for the same offence⁵. The responsibility for deciding whether or not to prosecute rests with the Investigation and Control Branch⁶.

________________________

1. EIA 125(4);
2. EIA 40;
3. EIA 135;
4. EIA 40;
5. EIA 135;
6. see Investigation and Control Manual (C-3-4).

5.5.2.1    Approved Supplemental Unemployment Benefit Plans - Archived September 2003

Payments may be made to an employee to supplement EI benefits during periods of unemployment due to a temporary stoppage of work, training, illness, injury or quarantine.¹ Payments made by an employer to supplement EI benefits are excluded from consideration as earnings if they are made under a Supplementary Unemployment Benefit (SUB) Plan which meets specific conditions.²

The SUB plans are reviewed at the national level to determine if all required conditions are met and a list of the SUB plans that meet the conditions is maintained. Any payment made under a SUB plan that does not meet all of the conditions is treated as earnings and is allocated to the period for which it is payable, depending on whether it is paid for a period of incapacity³ or for one of the other reasons⁴.

________________________

1. if the payment is made by reason of pregnancy or for the care of a child, see 5.5.2.2;
2. EIR 37;
3. EIR 36(12)(a); see 5.11.7, "Supplemental Unemployment Benefit Plans for Incapacity–Criteria Not Met";
4. EIR 36(5); see 5.7.2.4, "Supplemental Unemployment Benefits Plan–Criteria Not Met."

5.5.2.2    Payments by Reason of Pregnancy or for the Care of a Child - Archived September 2003

Payments may be made by an employer during a period of leave for maternity or child care. In order for these payments to be excluded from consideration as earnings, they must meet the following conditions:

• the payments must be made by reason of pregnancy, or for the care of a child or children referred to in subsection 23(1) of the Act, or any combination of these reasons;
• when combined with the claimant's weekly rate of employment insurance benefits, the payment does not exceed the claimant's normal weekly earnings from his or her employment; and
• the payment does not reduce the claimant's accumulated sick leave, vacation leave, severance pay or any other accumulated credits from his or her employment.¹

Any payment made under a plan that does not meet all of these conditions is treated as earnings and is allocated to the weeks in respect of which the payments are paid or payable.²

________________________

1. EIR 38;
2. EIR 36(12).

5.7.2.2    Maternity, Adoption or Care of a Child Leave - Archived September 2003

 

Regulation 35(2)	Payments that a claimant has received or, on application, is entitled to receive are earnings if made under:  a paid maternity or adoption leave plan, or a leave plan for the care of a child referred to in subsection 23(1) of the Act.
Regulation 36(12)(a)	Payments in respect of maternity or adoption or leave to care for a child referred to in subsection 23(1) of the EI Act are allocated to the weeks in respect of which the payments are paid or payable.
Regulation 38	The portion of any payments made by reason of pregnancy or for the care of a child or any combination is not earnings for the purposes referred to in subsection (2) if:  when combined with the claimant's weekly rate of employment insurance benefits, the payment does not exceed the claimant's normal weekly earnings from his or her employment; and the payment does not reduce the claimant's accumulated sick leave, vacation leave, severance pay or any other accumulated credits from his or her employment.

When a claimant receives, or is entitled to receive, wages or salary under a plan for maternity, adoption or care-of-a-child leave, these moneys are earnings arising out of employment. It is not necessary that such moneys actually are paid, it suffices that they could be paid upon the claimant's request. The leave payments are allocated to the weeks for which they are paid or payable.¹

However, payments for maternity, adoption or care-of-a-child leave are specifically excluded from consideration as earnings if they meet specific criteria. It is not earnings if the payment, when combined with the claimant's weekly rate of benefit, does not exceed the claimant's normal weekly earnings from employment and does not reduce the claimant's accumulated sick leave, vacation leave, severance pay or any other accumulated credits from employment.² In addition, payments for maternity, adoption or care of a child leave made under an approved Supplemental Unemployment Benefit (SUB) Plan are excluded from consideration of earnings.³

Maternity, adoption or childcare payments that do not meet the criteria to be specifically excluded as earnings are not considered earnings during the waiting period.⁴

Payments received as an encouragement to return to work following maternity or care-of-a-child leave are also earnings. When the payment is in consideration of the claimant’s return to work for a specific period, the earnings are allocated to the required specific period which follows the claimant’s return to work and not to the period of leave.⁵ A person may return to work following a period of leave for maternity, adoption or the care of a child and receive compensation intended to cover the two-week waiting period. In this case, the leave pay is allocated to the two-week waiting period⁶ where these moneys are not to be taken into account as earnings⁷.

________________________

1. EIR 35(2)(c) and EIR 36(12);
2. EIR 38; see 5.5.2.2, "Payments by Reason of Pregnancy or for the Care of Children";
3. see 5.5.2.2, "Payments by Reason of Pregnancy or for the Care of Children";
4. EIR 39(3);
5. EIR 36(5);
6. EIR 36(12)(a);
7. EIR 39(3)(b).

5.11.7    Supplemental Unemployment Benefit Plans for Incapacity–Criteria Not Met - Archived September 2003

Employers may supplement their employees' EI benefits during a period of unemployment due to illness, injury or quarantine. These supplemental payments make up the difference between the claimant's EI benefit and the employee's normal wages while employed.

As these payments are moneys arising out of employment, they would be earnings to be deducted from EI benefits. However, payments made by an employer to supplement EI benefits are excluded from consideration as earnings if they are made under a Supplementary Unemployment Benefit (SUB) Plan which meets specific conditions.¹

SUB plans are reviewed at the national level to determine if all required conditions are met and a list of the SUB plans that meet the conditions is maintained. Any payment made under a SUB plan that does not meet all of the conditions is treated as earnings² and is allocated to the period for which it is payable, that is the period of incapacity³.

________________________

1. EIR 37;
2. EIR 35(2);
3. EIR 36(12)(a).

10.10.8    Expiry of Work Permit - Archived September 2003

Persons not permitted under Canadian law to accept work in Canada cannot demonstrate availability. This is all the more clear if they must leave a job because their work permit has been cancelled or not renewed or if the work permit allows them to work for a specific employer and no work is available with that employer¹.

It is of no assistance to such claimants to argue that they will seek work anyway and that they have no intention of refusing any job opportunity that arises.

In the same way, claimants do not demonstrate availability if they move to another province where they are not licensed to work in their occupation. It is incumbent upon them to make themselves available in another occupation affording them a reasonable chance of obtaining employment.

_________________________

1. Jurisprudence Index/availability for work/restrictions/work permit limitations in Canada/.

1.1.1    Summary - Archived July 2003

In 1935, the federal authorities established for the first time a social plan that included an unemployment insurance system. The following year, however, the legislation was found to be unconstitutional.

With the approval of the provinces, the federal government eventually obtained the constitutional authority it needed to establish the Unemployment Insurance Act that came into existence in August 1940. Strictly speaking, however, it was only in January 1942 that the Canadian unemployment insurance scheme came into existence and benefits were paid. It was largely patterned on the British Scheme that had its beginnings at the turn of the century.

Many changes have been made to mold the scheme to the Canadian experience, to reflect changes in the labour market, and to take into account both economic and social circumstances. A major overhaul came about in 1971 when the legislation was amended to extend coverage almost universally to workers in the event of not only shortage of work but also sickness and pregnancy.

We cannot forget to mention the Canadian Human Rights Act of 1977 and the assent given to the Canadian Charter of Rights and Freedoms on 17 April 1982, except for Section 15 concerning equality rights which came into force three years later, in 1985. The principles of that Act and the Charter must be respected just as much as those concerning the application of the Employment Insurance Act.

The new Employment Insurance Act brings together in a single statute, under the name "Employment Insurance," provisions for income support and employment assistance for eligible unemployed persons. Income support is provided in a way that reinforces work. Employment assistance helps maintain a sustainable employment insurance system by helping unemployed persons to be productive participants in the labour force.

The change embodied in the employment insurance system in this enactment constitutes a comprehensive modernization of the system. They reform many of the core features of the system, introduce a number of new elements and make a number of technical amendments to improve fairness, administration and compliance. The major changes phase in over an extended period beginning in 1996 ending in 2001.

This enactment also continues the National Employment Service and authorizes the establishment of employment benefits, such as wage subsidies or earnings supplements, in order to help eligible unemployed persons get back to work. These provisions are subject to guidelines of harmonization with provincial programs, reduction of dependence on income support, co-operation and partnership with provincial governments and others.

It commits the federal government to work in concert with the provinces in designing, implementing and evaluating these employment benefits. It provides for arrangements to be negotiated for the administration by provinces of the employment benefits It also provides that the Government of Canada can make financial contributions to similar provincial programs that are consistent with the purposes and guidelines, set out in this enactment. It specifies that assistance for the provision of labour market training in a province would be provided only with the agreement of the provincial government.

There is also a provision for monitoring and assessing how individuals, communities and the economy are adjusting to the changes, including the effectiveness of the employment benefits.

1.8.1    Application - Archived July 2003

A claimant is not entitled to be paid benefit in a benefit period until a two-week waiting period has been served¹.

There are exceptions to the above rule. The waiting period is sometimes waived under certain circumstances when a claimant is paid sick leave pay from an employer following the last day worked². In the case where a claimant becomes employed in work sharing employment, the waiting period, or any unserved portion, is deferred³.

________________________

1. EIA 13; Jurisprudence Index/basic concepts/waiting period/;
2. EIR 40(6);
3. EIR 46;

2.3.4    Guaranteed Income - Archived July 2003

A claimant's contract of employment may provide for the payment of the usual remuneration for a period beyond a week, independent of the amount of work completed during that period. No matter how or when the remuneration is paid there is no interruption of earnings during this period¹. An example of this are stevedores, who are guaranteed an income equivalent to forty weeks of work during the year.

The same principle applies in the case of a claimant who has an agreement with the employer to embark upon a self-funded leave program. For example, the claimant works and defers a portion of his or her salary for four years in order to finance and be on leave for the fifth year. The claimant does not have an interruption of earnings during the self-financed leave period. Unless the agreement concerning the self-funded leave is broken, for example, by the claimant who definitively terminates this employment; the claimant, in principle, cannot establish a benefit period during such a leave period. This is so, regardless of the type of benefits that are claimed.

A claimant could establish a benefit period because of an earlier interruption of earnings from this employment before the self-funded leave, or from other employment obtained during the leave. In such a case, the issues to be examined are whether the claimant is unemployed² and the determination of earnings.

________________________

1. EIR 14(4);
2. EIA 11(3).

12.1.3    Waiting Period - Archived July 2003

Like all claims for unemployment benefits a waiting period must be served¹ before maternity benefits can be paid. However, the waiting period may be waived if, after having ceased work, the claimant has received sick leave paid by her employer².

________________________

1. EIA 13;
2. EIR 40(6).

13.1.3    Waiting Period -  Archived July 2003

As already indicated¹ parental benefits are unique in that they may be paid to either of the natural or adoptive parents or may be shared between the parents. Like all claims for unemployment benefits a waiting period must be served² before parental benefits can be paid. However, the waiting period may be waived if, after having ceased work, the claimant has received sick leave paid by the employer³. Additionally moneys payable by an employer as parental leave pay are not considered to be earnings in the waiting period⁴.

Because a claimant serves only one waiting period during the life of the claim, maternity benefits can be converted to parental benefits without interruption, provided the conversion takes place within the same benefit period. Should a new benefit period be required so that all or a portion of parental benefits can be paid, a waiting period must be served on the new claim.

When the parents decide to divide the parental benefits between them, a waiting period must be served on both their claims. As well, when the father files for parental benefits, he must serve a waiting period before parental benefits can be paid regardless of whether or not the mother of the child received maternity benefits.

________________________

1. see 13.1.2, "Who Can Receive Parental Benefits";
2. EIA 13;
3. EIR 40(6);
4. EIR 39(3)(b).

1.2.7    Attachment to the Labour Force–Prescribed Hours - Archived June 2003

In calculating the number of hours during which a person was a member of the labour force, account is taken of any hours of insurable employment, any hours for which benefits have been paid or were payable (calculated on the basis of 35 hours per week for each week of benefits paid), as well as any hours prescribed by regulation that "relates to employment in the labour force"¹.

The above quoted expression is not defined². Its meaning may be construed using the ejusdem generis rule. According to that rule an expression is defined by reference to those preceding it and by assuming that they all refer to similar situations.

Thus, an hour "that relates to employment in the labour force" is one that is related to a situation arising out of insurable employment or a situation which has precluded the payment of benefit. In fact, it seems reasonable to conclude that the "labour force" here refers to that contemplated by the legislation in general, i.e. insurable employment that enables claimants to qualify for benefits³.

Therefore, for an hour to be considered, it should relate to employment. There are some exceptions to this, as indicated in the Regulations⁴. The following list can be counted as hours attached to the labour force:

1. any hours of insurable employment⁵, including fishing;
2. any week served as part of the waiting period⁶;
3. week of disqualification⁷;
4. any week for which benefits were paid or are deemed to have been paid⁸; benefits here refer to those paid under the Canadian legislation, so that benefits received from another country are to be ignored for this purpose;
5. any week during a benefit period for which EI benefits could have been paid had the earnings to be allocated not been so high⁹, whether or not these earnings arose from insurable employment;
6. any week during which the claimant did not work but nevertheless had earnings that prevented an interruption of earnings, whether or not the claimant had made a claim at the time. For instance, compensatory time off, deferred salary plans and "lay days"¹⁰;
7. any week during which the claimant was attending a course or program following referral by the Commission or an authority designated by Commission¹¹;
8. any week during which the claimant was employed under the self-employment program or job creation program¹²;
9. any week of unemployment resulting from a stoppage of work within the meaning of the legislative provision on labour disputes¹³;
10. any week for which workers' compensation payments for an illness or injury, other than a permanent settlement, have been or will be made¹⁴ provided that such compensation relates to the loss of insurable employment or at least that it has precluded the payment of EI benefits¹⁵;
11. any week, where by reason of incapacity, pregnancy, or for the care of one or more new-born infant or one or more children placed for the purposes of adoption¹⁶, a wage-loss insurance payment has been made or will be made¹⁷, provided that the indemnity relates to the loss of insurable employment or at least that it has precluded the payment of EI benefits¹⁸;
12. any week, where payments have been or will be made due to the preventative withdrawal of work¹⁹, and provided that the indemnity relates to the loss of insurable employment or at least has precluded the payment of EI benefits²⁰;
13. any weeks of income support under TAGS, other than support for early retirement for self-employed and other fishers and plant workers. (This only applies to claims established on or after July 6, 1997 and prior to August 30, 1998.)

Any employment prior to January 1, 1997, as well as any of the conditions listed above, are converted from weeks to hours by multiplying the number of weeks by 35²¹.

The total number of hours counted as labour force attachment can be a combination of the above-mentioned situations²². However, if the claimant has more than one situation in any one week, the claimant is credited with the situation that has highest number of hours in that week (i.e.: no "doubling up" of the situations). For example, the claimant worked 36 hours in insurable employment, received one day of temporary total Workers’ Compensation Benefits (WCB) and received a partial week of EI benefits all in one week. The claimant would only be credited with 36 hours labour force attachment due to the insurable employment, as this is the greater amount of hours (the WCB and EI benefits would only equal 35 hours based upon the conversion factor²³).

________________________

1. EIA 7(4); EIR 12(1); Jurisprudence Index/basic concepts/new entrant or re-entrant/;
2. EIA 25(1);
3. Jurisprudence Index/basic concepts/new entrant or re-entrant/;
4. see (j), (k), and (l) above as well as EIA 7(4)(c), limiting the legislative text;
5. EIA 7(4)(a);
6. EIA 13; EIR 12(1)(b)(iv);
7. EIR 12(1)(b)(v);
8. EIA 7(4)(b); see 1.9.6, "Benefit Paid Defined";
9. EIR 12(1)(a)(iv); EIR 36;
10. EIR 12(1)(b)(iii); EIA 11(3); EIA 11(4); interruption of earnings; EIR 14(1), EIR 14(3), EIR 14(6);
11. EIR 12(1)(b)(i);
12. EIR 12(1)(b)(ii);
13. EIR 12(1)(c); see 8.4.1, "Stoppage of Work Defined";
14. EIR 12(1)(a)(i);
15. EIA 7(4)(c); due to the expression "relate to an employment in the labour force";
16. EIA 23(1);
17. EIR 12(1)(a)(ii);
18. EIA 7(4)(c);
19. EIR 12(1)(a)(iii);
20. EIA 7(4)(c);
21. EIA 7(4); EIR 94.1; EIR 12(1);
22. EIA 7(4)(d);
23. EIR 12(1).

1.6.6    Part-time Employment - Archived June 2003

As in the case of full-time employment, voluntarily leaving part-time employment¹ or losing it by reason of misconduct² may result in an indefinite disqualification.

For the claimant who refuses part-time work³, the question to ask is whether the benefit period was established on the basis of full-time or part-time employment. Thus, the refusal to accept part-time employment could result in a maximum disqualification of twelve weeks in the case of a claimant who had a history of working on a part-time basis, and in another case, the disqualification would be less, that is, seven or more, based on the calculation described earlier.

In the same way, the claimant, whose benefit period was established on the basis of full-time employment and who, while receiving benefits, accepts a part-time employment which is voluntarily terminated without just cause or lost due to misconduct, will be disqualified. The disqualification will be proportionately reduced by the number of days lost in each week⁴ to the minimum of seven weeks⁵.

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1. see Chapter 6, "Voluntarily Leaving Employment with Just Cause";
2. see Chapter 7, "Misconduct";
3. Jurisprudence Index/refusal of work/wages or salary/;
4. Jurisprudence Index/basic concepts/disqualification/length/; Jurisprudence Index/ misconduct/absences from work/;
5. EIA 30(2).

5.6.1.2    Payable - Archived June 2003

According to normal usage and by law, the term payable means justly due and legally enforceable. A sum of money is said to be payable when an individual is under an obligation to pay it. This obligation to pay can be immediately due or due at some time in the future¹.

Earnings are payable when the claimant is in the position at law to enforce payment². Earnings are payable for EI purposes only when the obligation to pay is immediate and not when the obligation to pay is some time in the future. As a result, earnings are only considered payable when the claimant can access them, that is, when the right to receive the earnings is immediate. Any other approach may cause hardship to the claimant, as earnings would be allocated that the employer has not yet paid, or may not pay for some time.

The fact that employees have acquired the right to some moneys does not mean they are immediately due. The obligation for the employer to pay these moneys may only become due at some time in the future and the person is only able to enforce payment at that time. For example, vacation pay is not immediately due after each hour of work. It is usually due at some time in the future, for example, during a vacation period; at an anniversary date; or at an entitlement date when the employee may then request the payment, according to the provisions of the contract of employment.

When employees are entitled to moneys on termination, they may have the right to choose the method or time of payment, that is, one cheque at the time of separation, one cheque in the calendar year following separation, or several cheques over a period that may extend several years. The choice of the method or time of payment governs the moment when the employer is obligated to pay and the claimant is in the position to enforce payment. Only at that time are the earnings considered payable.

In addition, an amount is not considered payable when the amount and condition of payment are in dispute and the cheque is refused or returned. In that case, the amount is not immediately due but rather is payable some time in the future, when the agreement between the parties is reached as it is only then that the person is in the position to enforce payment. Likewise, an amount is not considered payable when the employer has filed for bankruptcy and it is not expected that a payment will be issued³. If the payment is later made by the employer, trustee or from a governmental Wage Earner Protection fund, it must be allocated according to the type of earnings and the reason for the payment.

Whenever the entitlement date and the employer's obligation to pay coincide, the moneys are payable on that date. In the case of vacation pay which is paid on an anniversary date, the entitlement date, that is, when the employee can access the vacation pay, and the employer's obligation to pay, occur on the same date. The vacation pay is therefore payable on that anniversary date. However, where there is first an entitlement date plus an additional condition, such as the requirement for employees to request the payment of vacation pay, earnings are not payable until the additional condition has been met. The employee is not in the position at law to enforce payment until he or she makes a request for the vacation pay. The same would be true where an employer requires employees to return to work before becoming entitled to payment⁴.

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1. Black's Law Dictionary, Sixth Edition;
2. E. Yannelis A-496-94, CUB 25143; R. Legge A-71-95, CUB 26456;
3. see 4.5.3, "Bankruptcy"; CUB 14675; CUB 23446;
4. A Yu A-258-79, CUB 5512.

5.12.2.1  Expenses, Costs, and Allowances Paid or Payable by Reason of a Lay-off or Separation - Archived June 2003

When employment ceases, an employer may make payments in addition to pay in lieu of notice or severance pay.¹ These additional payments may be called expenses, costs or allowances, for example, moving expenses, moving costs, or moving allowances. Although claimants and employers may use the terms allowances, expenses and costs interchangeably, an allowance differs slightly from a straight reimbursement of an actual expense or cost. An allowance is a set amount that is designed to reimburse an anticipated expense or cost associated with employment, or a set amount intended to mitigate the loss of employment.² Nevertheless, the same general principles apply whether the expenses are paid during employment or on termination.

The payment of job-related allowances and the reimbursement of job-related expenses and costs are excluded as income when the moneys do not represent a gain or a benefit. On termination of employment, the definition of job-related expenses is expanded to include payments related to the loss of employment. Relocation costs associated with a move to another community, or tuition and text book costs associated with retraining, as well as other moneys specifically paid to reimburse actual expenses related to job loss and re-employment, are intended to mitigate the employment loss and are not income.

Moneys provided as a living allowance while attending a course, cannot be treated in the same way as those provided to cover the direct, specific and actual costs or expenses associated with the termination, such as tuition fees or books, which are associated with the taking of a course. A living allowance is more like a wage or income replacement or income support allowance, and is intended to permit the individual to survive while attending the course. As such, a living allowance paid by an employer is considered earnings paid by reason of a lay-off or separation.³

The claimant cannot claim an expense for which money was not provided by the employer expressly for that purpose. For instance, a decision to move to another location or to go to school does not entitle the claimant to claim the expense of the move or the cost of the tuition and books if the employer did not expressly intend to reimburse the claimant for these costs. The exception to this rule would be any expenses directly incurred to obtain the termination moneys, such as legal fees, court costs and other legitimate expenses directly related to the legal action.⁴

The best way for the claimant to prove that moneys are intended to compensate for an expense is to show that the employer either pays a third party directly for the expense, such as paying a moving company or university, or only reimburses the claimant the actual amount of the cost or expense when bona fide receipts are presented. The employer's statement to this effect is generally sufficient and receipts are not required.

When the employer gives the employee a lump sum that is specifically intended to reimburse an expense or cost, the claimant must demonstrate that the cost or expense actually occurred by providing receipts. An exception to providing receipts would be for a relocation. Receipts are not required when the move, which the employer intended to compensate, actually occurred and the allowance paid by the employer is reasonable under the circumstances. Even when the claimant is able to save by reducing the expense or cost, the payment is not considered income. For example, the employer may calculate a moving allowance based on hiring a moving company, but the employee may rent a truck to move, and pocket the difference. As long as the employer based the payment on a reasonable estimate of the expense or cost, the difference is not considered to be a gain or a benefit. However, in the situation where the claimant moves to a closer location than that which the employer intended to reimburse, only the actual cost of the move can be considered; the balance is considered income. If the claimant does not move at all, then a benefit has accrued to the claimant because there was no expenditure. The entire amount would therefore be considered earnings paid or payable by reason of the lay-off or separation and allocated.⁵

If the amount paid by the employer appears excessive in relation to the intended expense, or there is reason to doubt the validity of the payment, receipts would be required as proof of the expenditure. Excessive means exceeding the usual, proper, or normal and implies an amount too great to be reasonable or acceptable. When receipts are required and the compensation exceeds the receipts, the balance would be considered income and allocated. Likewise, when the expenditure did not actually occur, the Commission may conclude from the evidence that the money was intended to compensate for the loss of wages and would allocate the entire amount as earnings.⁶

When the amount of the expense or cost incurred exceeds the amount that was given in the agreement for a specific purpose, only that portion of a termination payment which was specifically intended to reimburse that expense or cost can be excluded as income. In other words, the costs that exceed the amount given by the employer for this specific purpose cannot be claimed to reduce other moneys that are earnings, such as severance pay and vacation pay.

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1. proper notice or pay in lieu of notice is a legislated requirement in all provinces and generally other payments cannot be substituted;
2. see 5.3.2, "The Entire Income"; see 5.3.3.1, "Expenses and Considerations Specifically Compensated by an Employer" and see 5.3.3.2, "Expenses and Considerations Not Specifically Compensated by an Employer";
3. living allowances may not be deducted from benefits if the claimant is attending a course to which he or she has been referred by the Commission; EIA 19(4); EIR 16;
4. see 5.12.11.4, "Legal Costs";
5. EIR 36(9); EIR 36(10);
6. J. Dunn A-231-95, CUB 27115; CUB 15507.

5.12.4   Allocation of Earnings Paid or Payable by Reason of a Lay-off or Separation - Archived June 2003

Once moneys are determined to be earnings paid or payable by reason of a lay-off or separation, the allocation always commences from the week of the lay-off or separation, whichever event was the reason for the payment.¹ The allocation is such that the total earnings from that employment are, in each consecutive week except the last, equal to the claimant's normal weekly earnings from that employment.²

If the earnings are paid by reason of a lay-off or separation, that fact remains unalterable regardless of the method or time of payment. These earnings are allocated from the week of the lay-off or separation and not from the date of payment.

Earnings paid or payable by reason of a lay-off or separation are allocated concurrently with earnings from other employments, and consecutively with earnings from THAT employment.³

Termination earnings from past employments that might affect a current entitlement to benefits are also allocated. This is necessary because neither the Act nor the Regulations prescribe a maximum period of time over which the earnings may be allocated.⁴ These earnings would be allocated concurrently with any earnings from other employment.

If an allocation of earnings by reason of a lay-off or separation has already been made, any subsequent earnings paid or payable by reason of that same lay-off or separation are added to the previously allocated earnings.⁵ Then the revised total is allocated from the date of the lay-off or separation.⁶

The claimant's choice of the method or time of payment, or a delay by the employer in issuing payment, or a payment of separation moneys prior to the termination of employment does not affect the period for which the earnings are allocated. Any allocation of earnings commences from the date of the lay-off or separation. In other words, the method or timing of payment only affects when the Commission allocates the money, not the period for which it is allocated. For example, if an employee chooses to receive quarterly payments for three years, the earnings cannot be allocated until each payment is made, because the earnings are not payable until each quarterly period arrives.⁷ Regardless of the number of payments made, there is still only one event, either a lay-off or a separation, not a series of separations that caused the earnings to be paid⁸. Each subsequent payment is added to the termination money that has already been allocated. On the other hand, if the payment is delayed because of administrative reasons, the earnings are still payable and allocated prior to when the actual payment is made.⁹

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1. see 5.6.1, "Paid or Payable"; CUB 14989;
2. EIR 36(9);
3. see 5.6.3.1, "That Employment";
4. CUB 16195;
5. EIR 36(10);
6. EIR 36(9);
7. if the claimant agrees, all the separation pay may be immediately allocated from the date of the lay-off or separation. By this method, once the allocation has ended, the claimant is entitled to benefits. However, if the claimant does not agree to this method of allocation, then an allocation can only occur each time a payment is made;
8. EIR 36(9); EIR 36(10);
9. see 5.6.1, "Paid or Payable."

 

18.1.2    A Violation - Archived June 2003

The Act¹ clearly states that a person accumulates a violation when the Commission issues a notice of violation. A notice of violation is issued as a result of the imposition of any monetary or non-monetary sanction or court judgement on or after June 30, 1996. The violation in turn gives rise to the application of the increased entrance requirements sanction. The exception is a disclosure made under the disclosure policy. Although this disclosure results in a warning letter (a non-monetary sanction), this circumstance does not include a notice of violation.

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1. EIA 7.1(4).

17.5.1    Reconsideration Following Receipt of an Appeal - Archived June 2003

Receipt of an appeal need not automatically result in that appeal proceeding to the Board of Referees. Before that happens, the decision giving rise to the appeal is reviewed by the agent under the appropriate section of the Act¹ as applicable, to ensure that it is in order. When the decision is in order the appeal proceeds through the normal process.

When the decision is not in order it (the decision) is to be corrected². An original decision may be modified on receipt of an appeal provided the appellant's right to appeal is not taken away and the Commission does not interfere with the claimant or the employer's right of appeal³.

When the agent determines that the decision under appeal should be completely reversed in favour of the claimant he or she is so advised and the appeal does not proceed unless the claimant so wishes. The claimant need not withdraw the appeal formally. When there is a reversal of a misconduct, voluntary leaving, or labour dispute related decision in favour of the claimant, the employer is provided appeal rights.

When the agent determines that the decision under appeal should be partially reversed in favour of the claimant the adjustment is made. The claimant is advised of the new decision with appropriate appeal rights. If he or she is satisfied with the new decision, the appeal is withdrawn. Should the claimant wish to pursue the appeal the appeal process is activated as per the appeal process implemented in the HRCC.

When the agent determines that the decision under appeal should be changed but there is still no right to benefits, the change is made and the appeal process is activated on the original decision⁴. Should the appeal proceed to the Board of Referees, the representations will advise the issue to be decided upon, and/or request the Board return the claim to the Commission so it may be adjudicated on the correct issue.

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1. EIA 52; EIA 120;
2. see 17.1.3, "Policy";
3. C. Poulin A-516-91, CUB 19688;
4. F. von Findenigg A-737-82, CUB 7545.

1.5.7    Allocation of Moneys - Archived May 2003

Moneys received by reason of a complete severance of the employer-employee relationship while a claimant's benefit period is in existence constitute grounds for an extension of the benefit period¹. The extension makes it possible to freeze the passage of time for the weeks to which the moneys received are allocated.

In a situation where the allocation of moneys, in and of itself, prevents payment of benefits for a week, an extension for that week may be allowed. However, if the allocation is for a part week only and no benefits are payable because the claimant is disentitled for the full week, no extension will be granted for that week since the allocation did not prevent, in whole or in part, payment of benefits.

On the other hand, if benefits were payable despite the disentitling condition (i.e. a 2-day disentitlement) and the extension condition prevented payment of those benefits, the extension would be granted for that week.

Finally, in some cases the condition giving rise to an extension postpones the serving of the waiting period or results in an allocation of moneys to the waiting period which is equal to the benefit rate. If either situation occurs an extension shall be granted for the week in question.

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1. EIA 10(10).

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