Archived 2006 - Digest of Benefit Entitlement Principles

 

Archived Chapter 7 - November 2006

7.3.2.3  Absence Without Justification

It is not enough to simply advise the employer of an absence; the employer is entitled to know the reasons. Thus, in itself, an unjustified absence may constitute misconduct.

Absenting oneself for a frivolous reason, on some sort of pretext, using a subterfuge or else refusing to disclose the reason for the absence, constitutes misconduct. Misconduct is all the more evident if it is not a first offence.

When permission to be absent was not granted by the employer and the contention is that the claimant had to be absent regardless, the reason for the absence becomes of prime importance. What needs to be determined in such a case is whether the absence was necessary and unavoidable. Plausible explanations are acceptable. In case of doubt, however, the claimant can be asked to provide appropriate evidence. In such a case, it is not so much the failure to provide proof that may result in a disqualification, but rather the fact that the absence was without justification.

In many cases, it is a question of credibility. An employee on sick leave is certainly not expected to remain totally idle during this period. Depending on the nature of the incapacity, the time may be occupied with leisure pursuits or domestic duties compatible with the state of health. However, the illness still has to be genuine and not a mere pretext for going about other business, and it must remain credible given the type of activities pursued.

Back to amendment

Archived version

---

7.2.1 - Step 1: Gathering Relevant Information from Various Sources

It is the responsibility of the Commission to gather all of the information required to determine whether or not the claimant lost his or her employment by reason of his or her own misconduct. The Commission must both¹:

1. give the claimant and the employer an opportunity to provide information as to the reasons for the loss of employment; and
2. if information is provided, take it into account in determining the claim.

The officer's role is to gather all the relevant information in order that a decision can be made without delay, but within the framework required by the legislation. This means that all interested parties are given with the opportunity to provide information on the reasons for the separation, and to refute the version provided by the other party.

Often the claimants are the first contact for fact-finding as they file the claim for benefits and provide basic information as to the reason for separation. This fact-finding by the officer will follow with the employer to obtain his or her own version as to the reasons, then with the claimant, if necessary, or even with anyone else who is able to shed light on the loss of employment. Naturally, the information will as much as possible be sought from those directly involved or eyewitnesses to the events, particularly when there are discrepancies between versions already obtained².

The role of the employer in this context is to provide the Commission with information concerning the reason for the termination of employment, specifying, among other things:  what actions or omissions caused the employer to dismiss the employee; (i.e.: their exact nature, context and background) why the employer felt that such actions or omissions warranted dismissal of the employee; whether such actions or omissions violated a provision of the contract of employment or a policy or rule of the employer or a essential condition of the employment; what information the employer relied on to conclude that the employee committed the actions or omissions in question (i.e.: testimony, investigations, reports, other sources of information); whether the person in question had been previously informed of the employer's rules, policies, requirements or expectations; what reasons the claimant gave for these actions or omissions; if the employer became aware of such actions or omissions some time before dismissing the employee, the reasons for the time elapsed before the termination of employment.

The employer is expected in such circumstances to explain precisely what actions or omissions led to the dismissal and what information was relied upon to conclude that the person in question committed such actions or omissions. The employer is not required to prove that the actions or omissions in question constitute misconduct under the Act nor is the Commission to rely on the employer's belief that the act in question constituted misconduct. Rather, this is one of the two specific questions that the Commission officer must answer in deciding on entitlement to benefits³.

Criminal offences or violations of employment statutes do not generally give rise to different procedures or a different line of questioning for the fact-finding with regard to the termination of employment. In some instances, obtaining the appropriate information concerning a person's actions may prove difficult. The employer may, for example, be reluctant to provide information if a Court or labour arbitration decision is still pending.

The officer must make the employer understand the need for detailed information, particularly with regard to the actions attributed to the claimant and in what context of work or otherwise the incidents occurred. Unless a Court has ordered a publication ban, the employer should be able to divulge sufficient information without adversely affecting any action or proceedings against the claimant. It is not, for example, necessary to provide all the details of an inquiry or the names of the persons named as witnesses.

The information at the employer's disposal may in some instances be limited, such as when the offence was committed outside the work place.

A mere disclosure of the charges with no further detail does not generally provide enough information concerning the actions or omissions attributed to the claimant or the elements relied upon to conclude that the claimant committed such actions or omissions⁴. Depending on the circumstances, a newspaper article describing the events and the alleged involvement of a person may constitute a valid written form of hearsay where information or details cannot be obtained from persons with more direct knowledge of the events.

The officer cannot guarantee confidentiality to the person providing the information, however, when the question arises, he or she can stress that the legislation provides that, where any person who, in good faith, provides the Commission with written, oral or documentary evidence required for determination of entitlement to benefit, the giving of such evidence is deemed an occasion of qualified privilege⁵.

This specific provision must not be resorted to as a means to obtain facts. The officer must never offer advice whether this provision would afford protection in any specific case. If the informant wishes to seek legal counsel as to the applicability of this provision prior to releasing the information, a reasonable period of time should be allowed.

The officer will ask the claimant for information, namely:  whether or not the claimant corroborates the reasons given by the employer for the termination of employment; what the claimant has to say about the actions or omissions attributed to him or her and that are given as the reason for the dismissal; whether or not the claimant was aware of the employer's rules, policies, expectations or requirements in this respect; under what circumstances the actions or omissions attributed to the claimant occurred; whether there were any witnesses or persons who could testify with regard to the events.

Both employers and claimants alike are expected to act in good faith and submit evidence in support of their allegations. There is no question, however, of engaging in any sort of coercive or improper interrogation or a police inquiry with respect to the employer or claimant in order to determine what really happened or to extract admissions concerning the participation of an individual in certain events.

The legislation requires that the claimant provide a reason for any interruption of earnings or information concerning the termination of employment. Refusal to provide such information may result in a denial of benefits⁶.

It goes without saying that a disentitlement due to lack of information can be imposed only as a last resort, when reasonable attempts to obtain the relevant information have been unsuccessful. It must never be imposed when claimants have acted in good faith and frankly disclosed all the information they had. Even if the situation remains ambiguous, whether because the employer chooses not to disclose certain facts or because the employer's version is altogether different, we will rely solely on the balance of probabilities, with particular attention given to the credibility of the evidence.

________________________

1. EIA 51;
2. D. Choinière (A-471-95, CUB 28142);
3. see 7.2.3, "Step 3: Answering Two Specific Questions Based on the Information Gathered"; H. Fakhari (A-732-95, CUB 29423); M. Guay (A-1036-96, CUB 36064);
4. M. Meunier (A-130-96, CUB 31899);
5. EIA 129;
6. EIA 49(1); EIA 50(5).

Back to amendment

Archived version

---

6.3.2 Sexual or Other Harassment

Harassment is generally defined as any improper behaviour by a person that is directed at and offensive to another person and which the first person knew or ought reasonably to have known would be unwelcome. Harassment may take the form of reprehensible comments, actions or displays which humiliate, degrade or embarrass another person. Harassment may come from a person or a group of persons, managers or employees, creating a hostile and poisoned work environment that quickly becomes intolerable.

Harassment also includes abuse of power through the injurious exercise of authority for the purpose of compromising a person's employment, damaging performance at work, endangering means of subsistence or interfering with their career in any other way. Acts such as intimidation, threats, blackmail and coercion also constitute a form of harassment.

Whether sexual or non-sexual in nature or committed once or many times, harassment is reprehensible and cannot be tolerated. Sexual harassment in particular is a major problem in many workplaces and is extremely traumatic, both physically and psychologically, for the victim.

It is generally recognized that most victims of sexual harassment in the workplace are women. Although there is recourse available, victims of sexual harassment do not for the most part take any action and instead suffer in silence to avoid being judged by society or out of fear that there will be reprisals or their career will be jeopardized.

A harassment victim may react in a number of different ways that may seem illogical or unreasonable to anyone who is unfamiliar with the psychological profile of the victim and the serious trauma harassment can cause. A victim will generally try to avoid any contact or confrontation with the person by whom he or she was harassed, request a transfer or a different work schedule, or take sick leave. Some victims even quit their jobs spontaneously to ensure there is no further harassment or to escape a situation that has become intolerable.

The officer cannot determine whether harassment occurred by examining the behaviour of the harassment victim after the fact. As we saw in the previous sections¹, the officer has to adapt his or her search for the facts to the circumstances and accept at face value the allegations made by the person who claims to have been harassed.

The fact that a person did not take any recourse or did not await the outcome of any remedy before voluntarily leaving his or her employment must not be considered against the claimant when the situation indicates intolerable harassment that could not have been resolved immediately or within a few days of the incident. However, if the company that employed the claimant had a credible, coherent and structured policy that the claimant could have used to resolve the situation immediately, the officer must ask the claimant to explain why he or she did not use that alternative, which on the surface appeared to be reasonable.

________________________

see 6.2.4, "A Test Based on Fact Finding with all the Parties"; see 6.2.5, "Benefit of the Doubt."

Summary Sexual or Other Harassment

Reasonable Alternatives:  discuss the problem with the employer;  request a transfer to another division;  contact the union;  use the provisions in the collective agreement;  not necessary to initiate or await the outcome of legal proceedings (labour or human rights);  Just Cause:  harassment intolerable for any period;  no other reasonable alternative than to leave;  existing reasonable alternatives failed to remedy the situation;  valid grounds for not having used reasonable alternatives.

Back to amendment

Archived version

---

6.2.4    A Test Based on Fact Finding with All the Parties

The importance of gathering the facts and the need to clarify the circumstances that led to the voluntary separation can never be overemphasized. In this regard, the Commission shall¹:

give the claimant and the employer an opportunity to provide information as to the reasons for the loss of employment; and if the information is provided, take it into account in determining the claim.

In this context, let us clarify the roles and responsibilities of each party (claimant, employer and the Commission) in the employment insurance system.

It is the responsibility of the person who took the initiative to voluntarily leave his or her employment to provide reasons for that decision and, if he or she wishes to be eligible for benefits, to show that the decision was justified within the meaning of the Act². More often than not, that person is in a better position than anyone else to reconstruct the circumstances in their context. That person is the one who experienced them and can provide information on and explanations of what happened, the approach he or she took and the other reasonable alternatives he or she might have considered before ultimately deciding to voluntarily leave the job.

The employer's role is to provide the Commission with the required information on the circumstances surrounding the separation, particularly where the circumstances are related to the work environment.

The role of the officer of the Commission is not to use every available means to obtain information that will justify denying benefits. The Commission officer is there to enable the claimant to provide the information needed to make a decision, to facilitate settlement of the claim as quickly as possible and to authorize the payment of benefits within the framework established by the legislation.

In seeking the facts, the officer must endeavour to obtain only information that is essential for making a decision. He or she must at all times respect the established principles of fairness and natural justice by giving both the person and the employer the opportunity to give their account of the facts without deeming either version to be by itself more valid than the other.

The officer must remain neutral and objective, exercise judgment and common sense and not take an attitude that could imply that he or she is biased or is judging the actions or behaviour of any of the parties. The officer must be able to listen, be discreet in handling the person's problems and give the person advice appropriate to the situation.

The officer must adapt his or her search for the facts to the specific circumstances of the case as, for example, where there are indications that a person left his or her employment because of sexual harassment. The Commission’s policy in such a situation is to offer to the claimant the opportunity to speak to an officer of the same gender and to obtain the information needed for processing the claim in a more private environment.

An officer must not expect a victim of sexual harassment to openly discuss the events that took place, to have kept a record of the steps taken to remedy the situation or to have taken an entirely rational approach.

The officer must endeavour to obtain only the basic information the victim agrees to provide and must, of course, be discreet and considerate. In some cases, the officer may consider gathering testimony from other persons who, in the victim's opinion, are familiar with the situation. Every effort must be made to deal with the victim in a compassionate, credible and reassuring manner.

The officer will ask the employer in this case to provide the required information on the reason for separation. The officer will simply take the employer's version, and at no time at this stage in the gathering of facts will he or she reveal to the employer the account given by the victim unless the victims agrees to such disclosure or the employer mentions it specifically.

________________________

1. EIA 51;
2. J. Murray (A-645-94, CUB 25797A).

Back to amendment

Archived version

---

Archived October 2006

23.3.1 Limits to the Number of Weeks of Special Benefits Payable

Each type of special benefits has an individual maximum number of weeks that can be paid in one benefit period¹.  The individual maximums are: 15 weeks for maternity benefits; 35 weeks for parental benefits; 15 weeks for sickness benefits and 6 weeks for compassionate care benefits.

Special benefits may be paid in any combination during a benefit period provided the claimant proves entitlement for each type of benefit. There is no change to the maximum of 50 weeks of benefits payable when regular and special benefits are combined. The maximum special benefits payable in a benefit period when regular benefits were not paid are²:

• 65 weeks when maternity, parental and illness benefits are combined
  
  
• 56 weeks when parental, illness and compassionate care benefits are combined
  
  
• 56 weeks when maternity, parental and compassionate care benefits are combined
  
  
• 71 weeks when maternity, parental, illness and compassionate care benefits are combined.

A claimant who does not qualify for regular benefits under the EI Act³ but qualifies for special benefits because of the regulatory exception⁴, can only receive special benefits. 

_____________________________

1. EIA (12)3
2. EIA 12(5)
3. EIA 7
4. EIR 93

Back to amendment

15.7.0    SPECIAL BENEFITS

Once a fishing benefit period has been established, special benefits such as sickness, maternity and parental are payable, if the claimant meets the entitlement conditions for the type of benefits claimed¹.

Special benefits are subject to the maximums established by the EI Act².

The maximum number of combined weeks of regular fishing benefits and special benefits must not exceed 50³.

________________________

1. EIR (Fishing) 8(17);
2. EIA 12(3); EIA 12(5); EIA 12(7);
3. EIR (Fishing) 8(18).

In situations where the birth or placement for adoption of a child or the first day of incapacity is prior to December 31, 2000, refer to the legislation and Digest principles as  previously read.

Back to amendment

15.7.1    Special Benefits for New Entrants and Re-Entrants

Similar provisions to the one found in the EI Regulations which allow new entrants who do not have enough earnings to qualify for benefits but have enough earnings to qualify for special benefits, are also applicable to fishing benefits¹.

A fisher who is a new entrant or re-entrant to the labour force and who is claiming special benefits qualifies to receive the benefits if the person:

• is not qualified to receive regular benefits²; and
• is a major attached; has at least $3760 of insurable earnings from fishing in the qualifying period³.

When the above conditions are met, a benefit period is established and special benefits are payable according to the provisions of the EI Act and the EI Regulations⁴.

A claimant is not entitled to be paid special benefits for a working day in respect of which the claimant fails to prove that on that day, the claimant was:

• unable to work because of an illness, injury or quarantine and that the claimant would otherwise be available for work, or
• entitled to maternity or parental benefits⁵.

Regular fishing benefits and additional special benefits are payable to a claimant who has received special benefits where:

• the claimant has accumulated, since the beginning of the benefit period, insurable earnings from employment as a fisher that, when added to the insurable earnings in the qualifying period, equal or exceed

(i)in the case of a new-entrant or re-entrant, $5,500, and

(ii)in any other case, the applicable amount of insurable earnings in employment as a fisher set out in the schedule, determined be reference to the week in which the benefit period  began⁶; and

• regular fishing benefits or additional special benefits are payable in that fishing benefit period based on the insurable earnings in the claimant's qualifying period⁷.

________________________

1. EIR (Fishing) 12(2);
2. EIA 7(3);
3. EIR (Fishing) 12(1);
4. EIR (Fishing) 12(6);
5. EIR (Fishing) 12(4);
6. EIR (Fishing) 12(5)(a);
7. EIR (Fishing) 12(5)(b).

In situations where the birth or placement for adoption of a child or the first day of incapacity is prior to December 31, 2000, refer to the legislation and Digest principles  as previously read.

Back to amendment

Archived version

---

The benefit period for a summer fishing claim extends from the week of October 1 to the week of June 15. The benefit period for winter fishing claim extends from the week of April 1 to December 15¹.

A benefit period for regular fishing benefits ends with the earlier of:

1) the week in which the maximum number of benefits (26 weeks) has been reached; and
2) the week in which the maximum duration of the benefit period as specified in the regulation² has been reached.

The benefit period cannot be extended while claiming regular fishing benefits.³

The benefit period can be extended to a maximum of 52 weeks in situations where special benefits are claimed⁴. For each week of special benefits claimed, the benefit period would be extended by one week up to a maximum of 52 weeks⁵. This provision applies where the birth or the placement for adoption of a child or where the first day of incapacity falls after December 30, 2000.

________________________

1. EIR (Fishing) 8(1); EIR (Fishing) 8(6);
2. EIR (Fishing) 8(1) ; or EIR (Fishing) 8(6) ;
3. EIR (Fishing) 8(11) ;
4. EIR (Fishing) 8(17) & (18), see 15.7.0 ;
5. EIR (Fishing) 8(11.1)

In situations where the birth or placement for adoption of a child is prior to December 31, 2000, refer to the legislation and Digest principles as previously read.

Back to amendment

14.4.0    SPECIAL BENEFITS

Claimants engaged in the occupation of teaching are entitled to maternity, parental, and compassionate care benefits during both the teaching and non-teaching periods provided all entitlement criteria for these benefits are met¹.

Sickness benefits are payable during the teaching period if the entitlement conditions are met.  However, sickness benefits are not payable to teachers during the non-teaching periods unless one of the three conditions found in the regulation² is met³.

[June 2005]

 

________________________

1. EIR 33(2);
2. EIR 33(2);
3. St-Coeur (A-80-95)

Back to amendment

11.1.2    With Respect to Two Entitlement Conditions

Regardless of the type of benefits being claimed, an insured person must meet the qualifying conditions for the specific benefits claimed¹. With respect to sickness benefits, the qualifying conditions stipulate that the claimant must be major attached, that is have accumulated 600 hours of insurable employment during the qualifying period² and must have an interruption of earnings from employment³.

Having met the required qualifying conditions to have a benefit period established does not necessarily authorize the payment of sickness benefits. The following passage leaves no doubt about the specific conditions to fulfill for the insured person who makes a claim for benefits⁴:

A claimant is not entitled to be paid benefits for a working day in a benefit period for which the claimant fails to prove that on that day the claimant was

(a)    . . . ;
(b)    unable to work because of prescribed illness, injury or quarantine, and that the claimant would otherwise be available for work . . .

This extract identifies two conditions for entitlement to sickness benefits. It is not enough for a person to demonstrate that he or she is incapable of work by reason of a prescribed illness, injury or quarantine⁵, but also that he or she would be otherwise available for work⁶.

________________________

1. EIA 7; EIA 7.1; EIR 93; see 1.2.0, "Establishing a Benefit Period";
2. EIA 6(1), see 1.2.3, "New Entrant or Re-Entrant"; see 1.2.5, "Regular Qualifier-Claimant other than a New Entrant or Re-Entrant";
3. see Chapter 2, "Interruption of Earnings";
4. EIA 18;
5. see 11.2.0, "First Entitlement Condition: To Be Unable To Work"; see 11.2.3, "Other Means and Sources of Information";
6. see 11.3.0, "Second Entitlement Condition: To Be Otherwise Available For Work." 

Back to amendment

11.5.1    Limits to the Number of Weeks of Benefit Payable

A person who qualifies for sickness benefits¹ is entitled to be paid such benefits at any time during the benefit period. This does not necessarily mean that he or she will receive them during an unlimited number of weeks for the full duration of the benefit period. In this respect, the Act has placed specific limits on the payment of sickness benefits.

A first limit is defined in the following passage²:

. . . the maximum number of weeks for which benefits may be paid in a benefit period
. . . (c) because of a prescribed illness, injury or quarantine is 15.

However, this limit of fifteen weeks is not a maximum that is guaranteed in all cases even if a person proves that he or she is unable to work for a longer period of time.

It should be noted that Parliament has combined in one group what in everyday language are called special benefits: benefits paid for the reasons of pregnancy, of caring for a new-born child or a child placed for the purpose of adoption, and of illness, injury or quarantine. The maximum number of weeks of special benefits paid as special benefits is 50³. Additionally, the same maximum of 50 weeks paid in a benefit period applies for a combination of special and regular benefits⁴.

It should be noted that this maximum of 50 weeks of combined benefits does not allow a greater number of weeks of benefits to be paid than the individual maximums for the different types of benefits as provided in the legislation⁵.

________________________

1. see 11.2.0, "First Entitlement Condition: To Be Unable To Work" to 11.4.0, "A Specific Condition For the Minor Attachment Claimant";
2. EIA 12(3);
3. EIA 12(5);
4. EIA 12(6);
5. See Outline 1 & 2, Digest 1

In situations where the first day of incapacity is prior to December 31, 2000, refer to the legislation and Digest principles as previously read.

Back to amendment

8.10.3    Acceptable Proof

There is a need for more than a simple statement from the claimant that his or her absence from employment was anticipated and that arrangements to this effect had begun before the stoppage of work. It is essential that the claimant provide the relevant information, explanations and, when required, documents in support of such a statement, so that it could reasonably be concluded, on the weight of the evidence, that he or she fulfilled the supplementary condition.

In the case of pregnancy acceptable proof is the claimant's declaration as to her pregnancy and her actual or expected date of confinement submitted with the claim for benefit insofar as it establishes that the claimant was pregnant before the stoppage of work.

For those who are caring for a newborn child, acceptable proof may be a confirmation from the employer that a leave for such an absence from employment had been anticipated and requested before the stoppage of work. A person could also demonstrate by the work history that the absence was anticipated and planned in order to take care of the newborn child, as had been the case for the earlier births. Moreover, we could accept an unequivocal statement that demonstrates that all had been in place before the stoppage of work for the claimant to withdraw from the labour market for a certain period of time in order to care for the newborn child.

A statement from a medical practitioner could also establish that it was known, before the start of the stoppage of work, that the newborn child's state of health would eventually require the father or mother to be absent from work.

With respect to illness, injury or quarantine, the claimant will be required to submit a medical certificate attesting that the absence in question was anticipated before the start of the stoppage of work and that arrangements in that respect had begun before the stoppage of work. We are strictly dealing here with illness or injury for which an absence had been anticipated, be it for treatment, surgery or rest in a detoxification centre, and in respect of which arrangements had begun before the start of the stoppage of work.

What is not considered in this category is an illness or injury that was diagnosed before the stoppage of work, but it had not been anticipated before the start of the stoppage of work that there would eventually be an absence from work. The same would apply in the case of an illness or injury which occurred before the start of the stoppage of work but the claimant had not made any arrangements to be absent from employment until after the start of the stoppage.

It would be acceptable where the illness is related to a chronic or degenerative condition that results in episodic absence from employment whose existence was known before the start of the stoppage of work. One need only think of, amongst others, severe diabetes, chronic depression, heart or pulmonary illness, or complications related to the acquired immune deficiency syndrome.

For those attending a course or employment activity it need only be confirmed by the designating authority that the arrangements for this participation had begun before the stoppage of work.

Finally, a vague possibility of an absence, without further specifics is not sufficient to arrive at the conclusion that the absence was anticipated. It is necessary that the elements of anticipation, planning and organization be found to exist before the start of the stoppage of work in order for an absence to be considered as "anticipated" before the said stoppage. The situation here is one where the claimant had begun making arrangements before the start of stoppage of work and the absence from employment had been one of the anticipated consequences.

 

Back to amendment

8.10.1    Otherwise Entitled to Benefits

The suspension of the disentitlement, as provided in the text of the legislation¹, should not be viewed as not having any distinction to the period of time which can exist in a benefit period or for which a claimant could invoke reasons to claim these benefits. The suspension is only possible during the period for which the claimant proves that he or she is otherwise entitled to benefits for one of the following reasons²: pregnancy, caring for a new-born or a child placed for the purposes of adoption, illness, injury, quarantine or attending a course or employment activity to which the claimant was referred by a designated authority. This framework constitutes one of the two prerequisites, which provides for suspension of the disentitlement.

Therefore at the outset it is important to know the reasons why the claimant is requesting benefits during a period of disentitlement under the legislation concerning labour disputes. It is not necessary to go any further if it is not for one of the preceding reasons.

The next step is to determine whether the claimant is otherwise entitled to benefits for the reasons stated if not for the dispute and the work stoppage. It must first be determined whether the claimant meets the qualifying conditions attached to the type of benefits being claimed, such as the required number of hours of insurable employment, documents and proof required to support the declarations and period for which benefits are claimed. A minor attached claimant, for example, cannot receive maternity³ or parental benefits⁴. The same would apply to a claimant who has already received the maximum benefits payable for sickness⁵ and subsequently claims more of these benefits during the course of the stoppage of work.

A claimant may successfully invoke several reasons during the benefit period that would allow for the suspension of the disentitlement. One can think of sickness benefits followed by maternity benefits followed by parental benefits. Each of these reasons must be examined separately with respect to their own conditions of entitlement.

The fact that a person would otherwise be entitled to benefit for the reasons mentioned does not constitute a guarantee that the disentitlement will be suspended. A supplementary condition is provided in the legislative text, and is dealt with in the following heading.

________________________

1. EIA 36(3);
2. the reasons are those mentioned in EIA 12(3); EIA 25;
3. EIA 22(1);
4. EIA 23(1);
5. EIA 12(3).

   Back to amendment

   Archived version

   ---

8.1.7    Suspension of the Period of Disentitlement

A disentitlement that continues for one or more days a week will reduce the amount of benefits payable to a claimant in a week of unemployment.

The effect of a disentitlement on the payment of benefits obviously no longer exists when the disentitlement is terminated. That however is not the sole situation where the claimant may again receive the entire amount of benefit which is payable in respect of a week of unemployment. Another situation provides for the suspension of a disentitlement in the case of pregnancy, care for a newborn or a child placed for the purposes of adoption, illness, injury or quarantine or attending a training course to which one was directed by an authority designated by the HRCC. The legislation provides that in that case¹:

a disentitlement under this section is suspended during any period for which the claimant
(a) establishes that the claimant is otherwise entitled to special benefits or benefits by virtue of section 25: and
(b) establishes, in such manner as the Commission may direct, that, before the work stoppage, the claimant had anticipated being absent from their employment because of any reason entitling them to those benefits and had begun making arrangements in relation to the absence.

These issues will be more fully discussed under other headings².

________________________

1. EIA 36(3);
2. see 8.10.0, "Suspension of the Disentitlement" to 8.10.4, "Period Suspended."

   Back to amendment

   Archived version

   ---

2.3.1    Special Benefits

When an insured person ceases to work because of an illness, injury, quarantine, pregnancy or to care for a new born or a child placed for the purpose of adoption, there may be an interruption of earnings even if the claimant only has a partial reduction in remuneration. An interruption of earnings occurs in respect of an insured person at the beginning of the week in which a reduction in earnings occurs, of more than 40 percent in the insured person's normal weekly earnings, because he or she ceases to work in that employment for one of the reasons mentioned¹.

In this context, the normal weekly earnings are calculated on the basis of the regular hourly rate multiplied by the regular hours in a week, including overtime worked on a regular basis².

The interruption of earnings in the circumstances occurs when the individual's allocatable earnings³, including in particular wages or salary, fall below 60 percent of normal weekly earnings.

The amounts of payments a claimant has received or, on application, is entitled to receive under a group sickness or disability wage-loss indemnity plan or workers' compensation plan, are not earnings to be taken into account here⁴. What is taken into account, however, are payments a claimant has received or, on application, is entitled to receive under a paid leave plan for sickness, maternity or for the care of a new born or a child placed for the purpose of adoption⁵.

What is taken into account also, are the payments a claimant has received or, on application, is entitled to receive from motor vehicle accident insurance provided under or pursuant to a provincial law in respect of the actual or presumed loss of income from employment⁶ as well as the indemnity payments a claimant has received or, on application, is entitled to receive pursuant to a provincial law in case of preventive withdrawal of work⁷.

Moneys received as borrowed sick leave against future credits are earnings; thus, a person who requested and obtained an advanced sick leave payment was held not to have an interruption of earnings upon exhausting already earned credits⁸.

________________________

1. EIR 14(2);
2. Jurisprudence Index/earnings/allocation/normal weekly earnings/overtime/;
3. EIR 35(2);
4. EIR 35(4);
5. EIR 35(2)(c);
6. EIR 35(2)(d);
7. EIR 35(2)(f);
8. Jurisprudence Index/earnings/sick leave pay/.

Back to amendment

4.1.1    Application

Regardless of whether regular or special benefits are being claimed, claimants must first show that they have been unemployed during the week for which a claim is made¹.

Claimants who attend a course or program of instruction or training or participate in any other employment activity to which they have been referred² are deemed to be unemployed. The same is true in respect of certain periods of the year for claimants who have established a fishing rather than a regular benefit period³.

________________________

1. EIA 12(1); EIA 22(2); EIA 23(2);
2. EIA 25(1); see Chapter 19, "Employment Benefits and Support Measures (Part II of the EI Act)";
3. EIR (Fishing) 9(3); see Chapter 15, "Fishing Benefits."

 

Back to amendment

4.6.10    Claim for Special Benefits

Persons who are self-employed, who operate a business on their own account or as partners or co-adventurers, or who have any other employment in which they control their own working hours are considered to have worked a full working week¹ and therefore are not considered unemployed.

Despite this, such persons may qualify for sickness², maternity³, and parental benefits⁴ when they meet the eligibility requirements applicable to these benefits and have accumulated sufficient insurable hours to establish a benefit period⁵. However, payment of such benefits is considered only in respect of a week of unemployment, in other words only for those weeks during which the claimant did not work a full working week⁶.

Claimants demonstrate that they are unemployed and not working a full working week, when they prove, during the period for which they are claiming benefits, that their employment-related activities in the business are performed to such a minor extent that a person would not normally rely on that employment as a principal means of livelihood⁷. The agent must examine the six circumstances provided for by Regulation⁸ to determine whether or not the claimant works a full working week for the period in respect of which special benefits are being claimed.

When claimants do not meet the minor in extent exception, they are regarded as having worked a full working week. Consequently, no sickness, maternity or parental benefit is payable in respect of such weeks.

When a claimant engaged in the operation of business also works as an employee and is insurable ⁹, it is particularly important to establish the position and the related responsibilities that the claimant holds in the corporate structure in order to determine whether or not the claimant has a role in the operation of the business. The fact that the employment is insurable does not in and of itself mean that the claimant cannot be considered "not unemployed" if in addition to working as an employee, he or she is participating in the running of the business.

When the claimant continues to participate in the operation of the corporation, for the period in respect of which special benefits are being claimed, he or she will be considered to have worked a full working week unless the "minor in extent" exception is proven¹⁰.

The earnings are only allocated when the claimant's involvement or engagement in self-employment is minor in extent¹¹.

Consequently, when persons claiming and satisfying the conditions to receive maternity and/or parental benefits meet the minor in extent exception, such benefits are payable to them for each week of unemployment included in the period of leave.

There is an additional provision that applies to persons claiming sickness benefits. These claimants must also prove that, had it not been for their incapacity, they would have been otherwise available for work¹². This second condition provided for by the Act is aimed at limiting the payment of sickness benefits solely to persons who would have been eligible for regular benefits had it not been for their incapacity for work¹³. Sickness benefits are payable for each week of unemployment in that period when claimants meet the first entitlement condition, that they are unemployed, and the second condition, that they would have been otherwise available for work.

________________________

1. EIR 30(1);
2. EIA 18; see Chapter 11, "Sickness Benefits";
3. EIA 22; see Chapter 12, "Maternity Benefits";
4. EIA 23; see Chapter 13, "Parental Benefits";
5. EIA 7; see 1.2.0, "Establishing a Benefit Period";
6. EIA 11;
7. EIR 30(2); see 4.6.4, "Exception to Overcome the Presumption of a Full Working Week";
8. EIR 30(3); CUB 25211; see 4.6.4.1, "Circumstances Determining Whether a Claimant's Involvement is Minor in Extent";
9. See 4.6.8.; see 4.6.8.1;
10. EIR 30(2); EIR 30(3);
11. EIR 35; see 5.16.0, "Earnings from self-employment";
12. EIA 18; see 11.3.0, "Second Entitlement Condition: To be Otherwise Available for Work";
13. see 11.3.0, "Second Entitlement Condition: To be Otherwise Available for Work."

Back to amendment

6.6.0    PERIODS OF LEAVE AND ANTICIPATED LOSS OF EMPLOYMENT

Taking a leave of absence without pay¹ and leaving within three weeks of an anticipated impending lay-off or separation² are considered to be voluntary leaving. If it is established that the voluntary leaving is without just cause, the claimant is not entitled to benefits³ for the entire period of employment lost rather than being indefinitely disqualified. However, such a disentitlement is suspended during any week for which the claimant is otherwise entitled to special benefits, that is, sickness, maternity, and parental benefits.⁴ For claimants on a leave of absence, the disentitlement for the period of employment lost may be terminated earlier if the claimant accumulates with another employer the number of hours of insurable employment required to qualify for benefits⁵.

________________________

1. Jurisprudence Index/voluntarily leaving employment/applicability/leave of absence granted/
2. Jurisprudence Index/voluntarily leaving employment/applicability/impending layoff/
3. EIA 32 and EIA 33;
4. EIA 34;
5. EIA 32(2)(c).

Back to amendment

6.6.3    Special Benefits

Any disentitlement imposed related to voluntary leaving is suspended¹ when Special Benefits are claimed and otherwise payable. This applies to sickness, maternity and parental benefits.

________________________

1. EIA 34.

Back to amendment

CHAPTER 1 -  Archived September2006

CHAPTER 1 BASIC CONCEPTS

1.1.1    Summary

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. The legislation was further extended to pay benefits to adoptive parents in 1984 and paternity benefits in special circumstances were introduced in 1987. This evolved to parental benefits in 1990, replacing adoption and paternity benefits.

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 definition of the term "spouse" was amended in 2000. The term "spouse" refers to someone who is married to the claimant. Equal consideration must be given under this provision to a claimant who is living in a relationship of a conjugal nature with an individual of the same or opposite sex and has so lived with this individual for a period of more than one year or who has a child or is about to have a child with that individual.

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.

[November 2003][July 2003]

Back to amendment

1.1.5    Types of Benefits

Although the legislation covers various types of unemployment situations, the benefit payable in each instance is not so defined.

Following are the various types of benefits:

1. regular benefits;¹
2. sickness benefits;²
3. maternity benefits;³
4. parental benefits;⁴
5. fishing benefits;⁵ and
6. developmental program benefits⁶.

Each type of benefit (except regular benefits) will be discussed in a separate chapter. Sickness, maternity and parental benefits are referred to as special benefits as opposed to regular benefits paid to claimants while they are looking for work.

Benefits paid to persons engaged in fishing are subject to specific entitlement conditions. The same is true for benefits payable for developmental programs for work sharing, job creation and occupational training. Human Resources and Social Development Canada (HRSDC) also has the authority to make regulations to establish schemes whose objectives are to provide assistance in the development of the labour force⁷.

 ________________________

1. payable to claimants who prove their availability for employment as specified in EIA 18(a);
2. payable to claimants who prove their incapacity as specified in EIA 18(b); sickness also includes injury and quarantine;
3. EIA 22;
4. EIA 23;
5. EIA 153;
6. EIA 24; EIA 25;
7. EIA 25.

Back to amendment

1.2.3    New Entrant or Re-Entrant

A new entrant or re-entrant is a person who during the 52 weeks preceding the qualifying period has accumulated less than 490 hours¹ of labour force attachment².

If the claimant does not have the 490 hours of labour force attachment in the 52 weeks preceding the qualifying period, then at least 910 hours of insurable employment in the qualifying period are required in order to establish a benefit period³.

Furthermore, re-entrants who have received one full week or more of maternity or parental benefits in 208 weeks preceding the 52 weeks prior to the qualifying period are not considered to be re-entrants⁴ and as a result can qualify for benefits as regular qualifiers for benefit periods established October 1, 2000 and later.

A claimant must prove that the qualifying conditions, whether they relate to a new entrant or other than a new entrant, have been met⁵. It is up to the claimant to show that he or she is not a new entrant. He or she will be required to provide documentary evidence of labour force attachment such as a Record of Employment, a letter from a relevant person or pay stubs. Of course, the claimant does not need to substantiate information already in the hands of the Commission, such as the number of weeks for which benefits have been paid or earnings that have precluded the payment of benefits.

________________________

1. EIA 7(4);
2. see 1.2.7, "Attachment to the Labour Force-Prescribed Hours";
3. EIA 7(3); Jurisprudence Index/basic concepts/new entrant or re-entrant/;
4. EIA 7(4.1)
5. EIA 48(1).

Back to amendment

1.2.4    Special Benefits for New Entrant or Re-Entrant

Major attached claimants¹ are eligible for special benefits, provided the claimant meets the conditions and limitations of the Act related to the special benefits claimed². Although the entrance requirements for the new entrant or re-entrant are 910 hours, there are provisions which permit the payment of special benefits to these claimants who have at least 600 insured hours in their qualifying period³. These provisions ensure that all major attached claimants have access to special benefits.

Furthermore, a new entrant or re-entrant claimant who has received special benefits may subsequently qualify for regular benefits on that claim provided the claimant returns to work and accumulates additional insurable hours which when added to the hours used to initially establish the claim, equal or exceed the number of hours required to establish a regular claim, in accordance with Section 7(2) of the Act⁴. Regular benefits could then be paid based on the entitlement weeks determined by Schedule 1 of the Act⁵ and the duration of the benefit  period.

An exception to this would be situations where because of the rate of unemployment, there is no entitlement per Schedule 1 at the time the claim was initially established. This exception is specific to claims which had been established for special benefits with between 600 to 699 insurable hours and the regional rate of unemployment was less than 8%.

______________________________

1. see 1.2.10, "Categories of Claimants";
2. see Chapter 11, "Sickness Benefits"; see Chapter 12, "Maternity Benefits"; see Chapter 13, "Parental Benefit";
3. EIA 153.1.
4. EIA 7(2)  An insured person, other than a new entrant or a re-entrant to the labour force, qualifies if the person.
   
   (a) has had an interruption of earnings from employment; and
   
   (b) has had during their qualifying period at least the number of hours of insurable employment set out in the following table in relation to the regional rate of unemployment that applies to the person.
5. Schedule 1 of EIA

Back to amendment

1.2.7    Attachment to the Labour Force–Prescribed Hours

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: 

• a) any hours of insurable employment⁵, including fishing;
  
  b) any week served as part of the waiting period⁶;
  
  c) week of disqualification⁷;
  
  d) 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;
  
  e) 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;
  
  f) 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;
  
  g) any week during which the claimant was attending a course or program following referral by the Commission or an authority designated by Commission¹¹;
  
  h) any week during which the claimant was employed under the self-employment program or job creation program¹²;
  
  i) any week of unemployment resulting from a stoppage of work within the meaning of the legislative provision on labour disputes¹³;
  
  j) 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;
  
  k) 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;
  
  l) 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;
  
  m) any weeks of income support under TAGS, other than support for early retirement for self-employed and other fishers and plant workers for two years after the last week for which TAGS benefits will be paid.

Any employments 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. limitation contained in 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).

Back to amendment

1.2.10   Categories of Claimants

Once a benefit period has been established, a claimant is regarded as a "major attachment claimant" when there are at least 600 hours of insurable employment in the qualifying period¹. The claimant is regarded as a "minor attachment claimant" when there are less than 600 hours but the minimum number required has been met².

Both major and minor attachment claimants may qualify for regular benefits³. However, only major attachment claimants may qualify for maternity⁴, and parental benefits⁵.

A major attachment claimant qualifies for sickness benefit even if the cessation of employment was due to incapacity. A minor attachment claimant who ceases to work due to incapacity is not entitled to sickness benefits⁶.

________________________

1. EIA 6(1);
2. EIA 6(1);
3. EIA 9;
4. EIA 22;
5. EIA 23;
6. EIA 21(1).

Back to amendment

1.3.3    Calculation of Extension

An extension to the qualifying period will be granted where a claimant was not employed in insurable employment during a given period even when another reason also existed which would not be acceptable for extension, no matter what was the chronology of events. An example of this would be the case where a person who was incapable of working due to medical reasons while also on vacation, even outside the country, would have the qualifying period extended for the total duration of the incapacity.

Once the acceptable period for extension purposes has been determined, the number of full calendar weeks within this period is calculated. Where the period includes partial weeks at the beginning or the end, each may be counted as a full week provided that one of the four grounds for extension actually prevented the claimant from either holding insurable employment or from actively seeking such employment in that week. Any week, for which a payment of benefit was made or is deemed to have been made, even as little as one dollar, must be excluded¹. The qualifying period is then extended by the remaining number of weeks².

Other grounds for extension may arise at another time during the 52 weeks of the normal qualifying period or during the extended period. In this event, the same procedure is used to further extend the qualifying period³, with the sole restriction that the qualifying period may not be extended beyond the commencement date of any prior benefit period or beyond the maximum 104 weeks mentioned previously⁴.

________________________

1. EIA 8(2); Jurisprudence Index/basic concepts/qualifying period/extension/benefits paid/; for benefits deemed to be paid, see 1.9.3, "Weekly Rate of Benefit";
2. EIA 8(2);
3. EIA 8(4);
4. see 1.3.0, "Extension of Qualifying Period."

Back to amendment

1.4.2    Number of Weeks of Benefit

It must be remembered throughout this section that the issue is regular benefits. Benefits other than regular, such as sickness, maternity or parental benefits are subject to their own specific legislative provisions. It is the same for fishing benefits and those related to developmental programs. These types of benefits¹ will be covered in their own specific chapters.

In a benefit period, benefits may be payable² for every week of unemployment³ that follows the waiting period⁴. The maximum number of weeks for which benefits may be paid in a benefit period is determined at the beginning of this period and is dependent on two factors. They are: the number of hours of insurable employment held by the claimant in his or her qualifying period and, the regional rate of unemployment that is applicable to the claimant⁵ in the week when the benefit period commences. This maximum number varies from 14 to 45. For example, when the applicable regional rate of unemployment is 6%, and a claimant has accumulated 700 hours of insurable employment in the qualifying period, then a maximum of 14 weeks of benefits may be payable. Whereas another, who had 1330 hours of insurable employment and the applicable rate of unemployment is greater than 16%, could receive up to 45 weeks of benefits. The Table of Weeks of Benefit in the Act⁶ clearly shows these two factors and the various maximum of weeks of benefit which could be paid.

It is not necessary that the weeks of benefit are consecutive; as long as benefits have not been exhausted, they may be paid at any time during the benefit period. The amount of benefits paid in a given week is irrelevant. Any week for which $1 or more has been paid or is deemed to have been paid counts as a week of benefit paid⁷.

The Regulations provide that under certain circumstances a claimant who resides out of Canada is not disentitled from benefits for the sole reason of that residence. However, the number of weeks of benefit which may be paid in these circumstances are subject to different rules, which are described below.

A claimant, permanently or temporarily residing in a state of the United States that is contiguous to Canada, who is available for work in Canada and is able to report in person at a Human Resources and Social Development Canada (HRSDC) office in Canada when directed, is not disentitled from benefit for the sole reason of residing outside of Canada⁸. It is the same for the person who resides temporarily or permanently in the District of Columbia, in any of the United States, the Virgin Islands, and Puerto Rico, on the condition that the HRSDC has not suspended, for the place involved, the Agreement between Canada and the United States respecting Unemployment Insurance, as modified June 21, 1985 and, that this person proves his or her entitlement to benefit under this agreement⁹. In such a case, the maximum number of weeks of benefit that may be paid in a benefit period is dependent on the number of hours of insurable employment accumulated in the qualifying period. For example, a claimant who has 420 hours of insurable employment in the qualifying period could receive a maximum of 10 weeks of benefits, while a maximum of 36 weeks of benefits could be paid to another who had accumulated 1820 hours of insurable employment in the qualifying period. The Table incorporated in the Regulations shows the various maximum weeks of benefit which could be paid, depending on the number of hours of insurable employment that were accumulated in a qualifying period¹⁰.

A claimant residing outside of Canada under one of the situations described above, and for whom a benefit period was established, could subsequently reside in Canada. That claimant could continue to receive benefits for, at most, the maximum number of weeks as provided in the Table that is discussed above¹¹. The opposite may also occur a claimant who had established a benefit period in Canada could subsequently reside outside of Canada, under those circumstances described earlier. The maximum number of weeks for which benefits may be paid to that claimant during the benefit period is the higher number of the following: the number of weeks for which benefits have already been received in Canada, or, the number he or she otherwise would have been entitled under the previously discussed Table¹² if, he or she had permanently or temporarily resided outside of Canada in one of those locations described in the precedent paragraph, when the benefit period was established¹³.

________________________

1. see 1.1.5, "Types of Benefits";
2. EIA 9; EIA 1;
3. see Chapter 4 "Week of Unemployment";
4. EIA 13; see 1.8.0, "Waiting Period";
5. EIA 12(2);
6. EIA 12(2), Schedule I;
7. see 1.9.6, "Benefit Paid Defined";
8. EIR 55(6)(a);
9. EIR 55(6)(b);
10. EIR 55(7)(b), as well as its accompanying Table of hours required and benefit payable;
11. EIR 55(8);
12. EIR 55(6)(a);
13. EIR 55(9).

Back to amendment

1.4.3    Termination

As discussed earlier, the maximum number of weeks of regular benefit that may be paid in a benefit period will vary from 14 to 45¹. The length of the benefit period itself is 52 weeks², which includes the waiting period³ for which no benefits are payable.

Unless the benefit period could be extended, which is discussed later⁴; it is during this 52 weeks period that a claimant could receive the maximum number of weeks of benefit to which he or she is entitled. No entitlement exists once these 52 weeks have elapsed⁵, even if the claimant has not received the maximum number of weeks payable.

A benefit period would normally terminate immediately after the claimant has received the number of weeks of regular benefits to which he or she is entitled. However, where the claimant has received all the regular benefits to which he or she is entitled before the 52 weeks have elapsed, for example after 19 weeks, the benefit period will not be terminated immediately, as special benefits may become payable to the claimant⁶. In such a case where special benefits are claimed after payment of all regular benefits, the benefit period will terminate at the earlier of the following eventualities: when both regular and special benefits have been paid to a maximum of 50 weeks or, when the 52 weeks of the benefit period have elapsed⁷.

Once the benefit period has terminated, it is up to the claimant to demonstrate that he or she meets the conditions required to establish a new benefit period.

________________________

1. see 1.4.2, "Number of Weeks of Benefit"; EIA 12(2), Schedule I; EIA 10(8)(c);
2. EIA 10(2);
3. EIA 13;
4. see 1.5.0, "Extension of Benefit Period" to 1.5.7, "Allocation of Monies";
5. EIA 10(8)(a); Jurisprudence Index/basic concepts/benefit periods/duration/;
6. EIA 12(6);
7. EIA 10(8).

Back to amendment

1.4.5    Cancellation

When a benefit period or a portion of a benefit period is cancelled, it is as if it had not existed¹. Often, this is to the claimant's advantage, for example in providing a longer qualifying period² or in selecting a more advantageous commencement date for a new benefit period.

The Commission may cancel a benefit period that has terminated provided that no benefit was paid or was payable³.

At the request of the claimant, the Commission may also cancel a portion of a benefit period which precedes the first week for which benefits had been paid or payable provided the following two conditions are met, the claimant establishes a new benefit period commencing the first week for which benefits were paid or payable and, the claimant shows good cause for the delay in making the request throughout the period commencing on the day when benefit was first paid or payable and ending on the day when the request for cancellation was made. It is irrelevant whether the benefit period for which cancellation is requested has terminated or not⁴.

The Commission must inform the claimant of the advantages as well as disadvantages related to such a cancellation. Nevertheless, this must be treated in the same manner as requests for early termination⁵, that is, the claimant must not be influenced and it is the claimant who must decide what action to take.

It may happen that benefits were paid during a benefit period although they were not payable and now the overpayment must be reimbursed. In such a case where cancellation of that benefit period has been requested, it may be granted. In one case where the benefits were payable but had not been received, it had been decided that the cancellation could be granted⁶. In view of this judgment as well as the interpretation that may be given to the legislative text⁷, the Commission will acquiesce to a request for cancellation by a claimant who finds him or herself in such a situation.

The expression "benefits paid" also includes some situations where the claimant had in fact not received anything for example, when a disqualification was being served⁸. There are, however, exceptions when the serving of one or more weeks of disqualification will not prevent the cancellation of a claim; an example of this could occur where the cancellation would permit a minor attachment claimant to become a major attachment claimant who is entitled to sickness, maternity or parental benefits⁹.

________________________

1. EIA 10(7);
2. see 1.2.1, "Qualifying Period";
3. EIA 10(6)(a);
4. EIA 10(6)(b);
5. see 1.4.4, "Early Termination";
6. Jurisprudence Index/basic concepts/benefit periods/cancellation/;
7. EIA 10(6);
8. benefits deemed to have been paid: see 1.9.6, "Benefit Paid Defined"; there is one exception as far as weeks of disqualification are concerned: see 1.4.4, "Early Termination";
9. EIA 28(7);

Back to amendment

1.5.0    EXTENSION OF BENEFIT PERIOD

There are four grounds under which an extension of the benefit period may be granted. It is the claimant's responsibility to show that one applies in a particular case¹. In such a case the benefit period will be extended but the maximum number of weeks of benefits which may be paid as determined at the commencement of the benefit period² will remain unchanged. As well the claimant must comply with the entitling conditions in each of those weeks where benefits are paid. However, the length of the benefit period including any extension must not exceed 104 weeks³.

The benefit period may also be extended for the claimant who is participating in the special developmental program. The rules governing the benefit period in these situations will be discussed in a separate chapter⁴.

________________________

1. EIA 10(10);
2. see 1.4.2, "Number of Weeks of Benefit";
3. EIA 10(12);
4. see 1.1.5, "Types of Benefit".

Back to amendment

Back to amendment

1.7.2    Grounds for Disentitlement

Some of the following situations automatically result in disentitlement whereas others are not specifically defined¹:

Each of the above grounds will be discussed in detail in subsequent chapters.

Technically, the two-week waiting period is a period of disentitlement¹⁵, but in practice this is not so. Also, the fact of having worked a full week is regarded as a disentitlement although this is not specified in the legislation¹⁶. In actuality, however, these differing points do not affect a person's entitlement to benefit.

A disentitlement from benefits in general may be brought about by several concurrent reasons; then, there are really several disentitlements and no benefit can be paid as long as one of them continues.

________________________

1. EIA 6(1);
2. EIA 13 is included in the definition of "disentitled" at EIA 6(1); see chapter 4, "Week of Unemployment";
3. EIA 18(a); see chapter 10, "Availability";
4. EIA 18(b); EIR 40;
5. EIA 21(1);
6. EIA 36; EIA 2(1); EIR 52; see chapter 8, "Labour Disputes";
7. EIA 37(a); EIR 54; see 10.11.7, "Imprisonment";
8. EIA 37(b); EIR 55; see 10.11.8, "Out of Canada";
9. EIR 33; see 2.3.6, "Employees Paid by Commission";
10. EIA 50(1); EIR 26;
11. EIA 50(1); EIA 50(5); EIA 50(6);
12. EIA 31; see chapter 7, "Misconduct";
13. EIA 32; see chapter 6, "Voluntarily Leaving Employment with Just Cause";
14. EIA 33; see chapter 6, "Voluntarily Leaving Employment"; see chapter 7, "Misconduct";
15. EIA 13 is included in the definition of "disentitled" at EIA 6(1);
16. EIA 9 is not included in the definition of "disentitled" at EIA 6(1), EIA 10; EIR 29, EIR 30 and EIR 31 specify what is a full working week; see chapter 6, "Voluntarily Leaving Employment with Just Cause"; see chapter 7, "Misconduct."

Back to amendment

1.8.1    Application

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.

Another exception is applicable to parental benefits only for births and placements for adoption occurring after December 31, 2000. The legislation provides that only one waiting period must be served in respect of a new-born or adoptive child. Where a waiting period has already been served in respect of that same child by the first parent who has made a claim for maternity and/or parental benefits, the second parent claiming parental benefits can have the waiting period deferred. In the event that the second parent subsequently claims regular or sickness benefits in that same benefit period, the waiting period would then be served⁴.

Waiving the waiting period should not be confused with deferring the waiting period. In the event that the waiting period was waived for the first parent, the second parent would be required to serve the waiting period as a waiting period was not previously served in respect of the same child. The only exception to this would be in a situation where the second parent also received sick leave pay from his employer after ceasing work, thus meeting the conditions to waive the waiting period.

 In situations when the claimant works for more than one employer,if he was paid sick leave pay after ceasing work from one of these employers and had an interruption of earnings⁵ for the same employer, the conditions have been met to waive the waiting period⁶.

________________________

1. EIA 13; Jurisprudence Index/basic concepts/waiting period/;
2. EIR 40(6);
3. EIR 46;
4. EIA 23(5); see 13.1.3 "Waiting period";
5. EIR 14(2);
6. EIR 40(6).

Back to amendment

1.8.2    Commencement of Waiting Period

The waiting period almost always occurs at the very beginning of the benefit period. It must begin with the first week for which benefits would otherwise be payable to the claimant¹. As a two-week period, it covers two consecutive weeks ending on the Saturday of the following week.

Even in the absence of a waiting period, there may be cases where benefits would not otherwise be payable for the first week in a benefit period, such as when a disentitlement is imposed for the first full week. The commencement of the waiting period will be delayed for as long as the disentitlement exists² until the following week or if necessary until the first week for which benefits would be payable, had there not been a waiting period.

Similarly, there are cases where earnings allocated to the first weeks in a benefit period are greater than the benefit rate; here again the commencement of the waiting period is in effect deferred. This occurs when the amount allocated to a relevant week is equal to or greater than 125% of the benefit rate³.

In the case of sickness, maternity or parental benefits, the rules are somewhat different. The commencement of the waiting period is in effect deferred where earnings allocated are equal to or greater than the benefit rate⁴, and certain types of earnings have no effect whatsoever on the waiting period⁵. Sickness, maternity and parental benefits will be discussed in separate chapters.

It should be noted that a disqualification has no effect on the waiting period; the disqualification can be served only after the waiting period is over⁶.

________________________

1. EIA 13;
2. Jurisprudence Index/basic concepts/waiting period/;
3. EIA 19(1); EIA 19(2); see 1.9.4, "Decrease in the Benefit Rate–Intensity Rule"; EIR 35;
4. sickness: EIA 21(3); maternity: EIA 22(5); parental: EIA 23(3);
5. EIR 39(3);
6. EIA 28(1); Jurisprudence Index/basic concepts/waiting period/.

Back to amendment

1.9.1    Continuing Claim Required

Benefit will only be made to a claimant for any week in a benefit period when a request is made for their payment¹, that is, by making a claim². This must be done by a form that is approved for this purpose³, commonly called, "continuing claim⁴".

The form in use, a report card or claimant's report covers a period of two weeks; occasionally, it may cover only one week. It must be returned to the pay centre at the end of the period covered. There are two ways of filing this report when it is due, either by returning it to the HRSDC or in specific situation by using a touch tone phone and keying it in. A delay results in disentitlement⁵ unless good cause is shown for the delay⁶ and the claim can be antedated⁷.

In the cases of maternity and/or parental benefits, the claimant may opt out of completing claimant's report altogether. However, the claimant is still responsible for reporting any situations to the HRSDC that may affect entitlement to these benefits; for instance, receipt of vacation pay.

On very particular occasions, a continuing claim may be filed before the end of the period it covers and an advance payment made. This may happen at Christmas time or where unemployment is the result of a disaster at the claimant's place of work⁸.

It is to be noted that a claim is said to be renewed when, during a benefit period, a claimant applies after not having made a claim for four or more consecutive weeks⁹. A renewal claim must be made no later than in the week that follows the week for which benefits are being claimed¹⁰. Just as for a continuing claim, a renewal claim may be antedated¹¹.

________________________

1. B. Harbour (A-541-85, CUB 10633);
2. EIA 49(1);
3. EIA 50(3);
4. see 1.1.6, "Payment of Benefits";
5. EIA 50(1); EIR 26;
6. see Chapter 3, "Antedate";
7. EIA 10(4);
8. EIR 28;
9. B. Harbour, Jurisprudence Index/basic concepts/claim required/;
10. EIR 26(2);
11. EIA 10(5).

Back to amendment

1.9.2    Rate Calculation Period (RCP)

The EI Act has a provision to calculate the benefit rate by using all insurable earnings within a fixed period called the Rate Calculation Period (RCP)¹.

The RCP is the period of not more than 26 consecutive weeks in the claimant's qualifying period ending with the later of:

• the week before benefit period commencement (BPC), if the BPC is the Sunday of the week of the last interruption of earnings (IOE) or
• the week of the last IOE if the BPC is the Sunday of a week this is after the week of the last IOE and
• the week before the BPC if the claimant has an insurable employment at the beginning of that week.

Any Labour Force Attachment week defined by regulation² is skipped when establishing the RCP unless there are insurable earnings in that week. This has the effect of extending the RCP for every prescribed week without insurable earnings that falls within the RCP.

________________________

1. EIA 14(4);
2. EIR 12(2).

Back to amendment

1.9.6    Benefit Paid Defined

As previously discussed, there is a maximum number of weeks of benefit that can be paid in a benefit period¹. Any week in respect of which benefit in the amount of one dollar or more has been paid is deducted from this maximum number². Also to be deducted from this maximum are weeks for which no actual payment was made but for which benefits are deemed paid; the following is a list of such weeks:

1. benefit for a week was applied against a week of disqualification (i.e. weeks of definite disqualification according to Section 27)³;
2. benefit for a week was used to repay an overpayment⁴;
3. benefit for a week was applied against a penalty⁵;
4. benefit for a week was transferred to a government or municipal authority as a refund of assistance already provided⁶.

However, a week for which benefit has been paid or has been deemed to be paid must not be deducted from the number of weeks payable in a benefit period if, following reconsideration, the claimant was not entitled to any benefit for that week and an overpayment is established.

________________________

1. see 1.4.2, "Number of Weeks of Benefit";
2. Jurisprudence Index/basic concepts/benefits paid/defined/;
3. EIA 27; EIA 28(6);
4. EIA 42(1); EIA 42(2); EIA 47;
5. EIA 38(1); EIA 38(2);
6. EIA 42(3).

Back to amendment

1.9.7    Repayment of Benefits

The repayment clause is applied when a person's net income as defined in the Income Tax Act exceeds 1.25 times the maximum yearly insured earnings. 

For taxation year 2000 and onward,

• the net income threshold is $48,750 and applies to regular and regular fishing benefits only;
• the repayment level is set at 30%¹;
• special benefits (sickness, maternity and parental) are exempt from the repayment provisions²;
• a first time claimant is exempt from this provision.

A first time claimant is defined for these purposes to be an individual who has received less than 1 week of regular benefits in the 10 taxation years prior to the current taxation year³

• regular benefits (including regular fishing) paid for weeks beginning prior to June 30, 1996 are not considered in applying this provision⁴.

When a claimant's net income exceeds the threshold of $48,750, the claimant is required to repay the Receiver General the lesser of⁵:

a) total regular benefits paid in taxation year; and

b) the amount by which the claimant's net income for the taxation year exceeds $48,750.

When an overpayment amount that was a result of fraud is repaid, those weeks of overpayment are still considered to be weeks paid for benefit repayment⁶.

EI benefits for worksharing and employment measures⁷ are subject to repayment, however, no Part II financial assistance of any kind⁸ is included in the repayment provisions.

________________________

1. EIA 145(1);
2. EIA 145(1)(a);
3. EIA 145(2);
4. EIA 145(3);
5. EIA 145(1);
6. EIA 38(3);
7. EIA 2; EIA 24; EIA 25;
8. EIA Part II commencing at EIA 58.

Back to amendment

1.9.8    Allowable Earnings

Earnings allocated to a week following the waiting period are not deducted in full from the benefit to be paid for that week, but only that part which is in excess of 25% of the rate of benefit¹. It follows that no benefit is payable when the earnings for a week equal or exceed 125% of the benefit rate/new rate. Where the benefit rate is less than $200.00 an allowable amount of $50.00 applies. Any earnings over the $50.00 are deducted dollar for dollar.

The allowable earnings provision also applies to weeks of parental benefits payable on or after December 31, 2000 for births or placement for adoption of a child which occurred after December 31, 2000².

Sickness and maternity benefits are exceptions to these rules, and any earnings are deducted dollar for dollar³. In addition, any earnings while on parental benefits payable prior to December 31, 2000, with an actual date of confinement or arrival placement week for purposes of adoption prior to December 31, 2000 were deducted dollar-for dollar⁴.

The allowable earnings of 25% and earnings to be deducted are always rounded to the nearest dollar. A fraction that is less than one-half is disregarded, and a fraction equal to or greater than one-half is taken as a dollar⁵. For example, for a rate of $300 the allowable earnings are $75; earnings in the amount of $82.50 would result in a deduction of $8, reducing the benefits payable to $292.

When a claimant is referred to a course or program of instruction or training by the Commission or an authority designated by the Commission, earnings or allowances received under employment benefits⁶ are not deducted from unemployment benefits except in accordance with the EI Regulations⁷.

When the claimant is attending a course or program of instruction to which there has been no referral the total of any allowances paid for attending that course are deducted⁸. However any allowances paid for dependant care, travel, commuting or living away from home or disability are not deducted from unemployment benefits ⁹.

There will be cases where the claimant attends a training course and is paid employment benefits because they did not have an interruption of earnings or qualify for unemployment benefits, or because they were disentitled from benefits. If this same claimant then subsequently qualifies for regular unemployment benefits for those same weeks, the total of those earnings or allowances paid as an employment benefit will be deducted¹⁰. For this regulations to apply all three conditions therein must be present

1) the claimant originally did not have an interruption of earnings or qualify for unemployment benefits,

2) was paid employment benefits for attending a course or program of instruction or training, and

3) subsequently became entitled to regular unemployment benefits for those same weeks.

Earnings arising from a job not related to the course or employment activity continue to be deducted from benefits¹¹.

________________________

1. EIA 19(2);
2. EIA 19(2);
3. EIA 19(2)(a); 
4. EIA 23(3);
5. EIA 6(2);
6. EIA 19(4);
7. EIR 16(1);
8. EIR 16(1);
9. EIR 16(2);
10. EIR 16(3);
11. EIR 35 and EIR 36.

Back to amendment

1.9.11   Claim for More than One Type of Benefits

It is not unusual for an insured person to claim more than one type of benefits during a single benefit period. This makes it infinitely more complicated to determine the number of weeks of benefit payable to him or her. In this respect, it is necessary to come to terms with the many statutory provisions that impose specific limits, depending on the types of benefit claimed, on the maximum number of benefits payable and on the duration of the benefit period.

Where the person makes a claim for various types of benefit during a single benefit period and fulfils their entitlement conditions, it then becomes necessary to determine whether the benefits claimed are payable within that benefit period. The number and type of benefits already received the type of benefits claimed and the time elapsed since the beginning of the benefit period are all factors that must be considered.

The situation becomes all the more complicated when one of these types of benefit is linked to the person's participation in developmental programs and he or she either is employed under a work sharing agreement, participating in a job creation partnership, is attending a training course to which he or she has been referred by the authority designated by the HRSDC, or is employed under a HRSDC approved self-employment agreement.

It would not be reasonable to produce every possible scenario for the various types of benefit in a single benefit period. However, we feel that it is appropriate to recap, in six outlines, the main rules to be taken into account for the different types of benefits claimed. Each outline sets out limits 1 and 2, which determine for each type of benefits the maximum number of weeks of benefit payable and the maximum period during which those benefits may be paid respectively. The references to the Act and Regulations are included in the outlines.

By going methodically from one outline to another, and depending on the type of benefits claimed, it can be determined whether those benefits are payable. If the claimant has reached either of the two limits, he or she will no longer be entitled to that or any other type of benefits, because the benefit period has ended.

The six outlines deal with the following:

1. regular benefit;
2. special benefit;
3. work sharing benefit;
4. job creation partnership;
5. authorized training course benefit;
6. approved self-employment benefit.

Back to amendment

CHAPTER 13 PARENTAL BENEFITS

13.1.0    PAYMENT OF PARENTAL BENEFITS

13.1.1     Authority
13.1.2     Who Can Receive Parental Benefits
13.1.3     Waiting Period
13.1.4     To Care For a Child
13.1.5     Week in Which the Child is Born, or Actually Placed With the Claimant
13.1.6     When Parental Benefits are Payable
13.1.7     The Number of Weeks for Which Parental Benefits May Be Paid
13.1.8     Earnings While on Parental Benefits

13.2.0    PARENTAL BENEFITS AS A PART OF SPECIAL BENEFITS

13.2.1     Limits to the Number of Weeks of Special Benefits Payable

13.3.0    PARENTAL BENEFITS WITH RESPECT TO OTHER PROVISIONS

13.3.1     Fishing Claims
13.3.2     During a Labour Dispute
13.3.3     During the Teaching and Non-Teaching Period
13.3.4     While Disqualified or Disentitled
13.3.5     While Outside Canada
13.3.6     While Attending a Course or Other Employment Activity
13.3.7      While on Jury Service


13.1.0    PAYMENT OF PARENTAL BENEFITS

On January 1, 1984, the Unemployment Insurance legislation began to provide for the payment of benefits to a claimant, man or woman, who remained at home to care for a child who was being adopted. Three years later paternity benefits were introduced so as to provide support for the father of a newborn who stayed at home to care for his child but only under very specific conditions.

Since that time the legislation has evolved in response to jurisprudence and challenges under the Charter of Rights and Freedoms as well as recognition of changes in the labour market and in society. On November 18, 1990 adoption and paternity benefits were replaced by parental benefits which allow payment of benefits for 10 weeks with the possibility of extension to 15 weeks¹. Parental benefits were limited to 10 weeks because there is no incapacity involved and because it was determined to be an appropriate period of time to care for a new child. At the same time, eligibility was expanded so that parental benefits could be paid to either parent, or be divided between them, and may even be collected simultaneously. The intent being to allow the parents to determine who will remain at home to care for their newborn child or to care for a child they are adopting. A multiple birth or multiple adoption, for purposes of unemployment benefits, is treated as a single birth or a single adoption².

Benefits for biological or adoptive parents were further expanded where a child was born or placed in their care for the purpose of adoption on or after December 31, 2000. The changes introduced:

1. EIA 12(7);
2. EIA 12(8);
3. EIA 12(5) & (6);
4. EIA 23(5);
5. EIA 19(2)
6. EIA 6(1).

13.1.1    Authority

In order to receive parental benefits the claimant must show that he or she meets the entitlement conditions and the payment provisions of these benefits that will be explained as the chapter proceeds.

The legislative authority to pay parental benefits reads as follows¹:

Notwithstanding section 18, but subject to this section, benefits are payable to a major attachment claimant to care for one or more new-born children of the claimant or one or more children placed with the claimant for the purpose of adoption under the laws governing adoption in the province in which the claimant resides.

________________________

1. EIA 23(1).

13.1.2    Who Can Receive Parental Benefits

Parental benefits are provided for the purpose of caring for a new-born child or an adopted child and as such, may be paid to either of the biological or adoptive parents, or may be shared between the parents¹ to a combined maximum of 35 weeks of benefits².

The individual claiming the parental benefits must have experienced an interruption of earnings³, and be major attached.⁴ A new entrant or re-entrant (NERE) to the labour force can qualify for parental and other special benefits with 600 hours of insurable employment in the qualifying period⁵. The claimant must provide a declaration as to the newborn's date of birth, or, when there is an adoption, the child's date of placement for the purpose of the adoption, and the name and address of the adoption authority.

Placements made by an agency or individual authorized under the provincial adoption laws to make placements, are recognized under the EI Act as adoptions. In addition to provincial adoptions, the legislation in several provinces also covers inter-provincial and international adoptions. Parental benefits may therefore be paid to the claimant with whom a child from another province or another country has been placed for the purpose of the adoption, provided that such placement has been made in accordance with the laws that apply in the province where the claimant resides.

A placement may also be accepted when, instead of an adoption, the claimant has been granted permanent, legal custody where it is in the best interests of the child, as set out in the laws that apply in the province where the claimant resides. In other words, a situation that is effectively, but not technically an adoption may qualify for parental benefits⁶. Parental benefits are also payable in respect of a native custom adoption when the adoption is governed by the Indian Act.

________________________

1. EIA 23(4;)
2. EIA 12(4)b);
3. EIA 7; EIR 14(2);
4. EIA 23(1);
5. EIA 6
6. Jurisprudence Index/parental benefits/for the purpose of adoption/.

 

Back to amendment

13.1.3    Waiting Period

As already indicated parental benefits are unique in that they may be paid to either of the biological or adoptive parents or may be shared between the parents¹. Like all claims for unemployment benefits a waiting period must be served before parental benefits can be paid². 

The waiting period may be waived if, after having ceased work, the claimant received sick leave paid by his employer³ or when the claimant works for more than one employer, if he was paid sick leave pay after ceasing work from one of these employers and had an interruption of earnings for the same employer. Additionally moneys payable by an employer as parental leave pay are not considered to be earnings in the waiting period⁴.

The legislation provides that only one waiting period must be served in respect of the same child. In situations where the first parent made a claim for benefits, served the waiting period and during this benefit period, claimed maternity and/or parental benefits, the waiting period can be deferred for the second parent claiming parental benefits⁵.

However, the deferred waiting period for the second parent would be served following receipt of parental benefits in situations where regular or sickness benefits are subsequently claimed. Furthermore, when parents decide to share the parental benefits and apply for benefits at the same time, they may choose which one will serve the waiting period. The other parent may then have the waiting period deferred.

It should be noted that a claimant is only required to serve one waiting period when claiming benefits in respect of one new-born or adoptive child. In the event that a second benefit period is required to ensure the claimant can receive all parental benefits the legislation allows, the waiting period can be deferred on the second claim.

Waiving the waiting period should not be confused with deferring the waiting period. In the event that the waiting period was waived for the first parent, the second parent would be required to serve the waiting period as a waiting period was not previously served in respect of the same child. The only exception to this would be in a situation where the second parent also received sick leave pay from his employer or when the claimant works for more than one employer, if he was paid sick leave pay after ceasing work from one of these employers and had an interruption of earnings for the same employer, the conditions have been met to waive the waiting period.

________________________

1. see 13.1.2, "Who Can Receive Parental Benefits";
2. EIA 13;
3. EIR 40(6);
4. EIR 39(3)(b);
5. EIA 23(5)

13.1.4    To Care For a Child

Parental benefits are payable to one or both parents¹

to care for one or more new-born children . . . .or one or more children . . . . . . placed with the claimant for the purpose of adoption . . . .

Parental benefits therefore provide a means of financial support that allows a parent(s) to be away from his or her work to care for the child.

The parental legislation has evolved over the years to where it no longer makes any reference to "remaining at home" to care for the child. It is unreasonable to expect a parent to cease all regular activity and simply remain at home for 35 weeks doing nothing more than caring for the child. While the intent of the legislation is to allow the parent to bond with and care for the child, the requirement of caring for the child is met when the parent is providing for the needs of the child. This means a claimant may leave the home for periods of time and continue to receive parental benefits, whether the child is with the parent during these activities or not. A reasoned approach should be taken and each case should be decided on its own merit having regard for the intent to allow a parent to care for the child.

It has been argued that a child who is admitted to hospital can not be considered to be in the care of the parent, therefore no entitlement to parental benefits exists. The reality of this situation is that the parent continues to be responsible for the child. Furthermore, in many cases the parent's presence and assistance is specifically requested by either the doctor or the hospital. This same reasoning holds true for those claimants who decide to take a vacation while in receipt of parental benefits. Because payment of these benefits has no tie to availability, a claimant can indeed be on vacation and be entitled to parental benefit. Similarly, the reason for separation from employment is not a factor in determining entitlement to parental benefits as any disqualification imposed on a claim will be deferred or suspended during receipt of parental benefits².

________________________

1. EIA 23(1).
2. See 13.3.4 While disqualified or Disentitled

13.1.5    Week in Which the Child is Born, or Actually Placed With the Claimant

The legislation provides that payments of parental benefits can only begin¹

. . . with the week in which the child or children of the claimant are born or the child or children are actually placed with the claimant for the purpose of adoption . . . .

In the case of a biological child the parent(s) may claim parental benefit from the week in which the child is born.

In the case of an adoption, placement for the purpose of adoption is distinguished from the adoption itself. The legislation recognizes this distinction and provides that parental benefits in respect of an adoption, are payable beginning with the week in which the child is actually placed with the claimant for the purpose of adoption, not from the day that the adoption certificate is issued. The adoption process covers a period during which the legal rights and obligations normally in place between the biological parents and the child cease to exist and are replaced by similar rights and obligations between the adoptive parent(s) and the child.

In cases of international adoption, the adoptive parent may be required to personally bring the child from the country where that child is located, or even spend a certain amount of time there in order to comply with the adoption rules of that country. The adoptive parent who is in another country for the purpose of adoption may receive parental benefits starting at the time that the child is actually placed with the claimant, that is, starting at the time that the child is physically under the claimant's care. The placement must be made in accordance with the applicable provincial laws.

Jurisprudence² has held that the child cannot be considered as actually placed for the purpose of adoption unless the adoption process has begun. For example where foster care is later converted to adoptive custody the parental benefit period would begin in the week in which, according to the adoption laws of the province the claimant resides in, the adoption process began; not the date that the child was physically placed in the claimant's care as a foster child. In another example the spouse of the biological parent adopts the child after a year or two of the family living together in a household. The concept of actually placed with the claimant for the purpose of adoption only begins with the start of the adoption process, even though the child has lived with the adoptive parent for a lengthy period.

A declaration signed by the claimant identifying the adoption authority and the date of placement is sufficient proof that an adoption is proceeding. Proof of the placement is requested only in circumstances in which questions arise with respect to the adoption.

________________________

1. EIA 23(2)(a);
2. Jurisprudence Index/parental benefits/actually placed/.

13.1.6    When Parental Benefits are Payable

Parental benefits are payable at any time during the benefit period and parents have a 53 week window to receive these benefits¹. These weeks do not have to be consecutive. Of course even when the claimant is within this window, no benefits are paid if the claim has exhausted by duration. Parental benefits are not payable or cease to be payable on the death of the child.

The 53 week window to receive parental benefits begins with the week in which the child is born or placed with the claimant for purposes of adoption and ends 52 weeks after the week of birth or actual placement.

Parental benefits cannot be paid in advance of the child's birth or in advance of the actual placement of the child.

________________________

1. EIA 23(2)  

Back to amendment

13.1.7    The Number of Weeks for Which Parental Benefits May Be Paid

A qualified claimant¹ may receive up to 35 weeks² of parental benefits in a benefit period. Furthermore, the global maximum number of weeks of parental benefits paid in respect of the same child cannot exceed 35. As a result of that when the parents share these benefits the total number of weeks they can receive between them is 35³. Claimants making application for parental benefits must provide the name and social insurance number of the other parent for cross-reference purposes.

________________________

1. see 13.1.2, "Who Can Receive Parental Benefits";
2. EIA 12(4)(b);
3. EIA 23(4)

13.1.8    Earnings While on Parental Benefits

In the past when claiming special benefits, earnings that were allocated to any week following the waiting period were deducted dollar for dollar from benefits¹. When parental benefits were extended to 35 weeks, it was recognized that a greater flexibility was necessary to allow parents to retain some work attachment while in receipt of these benefits and at the same time allow businesses to benefit from their employee's expertise. This could also help ease the employee's transition back into the workforce after time spent home with a young child.

To facilitate this, the allowable earnings provisions were extended to parental benefits. Claimants may earn up to 25% of their weekly benefit rate or where the benefit rate is less than $200 without any deduction from benefits².  Earnings in excess of the 25% or $50 will be deducted dollar for dollar.

________________________

1. EIA 23(3;
2. EIA 19(2)

Back to amendment

13.2.0    PARENTAL BENEFITS AS A PART OF SPECIAL BENEFITS

Parental benefits, together with those benefits paid by reason of pregnancy or of illness, injury, or quarantine commonly referred to as maternity or sickness benefits, are known collectively as special benefits and as such, have specific requirements for payment¹ as well as limits to the number of weeks payable.

A qualified claimant may be paid special benefits at any time in the benefit period. To ensure consistency and stability in the payment of special benefits, entitlement is not limited by the unemployment rate, rather the maximum number of weeks for which special benefits may be paid has been set by legislation². These parameters are explained in the following section.

________________________

1. see 11.2.0, "First Entitlement Condition: To Be Unable to Work"; see 11.3.0, "Second Entitlement Condition: To Be Otherwise Available for Work"; see 12.1.1, "Authority"; see 12.1.2, "Who Can Receive Maternity Benefits"; see 13.1.1, "Authority"; see 13.1.2, "Who Can Receive Parental Benefits";
2. EIA 12(5); EIA 12(6).  

Back to amendment

13.2.1    Limits to the Number of Weeks of Special Benefits Payable

Each type of special benefits has an individual maximum number of weeks payable per benefit period. Individual maximums are: for sickness benefits 15 weeks; for maternity benefits 15 weeks; and for parental benefits 35 weeks.

Special benefits may be paid in any combination, provided the claimant proves entitlement for each type of benefit, for a maximum total payable of 50 weeks¹. For example a qualified claimant could receive 5 weeks sickness, 15 weeks maternity and 30 weeks parental benefits, provided she is able to prove entitlement to each type of benefit.

A major attachment claimant who qualifies for special benefits as a result of the regulatory exception² can receive special benefits only.

________________________

1. EIA 12(5);
2. EIR 93

In situations where the birth or placement for adoption of a child or the first day of incapacity is prior to December 31, 2000, refer to the legislation and Digest principlesas previously read.

13.3.0    PARENTAL BENEFITS WITH RESPECT TO OTHER PROVISIONS

A claim for parental benefits is unique in the impact that certain provisions of the EI Act have during the period that the claimant is in receipt of parental benefits. These situations are covered in the sections that follow.

13.3.1    Fishing Claims

Individuals who earn their insurable hours in fishing can establish a claim for parental benefits based on their insurable employment in fishing. Fishers will be entitled to parental benefits if they are major attached, that is have $3760 or more of insurable earnings as a fisher in the qualifying period¹.

Like other claimants, fishers are entitled to receive special benefits to a maximum of 50 weeks².

________________________

1. EIR (Fishing) 1(1) & 8(17);
2. EIR (Fishing) 8(18).

In situations where the birth or placement for adoption of a child is prior to December 31, 2000, refer to the legislation and Digest principles as previously read.

 

Back to amendment

13.3.2    During a Labour Dispute

A claimant who is subject to a disentitlement because of a labour dispute¹ at his or her place of employment may have that disentitlement suspended² in order to receive parental benefits subject to proving entitlement to parental benefit.

Before the disentitlement can be suspended, the claimant who would otherwise be entitled to parental benefits were it not for the labour dispute, must prove that his or her absence from work was foreseen and that arrangements with the employer to be off work to care for an expected or adoptive child, had begun before the start of the labour dispute³.

A claimant who is in receipt of parental benefits when a stoppage of work occurs will not be affected by the labour dispute during the period that he or she is in receipt of parental benefits. However a disentitlement may be in order when the parental benefit period ends if the claimant is unable to resume his or her previous employment because of a stoppage of work attributable to a labour dispute⁴.

________________________

1. EIA 36(1);
2. EIA 36(3);
3. EIA 36(3);
4. EIA 36(1); see 8.10.4, "Period Suspended."

13.3.3    During the Teaching and Non-Teaching Period

Teachers may receive parental benefits during both the teaching and non-teaching period¹ provided all entitlement criteria for the payment of parental benefits is met.

________________________

1. EIR 33.

13.3.4    While Disqualified or Disentitled

A disqualification or certain disentitlements will not prevent the payment of parental benefits because the Act provides for the deferral¹ or suspension² of any disqualification and for the suspension of certain disentitlements³ during the period that the claimant is in receipt of parental benefits.

________________________

1. EIA 28(5);
2. EIA 30(4);
3. EIA 36(3); EIA 34.

13.3.5  While Outside Canada

A claimant in receipt of parental benefits is not disentitled solely for being out of the country¹. This means that the claimant who is not in Canada may be entitled to parental benefits when his or her reason for being away from work is to care for the child, and being outside the country is secondary to that fact.

As stated earlier²,"to care for a child" should not be interpreted rigidly; each case should be decided on its own merit, having care for the intent of the legislation which is to allow a parent to be away from work to care for the child.

________________________

1. EIR 55(4);
2. see 13.1.4, "To Care For a Child."

13.3.6    While Attending a Course or Other Employment Activity

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. However, an individual claiming parental benefits is not expected to cease all regular activity and simply remain at home to care for the child. As long as the parent is providing for the needs of the child, it is acceptable to attend a course of instruction or other employment activity while in receipt of parental benefits, as availability is not a factor in determining entitlement to receive parental benefits. The individual can still be considered to be taking care of their child when she/he does so outside the hours of this other activity. 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. The circumstances of each case must be considered individually.

There are situations where it may be determined that a claimant is not meeting the condition of caring for the child. An example of this would be where a father leaves the child with the mother in Ottawa and moves to Vancouver to attend a course, thereby not seeing the child for months. The father in that case would have a difficult time proving he was taking care of the child within the meaning of the Act. Again, each case must be determined on its own merit.

________________________

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

13.3.7    While on Jury Service

Individuals called for jury service while in receipt of unemployment benefits may become engaged in jury service and continue to be entitled to benefit¹.

A claimant who will be on jury service for a full week or more while in receipt of parental benefits may request regular benefits for the period in question and defer the parental benefits to the end of the jury service. Of course to receive parental benefits at that point the claimant would still have to be within the 52-week window and there must be weeks remaining on the claim, that is, the claim has not been exhausted either by entitlement or by duration.

When only part of the week² is spent on jury service parental benefits may be payable. Each case must be decided on its own merit.

________________________

1. EIA 18(c);
2. see 13.1.4, "To Care For a Child."

Back to amendment

12.1.0  PAYMENT OF MATERNITY BENEFITS

12.1.1  Authority
12.1.2  Who Can Receive Maternity Benefits
12.1.3  Waiting Period
12.1.4  The Number of Weeks for Which Maternity Benefits May Be Paid
12.1.5  When Maternity Benefits Are Payable

12.2.0  MATERNITY BENEFITS AS A PART OF SPECIAL BENEFITS

12.2.1  Limits to the Number of Weeks of Special Benefits Payable
12.2.2  Sickness Benefits Within the Maternity Period

12.3.0  MATERNITY BENEFITS WITH RESPECT TO OTHER PROVISIONS

12.3.1  Regular Benefits Within the Maternity Period
12.3.2  Fishing Claims
12.3.3  During a Labour Dispute
12.3.4  During the Teaching and Non-Teaching Period
12.3.5  While Disqualified or Disentitled
12.3.6  While Outside Canada
12.3.7  While Attending a Course or Other Employment Activity
12.3.8  While on Jury Service 

12.1.0    PAYMENT OF MATERNITY BENEFITS

When pregnancy benefits were first introduced in 1971 payment of these benefits was related to child bearing and intended for the mother during the period surrounding the birth of the child. The principle underlying these benefits was and continues to be that the mother should be protected from an earnings loss caused by her physical inability to work or to seek work in the weeks surrounding the birth. Since their initial introduction in 1971 maternity benefits have become more flexible so as to respond to the changing employment patterns of women and general societal changes as well. Nevertheless, maternity benefits continue to be paid to compensate for a period of physical inability to work associated with pregnancy and childbirth and remain distinct from parental benefits that are paid for childcare.

12.1.1    Authority

In order to receive maternity benefits the claimant must show that she meets the entitlement conditions and the payment provisions of these benefits that will be explained as the chapter proceeds.

The legislative authority to pay maternity benefits reads as follows¹:

Notwithstanding section 18, but subject to this section, benefits are payable to a major attachment claimant who proves her pregnancy.

________________________

1. EIA 22(1).

12.1.2    Who Can Receive Maternity Benefits

Maternity benefits are payable to the mother¹, who has experienced an interruption of earnings², is major attached, that is, with 600 or more hours of insurable employment in the qualifying period³ and who provides to the Commission a signed statement attesting to her pregnancy and declaring her expected or actual date of confinement⁴.

It should be noted that in the case of a surrogate pregnancy, it is the surrogate mother who experiences the physical inability to work associated with pregnancy and childbirth and as such is entitled to maternity benefits.

________________________

1. EIA 22(1); EIR 93;
2. see 2.3.1, "Special Benefits";
3. EIA 6; EIA 7.1;
4. EIR 41(1)(a)(b).

 

Back to amendment

12.1.3    Waiting Period

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. In situations when the claimant works for more than one employer, if he was paid sick leave pay after ceasing work from one of these employers and had an interruption of earnings3 for the same employer, the conditions have been met to waive the waiting period4.

________________________

1. EIA 13;
2. EIR 40(6).
3. EIR 14(2)
4. EIR 40(6)

12.1.4    The Number of Weeks for Which Maternity Benefits May Be Paid

A qualified claimant may receive up to 15 weeks of maternity benefits¹ per benefit period, for a single pregnancy². These weeks need not be consecutive and can be interrupted by receipt of another type of benefit.

________________________

1. EIA 12(3)(a);
2. EIA 12(4)(a).

12.1.5    When Maternity Benefits Are Payable

The legislation¹ has set the specific time frame within which maternity benefits are payable as the period:

(a)    that begins the earlier of

(i) eight weeks before the week in which her confinement is expected, and
(ii) the week in which her confinement occurs; and

(b)    that ends 17 weeks after the later of

(i) the week in which her confinement is expected, and
(ii) the week in which her confinement occurs.

This window for payment of these benefits allows the claimant to determine when, within this legislated time period, maternity benefits will begin or end.

In the event the baby is hospitalized the window for payment of maternity benefits may be extended by the number of weeks that the child is in hospital². However, any such extension cannot exceed the period of 52 weeks following the week of the baby's birth³. It should be noted that an extension of the maternity window does not have the effect of extending the benefit period that ends in the usual manner⁴.

________________________

1. EIA 22(2);
2. EIA 22(6);
3. EIA 22(7);
4. EIA 10(2).

12.2.0    MATERNITY BENEFITS AS A PART OF SPECIAL BENEFITS

Maternity benefits, together with those benefits paid by reason of illness, injury, or quarantine or provided for the purpose of caring for a new-born child or an adopted child commonly referred to as sickness benefits and parental benefits, are known collectively as special benefits and as such have specific requirements for payment as well as limits to the number of weeks payable.

A major attached claimant may be paid special benefits at any time in the benefit period. To ensure consistency and stability in the payment of special benefits, entitlement is not limited by the unemployment rate, rather the maximum number of weeks for which special benefits may be paid has been set by legislation¹. These parameters are explained in the following section.

________________________

1. EIA 12(5); EIA 12(6).

12.2.1    Limits to the Number of Weeks of Special Benefits Payable

Each type of special benefits has an individual maximum number of weeks payable per benefit period Individual maximums are: for maternity benefits 15 weeks; for parental benefits 35 weeks; and for sickness benefits 15 weeks.

Special benefits may be paid in any combination for a maximum total of 50 weeks¹, where the birth or placement for adoption of the child is December 31, 2000 or greater, provided the claimant proves entitlement for each type of benefit. For example, a qualified claimant could receive 5 weeks sickness, 15 weeks maternity and 30 weeks parental benefits, provided she is able to prove entitlement to each type of benefit.

_______________________

1. EIA 12(5).

12.2.2    Sickness Benefits Within the Maternity Period

A woman who is pregnant may choose and be entitled to sickness benefits during the maternity period. Although pregnancy and childbirth are not considered to be illnesses, complications with respect to either may be. To receive sickness benefits the claimant must prove she is unable to work because of complications due to her pregnancy or childbirth or because of an unrelated illness and that except for her inability to work, she would be otherwise available¹. Once inability to work is proven this claim is dealt with according to the principles applicable to any person requesting sickness benefits² with one exception. That exception is that these claimants are not required to prove incapacity for the actual day of the child's birth and for the fourteen calendar days immediately following the child's birth. The fact of the birth is considered to be adequate proof and the claimant may be paid sickness benefit for this period. Normally this issue will arise only when the claimant is collecting regular benefits during her period of maternity.

A pregnancy that is terminated within the first nineteen weeks of that pregnancy is an illness for the purposes of the Act³ and must be treated as such.

________________________

1. EIA 18;
2. see chapter 11, "Sickness Benefits"; 
3. EIR 40(5).

12.3.0    MATERNITY BENEFITS WITH RESPECT TO OTHER PROVISIONS

A claim for maternity benefits is unique in the impact that certain provisions of the Employment Insurance Act have during the period that the claimant is in receipt of maternity benefits. These situations are covered in the sections that follow.

12.3.1    Regular Benefits Within the Maternity Period

The fact that a woman is pregnant or has given birth does not automatically render her unavailable for and incapable of work. On the contrary, she can request and be paid regular benefits within her maternity period (or even move back and forth between regular and maternity benefits), provided of course, that during the period she claims regular benefits she is able to prove her availability and capability for work¹. The principles regarding availability in cases of maternity are found in another chapter of this Digest.²

Regular benefits are not payable to the claimant who qualifies for maternity benefits as a result of the regulatory exception³. She can receive special benefits only.

________________________

1. EIA 18(a);
2. see 10.10.4, "Pregnancy and Childbirth";
3. EIR 93.

12.3.2    Fishing Claims

Individuals who earn their insurable hours in fishing can establish a claim for maternity benefits based on their insurable employment in fishing. A fisher woman  will be entitled to maternity benefits if she is major attached, that is, has $3760 or more of insurable earnings as a fisher in the qualifying period¹.

Like other claimants, fishers are entitled to receive special benefits to a maximum of 50 weeks².

________________________

1. EIA 22(1) EIR (Fishing) 1(1);
2. EIR (Fishing) 8(18); see 12.2.1, "Limits to the Number of Weeks of Special Benefits Payable."

12.3.3    During a Labour Dispute

A claimant who is subject to disentitlement because of a labour dispute¹ at her place of employment may have that disentitlement suspended² in order to receive maternity benefits subject to proving entitlement to maternity benefits.

Before the disentitlement can be suspended, the claimant who would otherwise be entitled to maternity benefits were it not for the labour dispute, must prove that her absence from work was foreseen and that arrangements with the employer to be off work due to an expected child had begun before the start of the labour dispute³.

A claimant who is in receipt of maternity benefits when a stoppage of work occurs will not be affected by the labour dispute during the period that she is in receipt of maternity benefits. However a disentitlement may be in order when the maternity benefit period ends if the woman is unable to resume her previous employment because of a stoppage of work attributable to a labour dispute⁴.

________________________

1. EIA 36(1);
2. EIA 36(3);
3. EIA 36(3);
4. EIA 36(1); see 8.10.4, "Period Suspended."

12.3.4    During the Teaching and Non-Teaching Period

Teachers may receive maternity benefits during both the teaching and non-teaching period¹ provided all entitlement criteria for the payment of maternity benefits is met.

________________________

1. EIR 33.

12.3.5    While Disqualified or Disentitled

A disqualification or certain disentitlements will not prevent the payment of maternity benefits because the Act provides for the deferral¹ or suspension² of any disqualification and for the suspension of certain disentitlements³ during the period that the claimant is in receipt of maternity benefits.

________________________

1. EIA 28(5);
2. EIA 30(4);
3. EIA 36(3); EIA 34 .

12.3.6    While Outside Canada

By regulation ¹ a claimant in receipt of maternity benefits is not disentitled solely for being out of the country. This means that the claimant who is not in Canada may be entitled to maternity benefits.

________________________

1. EIR 55(4).

12.3.7    While Attending a Course or Other Employment Activity

A claimant is considered to be unemployed, capable and available while attending a course or other employment activity to which she was referred by an authority of the Commission¹. Therefore, unless the claimant withdraws or is removed from the course or other employment activity she may continue in receipt of benefits under this section of the Act ² during her maternity period.

A claimant who is in receipt of maternity benefits may attend a course on her own initiative and continue to receive maternity benefits because the provisions of the Act regarding availability³ do not apply to maternity claims ⁴ .

________________________

1. EIA 25(1);
2. EIA 25(1) ;
3. EIA 18;
4. EIA 22(1).

12.3.8    While on Jury Service

Individuals who are called for jury service while in receipt of maternity benefits may become engaged in jury service and continue to be entitled to maternity benefits ¹ or can choose to switch to regular benefits during the period of jury service. However jury service is not a reason that gives rise to an extension of the maternity benefit period and the claimant should be so advised.

________________________

1. EIA 18(c).

Back to amendment

Archived April 2006

1.4.4    Early Termination

A claimant may request early termination of the benefit period for the purpose of establishing a new one immediately. This course of action may be advantageous when, for example the benefit rate could become higher or the claimant could become a major attachment¹. The HRDC must inform the claimant of the advantages and disadvantages related to such a termination, but must not decide for the claimant nor influence his or her decision. This decision must be taken by the claimant himself or herself. What may be advantageous at one point in time could very well be the opposite in the future² .

Where the claimant requests an early termination of the benefit period, the request will be granted provided that the claimant makes a new initial claim and fulfills the qualifications to establish a new benefit period³. In such case, the benefit period is terminated on the Saturday preceding the commencement of the new benefit period ⁴. If no benefits were paid or payable during that period which was terminated, then the benefit period may be cancelled ⁵. The claimant's decision for early termination of the benefit period is considered final even though it may later prove to be a disadvantage.

The claimant's request to terminate his or her established benefit period is to be considered as having been made at an earlier date if the claimant shows that good cause existed for his or her delay in making that request. The good cause must exist throughout the elapsed period between that earlier date and the date the request was made. It is irrelevant whether the said benefit period has terminated or not ⁶ . Furthermore, it is irrelevant whether benefits have been paid after the effective date of the early termination. In such a case, there will be an adjustment in the payment of benefits. As well, because that portion of the benefit period which precedes the effective date of the early termination will become a terminated benefit period, it may be cancelled if no benefits were paid or payable during that period⁷. It is possible to retroactively terminate an established benefit period.

In order to determine whether the claimant's reasons for the delay equate to good cause, the principles concerning antedating, as found in another chapter ⁸ , are to be followed. More precisely, to prove good cause existed the claimant must show that he or she, under those circumstances, acted as would have a reasonable person desirous of fulfilling his or her rights and obligations as required under the Act ⁹ .

Any week of disqualification that had not been served when the benefit period terminated will be carried forward to the new benefit period. Any remaining disqualification that is to be served will be carried forward to any benefit period subsequently established in the two years after the date of the event which gave rise to the disqualification ¹⁰ . An exception to the carry-over will be when the claimant has accumulated at least 700 hours of insurable employment since the event that gave rise to the disqualification ¹¹. Furthermore, the weeks for which special benefits ¹² are payable will not be used to serve the disqualification ¹³. Further details on the effects of a disqualification are found elsewhere ¹⁴.

________________________

1. see 1.2.10, "Categories of Claimants";
2. Jurisprudence Index/basic concepts/benefit periods/cancellation/;
3. EIA 10(8)(d); 
4. EIA 10(3);
5. EIA 10(6)(a);
6. EIA 10(9);
7. EIA 10(6)(a);
8. see chapter 3, "Antedate";
9. W. Albrecht ( A-172-85, CUB 10026); Jurisprudence Index/antedate/ignorance of the law/duty to enquire/;
10. EIA 28(3);
11. EIA 28(4);
12. see 1.1.5, "Types of Benefits";
13. EIA 28(5);
14. see 1.6.2, "Effect of Disqualification."

5.13.13   Requalifier Exemption for Pension Earnings

Pensions, because they continue to be paid for life, are different than all other types of earnings. To consider the same pension as earnings on every claim for the entire life of the claimant could result in inequities. Claimants would be paying premiums on post-retirement employment. However, they would not be able to collect any EI benefits or be able to only collect reduced benefits, should they become unemployed, due to the allocation of their pension. Therefore, although pension income is earnings, these earnings can be exempted from allocation once certain conditions are met.¹ However, the benefit rate of claimants who meet these requalifier exemption conditions will be calculated in the same manner as any other claimant.

Pension income is no longer to be considered as earnings on any claim, if the claimant can establish ALL four of the following elements:  after the date on which the pension became payable,  and while the claimant received those pension moneys,  the claimant has accumulated the number of insured hours required to establish a claim,2 and the benefit period established for the claimant is based on insured hours that include these hours.

In determining whether the claimant can meet the requalifier exemption for a particular pension on a particular benefit period, the insured hours used to establish THAT benefit period must be examined. If the claimant cannot meet the requirements on that claim, the possibility of cancellation or termination should be explored to determine if the requalifier exemption for that pension can be met on a new claim if the claimant has any pension requalifier insured hours.

Each pension received by the claimant is considered separately and tested for requalification individually, unless the pensions started simultaneously. Pension start dates are critical to this determination. The same insured hour may be counted as a pension requalifier insured hour for more than one pension, as long as each of the pensions was paid or payable during that period.

An employment pension that includes a pension bridging benefit equal to future CPP or QPP entitlement may meet the requalifier exemption. However, when a CPP or QPP pension actually becomes payable, this pension is a separate pension that must be tested on its own to determine whether it meets the requalifier exemption.

To be considered as a pension requalifier insured hour, it is not sufficient that the insured hours occur after the retirement date. The hours must have been earned after the start date of the payment of the pension OR after the start date that pension became payable. In addition, it is not sufficient that the insured hours be earned after the start date of the pension, a pension requalifier insured hour must have been earned while the pay out of the pension continued. It is not essential that the claimant actually have received the pension during this period if payment was delayed, just that the pension was payable. This would allow the claimant, should he or she obtain subsequent employment, to be able to accumulate pension requalifier insured hours even if the actual payment of the pension, that the claimant had applied for, was delayed due to administrative difficulties.

The requalifier exemption also applies to pensions that are paid in a lump sum and have been converted to an annuity. In these cases, the pension requalifier insured hours must have been accumulated after the lump sum was payable.

It does not matter whether a pension requalifier insured hour is a fishing or regular insured hour, provided that their number is the one required for the minimum qualification for benefit; that they were accumulated after the start date of the pension; and that a new benefit period is established for the claimant. Fishing insured hours for regular claims are obtained by using a formula that converts insurable earnings to insurable hours.³ For fishing claims it is not insured hours but insured earnings from self-employment in fishing that determines whether the pension requalifier exemption is met.⁴ Pension requalifier insured hours may be earned with a different employer or with the employer who is paying the pension.

Under some pension plans, once a pension is payable to an employee, the pension amount (unless it is indexed to the cost of living or is an escalating annuity) remains the same amount for the life of the employee. Should subsequent employment be obtained, there is no suspension or reduction in the amount of the pension. Therefore, for employees receiving a pension under these types of pension plans, any insured hour during which the pension was paid or was payable can be counted towards pension requalifier insured hours. If enough pension requalifier insured hours are accumulated to be able to qualify for benefits, the pension received during the period of employment is exempt from consideration as earnings.

However, some pension plans have a provision that suspends payment of a pension during any subsequent period of employment covered under the same pension plan or with the same employer or a subsidiary of that employer. Some pension plans may only apply the suspension after a certain period of re-employment. For any such week where pension entitlement ceases or is suspended, the requirement of a pension requalifier insured hour cannot be met.⁵

Other plans may require the individual to repay the pension received and resume making pension contributions on the new employment if subsequently re-employed in the same organization. However, any period of required pension repayment can no longer be counted towards pension requalifier insured hours. In some cases the employer may forgo repayment of the pension received during the entire period of re-employment, or for some part of the period re-employed, and still allow the employee once again to contribute to the same pension plan. Any period in the qualifying period, where the claimant received both his or her pension and worked in insured employment, would count towards pension requalifier insured hours, even if he or she was again contributing to the pension plan. Nonetheless, the only portion of the pension that could be exempted would be the amount of the pension that was paid while the claimant was employed. Any additional pension payable, due to the subsequent employment, would be allocated.⁶

Simply transferring pension credits from one pension plan to another cannot meet the requirements of pension requalifier insured hours. With a transfer of pension credits, no pension is paid or is payable to the employee, as these credits will support the payment of a pension at some later date when the employee finally retires.

All CPP and QPP retirement pensions⁷ can benefit from the requalifier exemption, should subsequent employment be obtained AFTER the payment of the pension commences. Once CPP and QPP commence, no further contributions are made to the plans. Any insured hours during which CPP or QPP was paid or payable can be counted as a pension requalifier insured hours. However, CPP and QPP pensions may be cancelled by the recipient within six months of the first payment. If the pension is cancelled,⁸ all benefits received must be repaid and contributions must be made on any new pensionable earnings. If the CPP or QPP is cancelled by the claimant, any pension requalifier insured hours previously granted for the CPP or QPP pension will have to be revoked.

The requalifier exemption can be met during periods where there is no entitlement to moneys from the Program for Older Worker Adjustment (POWA) as the wages from the subsequent employment are too high. Under the terms of POWA, individuals are allowed to earn a set amount before there is any effect on their POWA payments. If a claimant obtains employment with wages higher than permitted under that program, deductions may result in no POWA payments while employed. This is not the same as cases where the pension is suspended or pension entitlement temporarily ceases under the terms of the pension plan when the claimant returns to work for the same employer or a subsidiary.⁹ It is considered that the person still keeps the legal right to the POWA pension and it remains in effect during the time he is working. Although no payment is actually paid, the POWA pension is considered payable.

Disability pensions, which convert to retirement pensions at a specified age under the terms of the pension plan, no longer have the character of a disability pension. These pensions have become retirement pensions.¹⁰ As such, they are considered as earnings from the point that they convert to the retirement pension and are allocated unless the claimant meets the pension requalifier conditions. Since it is the nature of the pension which has changed, not the pension plan source nor the period paid, any insured weeks accumulated while in receipt of the disability pension counts as a pension requalifier insured hours.

If a claimant has obtained a requalifier exemption of a pension amount, any subsequent increases of that pension due to the indexing provisions of the pension plan would also be exempted.

________________________

1. EIR 35(7)(e);
2. the number of insured hours required to establish a claim is set out in EIA 7 and EIA 7.1;
3. EIR (Fishing) 13;
4. EIR (Fishing) 2, EIR (Fishing) 8, EIR 35(7)(e);
5. D. MacKean (A-351-94, CUB 24592);
6. CUB 22891;
7. this applies to both the early retirement pension payable on request between the ages of 60 and 64, and the pension payable at the normal retirement age of 65. One of the conditions for the receipt of a early CPP or QPP pension is that the applicant have ceased or substantially ceased employment;
8. unless the cancellation is of an early retirement CPP or QPP pension in favour of establishing a CPP or QPP disability pension. In these cases, since the disability pension is always higher, CPP or QPP would issue a cheque for the disability pension from when the retirement pension commenced, after deducting any CPP or QPP retirement pension already paid;
9. CUB 18483, and CUB 22554;
10. CUB 14562.

5.13.5.2  Pension Bridging Benefits

Periodic payments paid out of a pension fund may include something called a pension bridging benefit . Pension bridging benefits may also be paid out of general company revenue along with a company pension. ¹ Although pension bridging benefits are a type of bridging benefits, not all bridging benefits paid by an employer are pension bridging benefits.

Bridging benefits allow an individual earlier access to moneys that normally are only payable at some future date. Bridging benefits, in the form of additional compensation, allow for an easier transition between an individual's present and future financial circumstances. The payment of bridging benefits will cease when the point of planned future compensation is reached.

Apension bridging benefit is an additional financial payment, designed to allow an individual to move from one level of pension compensation (a pension payment from his or her employer) to a future level of higher pension compensation (such as the pension plus CPP/QPP). It is structured so that the total moneysreceived each month, during the entire period, are constant. Pension bridging benefits are paid along with a pension to top-up that pension. This top-up may be necessary as the pension that is payable may have been reduced due to forced early retirement. Pension bridging benefits may also act as an incentive to early retirement.

Apension bridging benefit has the following characteristics:  it is paid periodically;  the individual who is receiving it has reached retirement age (either early or normal);  it is paid to complement another pension to which the employee is entitled; 2  the amount that is being paid as the pension bridging benefit is approximately at the same level as the additional pension that is to be paid in the future; and  if it is paid out of general company revenues, should the employee die, his or her estate will not receive the remainder of these payments as there are no longer any future pension benefits to bridge.

The best example of a pension bridging benefit is the payment of an amount equal to future CPP or QPP entitlement and Old Age Security Benefit entitlement. This pension bridging benefit is paid in addition to the basic pension already payable to the employee, and is paid until the CPP or QPP pension and the Old Age Security Benefits commence.

The fact that Old Age Security Benefits are not pension earnings ³ cannot change the nature ofpension bridging benefits that are paid to compensate the employee for that future entitlement. Pension bridging benefits are moneys intending to compensate the employee, at a level equivalent to what the future Old Age Security Benefits will be, until the employee reaches entitlement to them. The portion of the payment by the employer or the pension fund, to compensate at the level of Old Age Security Benefits, becomes a retirement pension arising out of employment. The employer or the pension fund has taken on the obligation of paying an equivalent amount until the actual Old Age Security Benefits commence, and that equivalent amount becomes a retirement pension. This does not make these payments Old Age Security Benefits.

As a pension bridging benefit arises out of employment, is paid at retirement age, and is paid along with entitlement to a pension, it has the same characteristics as a retirement pension and is treated as such. Pension bridging benefits are no longer considered as earnings if the claimant can meet the requalifier exemption. This is true whether the pension bridging benefits are paid out of the pension fund, or are paid out of general company revenues.Pension bridging benefits cannot be considered to be a loan unless, under the terms of the pension bridging benefit plan, it has the same characteristics as a loan. ⁴

A bridging benefit may be paid out of general company revenues, between the last day worked and when pension entitlement can commence, either at normal or early retirement age. This bridging benefit cannot be considered to be a pension bridging benefit and cannot be treated as a periodic pension.To be allocated as a pension, there must be a concurrent pension entitlement. These payments before retirement age is reached may be a bridging benefit, in that they are intended to carry the employee from one financial point to another, however, they are not a pension bridging benefit. Their allocation will depend on whether the claimant remains an employee while these payments are being made⁵ or the employee has separated and it is part of termination payments ⁶ .

________________________

1. the fact that the source of the pension bridging benefit is not the pension fund does not make a difference to its determination as a pension bridging benefit as long as the criteria for a pension bridging benefit has been met;
2. it is not necessary that the employee actually be in receipt of the pension, as long as the employee has reached retirement age; the pension entitlement is there; and the pension bridging benefit payment is intended to complement the pension that the employee may have chosen to defer;
3. EIR 35(1); Old Age Security Benefits cannot meet the definition of a retirement pension arising out of employment is it is based solely on age and residence in Canada;
4. N. MacMillan (CUB 15276); Dawley (CUB 15686B);
5. EIR 36(5); see 5.7.2, "Remuneration under a Contract of Employment WITHOUT the Performance of Services";
6. EIR 36(9); see 5.12.7, "Retirement Payments."

CHAPTER 5 - Archived April 2006

5.12.0    MONEYS PAID OR PAYABLE BY REASON OF A LAY-OFF OR SEPARATION

When the employer-employee relationship is temporarily or permanently severed, certain rights and expectations exist. In the workplace, the employee's rights are protected by labour or contractual agreements and by statutory requirements.

Employees have the right to receive adequate notice of impending lay-offs, or at least pay in lieu of that notice. When the termination of employment is permanent, employees may expect to receive compensation, such as severance pay¹ or retirement payments², for the loss of that employment. Other moneys such as vacation pay³; statutory holiday pay;⁴ commissions;⁵ accumulated sick leave credits;⁶ and bonuses⁷ may also be owed at the time of lay-off or separation. If the employer does not pay these moneys, or makes an insufficient or otherwise unsatisfactory offer, an employee may take action through the union, a labour arbitration process or through the Courts.⁸

It is reasonable to conclude that moneys paid or payable on the occasion of or at the time of a lay-off or separation are paid by reason of that lay-off or separation. However, if a claimant establishes that the payment was only coincidental to the lay-off or separation, the earnings cannot be said to be paid or payable by reason of a lay-off or separation.⁹ Similarly, if it is established that earnings which were paid or payable prior to the termination of employment were really paid by reason of the lay-off or separation, these earnings are treated as earnings paid or payable for that reason.

_______________________

1. see 5.12.6, "Severance Pay";
2. see 5.12.7, "Retirement Payments";
3. see 5.10.0, "Vacation Pay";
4. see 5.7.2.1, "Designated Holidays";
5. see 5.8.0, "Commissions";
6. see 5.12.8, "Accumulated Sick Leave Credits";
7. see 5.14.0, "Bonuses, Gratuities and Tips";
8. see 5.12.11, "Damages for Wrongful Dismissal" and see 5.12.12, "Finding of Discipline and Suspensions";
9. D. Carr (A-572-95, CUB 28759).

---

5.12.2    Lay-off or Separation Moneys: Income Arising out of Employment

The nature of moneys paid or payable on lay-off or separation must be examined to determine whether they are part of the entire income arising out of employment. The payment of severance pay, pay in lieu of notice, and vacation pay is intended to compensate for the loss of wages or other benefits or advantages related to employment, or to pay out unused entitlement to certain benefits under the terms of the contract, collective agreement or legislation. As such, these moneys arise out of the employment relationship with the employer and they are income arising out of employment.

Moneys paid by an employer, or any other person, at the time of, or by reason of, a termination of employment, is payable in relation to that employment. Payments made by reason of a lay-off or separation are intended to compensate for the loss of wages and other benefits related to that employment unless there is evidence to the contrary. Any income arising out of employment and paid by reason of a lay-off or separation is earnings to be allocated.

If the claimant is able to establish that the payments are not related to the employment or are not intended to compensate for the loss of wages and other employment-related benefits, the moneys are not earnings. For instance, a payment made after the termination of employment that is intended to reimburse a job-related expense,¹ or money paid to compensate for losses unrelated to advantages arising from employment is not income.²

A payout of equity in a business (that is, a return of the amount the claimant invested in a business) is not related to employment, even if the claimant was employed by that business.³ If a payment does not arise out of employment, it is not earnings.⁴

Relying solely on the terms used by the parties is sometimes insufficient. When doubt exists about the true nature⁵ of separation payments, the intentions of the parties must be examined by reviewing all relevant documents and contacting all the parties involved. Ultimately, the onus is on the claimant to provide adequate facts to show that any income received upon the termination of employment is not earnings.⁶

________________________

1. see 5.12.2.1, "Expenses, Costs and Allowances Paid or Payable by Reason of a Lay-off or Separation";
2. see 5.12.11, "Damages for Wrongful Dismissal";
3. D. Carr (A-572-95, CUB 28759) and CUB 21381; see 5.16.0, "Earnings from Self-Employment";
4. see 5.3.1.6, "Return on Investment or on Capital";
5. CUB 5810 – while this case is very old it is still frequently referred to by Umpires when the true nature of moneys is discussed;
6. CUB 24888.

5.12.11  Damages for Wrongful Dismissal

Determining whether an award for damages for wrongful dismissal is income arising out of any employment uses the same process as any other moneys paid as a result of a termination from employment. Actions lodged for damages for wrongful dismissal try to reach the agreement that a party feels should have been made on termination from employment.

Damages for wrongful dismissal include any moneys that are awarded by a court or a tribunal, or agreed upon in an out-of-court settlement, following a dismissal that the employee claims was wrongful. Wrongful can mean either that the employment was terminated without cause or that the amount of notice was insufficient. Without cause simply means the employee was not at fault or that dismissal was too harsh under the circumstances. An employment contract does not have an indefinite existence. It may be terminated by either the employer or the employee at any time, without the other's consent, and no wrong is done by the termination itself unless the employment is protected by legislative or contractual provisions. Termination in these cases is in itself wrong if there is no just cause. An employee who is not at fault is entitled to reasonable notice of the lay-off or separation. If due notice is not provided, the employee is entitled to remuneration for the notice period, that is, pay in lieu of notice.

An employee who is fired for cause is not entitled to notice or to pay in lieu of notice, although it may be offered. Likewise, pay in lieu of notice is usually not offered when an employee quits. However, if the employee claims that the circumstances forced a resignation, that employee may still seek damages. Awards or settlements made in these circumstances are damages for constructive dismissal and are treated in the same manner as damages for wrongful dismissal.

When pay in lieu of notice is offered, the employee may accept or reject the offer. If the offer is accepted, that is usually the end of the matter. The principle of received and accepted is covered in another section.¹ If the employee refuses the offer, no allocation is made until the settlement is reached and accepted by the claimant.

Whether remuneration is or is not offered, the employee may decide to challenge the dismissal itself, or the terms of the separation offer, if one was made. A dismissed employee is protected only to the extent provided for by federal statute; by the labour legislation of the province where the work is performed; or by a union contract. The employee may file a grievance through a union to try to become reinstated or consult a lawyer and claim damages for wrongful dismissal through the courts.

Whether the case proceeds to court and is settled by a judge, or the case is settled out of court, any payment made by that process is generally known as damages for wrongful dismissal. Moneys to compensate for the loss of wages awarded to an employee are not actually damages if the employee is ordered reinstated by a labour arbitration tribunal, or, more rarely, by a civil court. These moneys are actual wages. Whether the employee is reinstated or not is important only in determining how the earnings will be allocated.² Another section deals with moneys to compensate for wages awarded to a reinstated employee when there is a finding or admission of discipline.³

_____________________

1. see 5.6.1, "Paid or Payable";
2. moneys to compensate for lost wages where the employee is reinstated are allocated under EIR 36(5) or EIR 36(11); damages for wrongful dismissal are allocated according to EIR 36(9) and EIR 36(10);
3. see 5.12.12, "Finding of Discipline and Suspensions."

5.12.11.3  The EI Process and Damages

When a case proceeds to court or labour arbitration, and the text of the judgement allocates the amounts awarded to various categories, the judgement can usually be relied upon to contain an accurate representation of what the award actually represents.¹ Such clearly worded judgements should not be questioned even if all or part of the award compensates the claimant for damages unrelated to the loss of wages or employment-related benefits. Any moneys paid for the loss of wages and employment-related benefits are earnings. It should be noted that a Consent Order is not a decision of the court made after a hearing but rather it is a ruling confirming agreement reached by the two parties.

When the text of the court or labour arbitration judgement is not specific and simply awards a lump sum, the Commission may assume that the entire award is earnings arising out of employment and the entire lump sum awarded by the court or tribunal, less any applicable expenses expended to obtain the award,² such as, legal expenses, is allocated.

When the matter does not proceed to a court or labour arbitration tribunal, and an out-of-court settlement is concluded, the memorandum of settlement and final release may be very general and assign only a final total dollar value for the damages sought. When the memorandum of settlement or final release is worded in general terms, the entire amount of the out-of-court settlement, less any applicable legal expenses, is considered earnings arising out of employment and allocated.

The final agreement may also be very specific. Memorandums of settlement are written by lawyers. It is their job to respond to the needs of their clients. To benefit their clients they may indicate in the documents that all or most of the money paid by the employer is not for lost income from employment. Keeping in mind that the courts usually restrict themselves to awarding damages for tangibles related to benefits enjoyed during employment, any out-of-court settlement which claims to have little or no concern with lost employment income must be carefully examined.

If the claimant claims that an out-of-court settlement is not for compensation for the loss of wages or other employment-related benefits, the jurisprudence requires that the claimant must show that either the money was paid for some other reason, such as, unpaid wages, moving expenses or retraining expenses. This means that the onus is on the claimant to prove that the settlement, or any portion of it, was not paid for lost income from employment. Claims and allegations made in a Statement of Claim are never proof that the employer has agreed to compensate the claimant for anything other than loss of wages.

To exclude money from the category of earnings paid to compensate for the loss of employment income, the claimant must establish that the payment was requested for other reasons and that the employer agreed to compensate the claimant for the injury, damage or expense. Proof may be found in the final release or in the correspondence between lawyers.³ In addition, the claimant must show that the injury, damage or expense claimed actually occurred and that the payment and the amount were reasonable in light of the injury, damage or expense. For example, if mental distress is claimed, the Commission may reasonably expect that the claimant sought professional help to deal with the distress. If this were not done, the claimant's allegation would be less credible. Receipts for expenses, which the employer agreed in the wrongful dismissal suit to pay for, are adequate proof that the money was not paid to compensate for the loss of employment income and benefits.

The employer must also confirm that the payment was for something other than for lost employment income. A straightforward, clear and uncontradicted statement is only questioned if the employer's confirmation appears to arise out of collusion with the employee, and the intent is to circumvent the purpose of the EI Act. Likewise if the employer's statement appears to be motivated by a desire to accommodate the employee, the out-of-court settlement would be questionable.

Only rarely is any portion of a generally worded out-of-court settlement not considered earnings. These very rare cases happen only when the evidence clearly demonstrates that the settlement is not for lost employment-related income.⁴

________________________

1. CUB 19298;
2. EIR 35(10)(a);
3. CUB 21081 and CUB 23983;
4. CUB 20773B and CUB 23801.

CHAPTER 14 -  Archived January 2006

14.2.0    AUTHORITY AND DEFINITIONS

The Act provides for the making of regulations limiting entitlement to benefits¹.  As such, EIR 33 provides that whoever is employed in teaching for any part of the qualifying period is not entitled to receive benefit—other than maternity, parental or compassionate care benefits—for any week of unemployment that falls within any non-teaching period unless the claimant meets one of the exempting conditions as defined by regulation².

________________________

1. EIA 54(j);
2. EIR 33(2)

14.3.0   DISENTITLEMENT AND RELIEF CONDITIONS

Persons engaged in the occupation of teaching, who have taught for any part of their qualifying period, are subject to a disentitlement under the EI Regulations.

However, the Regulations^{1 recognize that there are circumstances under which regular or sickness benefits could be payable.   These conditions are:}

• the contract of employment for teaching has terminated;
• the claimant’s employment in teaching was on a casual or substitute basis; or
• the claimant qualifies to receive benefits in respect of employment in an occupation other than teaching.

^{________________________}

1.  EIR 33(1).

---

14.3.1  Contract Termination

A contract in teaching can be either written or verbal to the effect that the contract will continue or not after the non-teaching period. It is reasonable to conclude that there is a new contract if both the employer and the claimant agree that a verbal agreement was concluded.

Where a claimant’s contract of employment for teaching has terminated, then the claimant may be entitled to regular or sickness benefits during the non-teaching period¹. However, for the teacher to be entitled to these benefits² there must be a genuine break in the teacher’s employment. This situation usually arises during the summer months.

To determine whether there is a genuine break in the continuity of the teacher’s employment during a non-teaching period and therefore conclude that the contract has terminated -as defined by Regulation – we must consider of two factors.

The first factor relates to whether the teacher has a new contract or agreement to return to teaching at the end of the non-teaching period. If there is no new contract (written or verbal) or agreement to return to teaching, then we must conclude that there is a genuine break in the teacher’s employment. The claimant will then be entitled to benefits from the day following the last day worked³.

When the teaching contract has expired at the end of June and the teacher is rehired or an agreement is made to return to teaching for September, then there may be continuity in the teacher’s employment⁴. It then becomes necessary to examine the second factor which is to determine if linkages exists between the contracts.

Therefore, the second factor deals with linkages when there is a gap between the end date of one contract and the beginning of another.    Even if the new contract is signed or agreed to prior to the end of the previous contract, the Commission must look for other elements of continuity or linkages between the two contracts⁵ before imposing a disentitlement.

The linkages could be seniority and/or pension contributions carried forward from one contract to the next, sick leave credits retained from one contract to the next, group insurance premiums paid by the employer over the non-teaching period and the claimant’s access to group insurance plan coverage over the non-teaching period. 

Under the terms and condition of a collective agreement, employee benefits, such as medical and dental benefits, could continue after termination.  For some teachers, medical and dental benefits are offered through agreements made through their union.  Continuing employee benefits – on its own – does not equate to linkages. To determine if there is a genuine break in the continuity of employment, we must examine whether the linkages are basically the same as for a permanent teacher working in the same school division.

A disentitlement will be imposed only if it has been determined that linkages exist and a contract for the following teaching period has been signed or agreed upon before the end of the old contract.   Linkages on their own are not sufficient to support a disentitlement.

Where benefits were allowed during the non-teaching period, a disentitlement under the Regulation would nevertheless apply if during the non-teaching period, a contract for the next teaching period is signed.  The disentitlement would apply as of the date of the signature of the contract or of the verbal agreement.

A teacher employed under separate contracts with different school boards and who has a contract termination from one of the employers, will not be entitled to benefit unless there is a period where he is not under any teaching contract.

A contract of employment does not terminate because a teacher is either suspended or on an approved leave of absence with or without pay⁶, such as educational, sabbatical, sick, maternity, or any type of leave, including deferred salary or self-funded leave⁷.

The continuation of any contract for claimants engaged in the occupation of teaching is deemed to exist when a teacher shares a position teaching half years or teaching a few days a week or even only one lesson a week⁸.   In these situations, unless the claimant can demonstrate that the contract has terminated and that there are no linkages, a disentitlement must be maintained because the contract has not terminated.

________________________

1. EIR 33(2)(a);
2. Oliver , CUB 49720); Giammettei (A-664-01,CUB 49701);
3. Oliver (A-811-00,  CUB 49720); Giammettei (A-664-01, CUB 49701);
4. Ying (A-101-98, CUB 40255), Jurisprudence Index/teachers;
5. EIR 33(2)(a); M. Gauthier (A-128-95, CUB 26838); E. Taylor (A-681-90, CUB 14246A);)
6. J.S. Dick (S-267-77, CUB 4556A);
7. EIA 11(3), S. Oram A-676-93, CUB 23386);
8. Renée Dupuis-Johnson (A-511-95, CUB 28420), Louise Grenier (A-512-95, CUB 28419).

---

14.3.2 Teaching on a Casual or Substitute basis

This provision provides that entitlement to benefits is based on the nature of the claimant’s teaching employment in the qualifying period, that is, casual or substitute teaching.

For the purposes of the Regulation, the words "casual" or "substitute" must be given their usual dictionary meaning.   This may differ from particular definitions found either in provincial legislation or in labour agreements.

"On a casual basis" refers to teaching for a short period of time and for a limited, intermittent and temporary purpose.   For the purposes of the Regulation¹, casual teaching means irregular, occasional or on-call teaching.   If the employment involves filling an unexpected or temporary absence for a short period, and if the replacement of the absent teacher can end at any time without notice, the replacement is of a casual nature.

"On a substitute basis" means a person who is available or used to perform the duties of another, temporarily, during leaves of absence, holidays or illness.   There are no limits placed on the length of time that a teacher can replace another without losing his or her status as a substitute.   The School Board may fill a lengthy vacancy, on a substitute basis, with the same teacher year after year or with different teachers.

Teachers employed on a substitute basis from one teaching year to the next are relieved from a disentitlement for the non-teaching period if it is established that there was no contract for the school year that just ended, and that there is no new contract for the upcoming school year.

There are situations where claimants are hired as substitute or replacement teachers year after year and sign 10-month contracts each year for these substitute positions.   These claimants do not fall within the original intent of the legislation for teaching on a casual or substitute basis.   In these cases, the claimant is deemed to be a teacher under a contract and thus disentitled from benefits unless the relieving condition of contract termination is met².

A teacher who taught solely on a substitute basis without being on fixed term contract and who is offered a fulltime position for the next school year would be entitled to benefits during the summer non-teaching period, provided no other disentitling event occurs.

In one case, a claimant was under a two year contract to work full-time specifically from September to January of each year, then taught as a substitute teacher from January to March, and then worked on a casual and substitute basis from March to June of the second school year.   The teacher satisfied the provision of the Regulation³ and was entitled to benefits in the non-teaching period because not only had the claimant worked on a casual and substitute basis, but more importantly the teacher had fulfilled her obligation under the contract and the contract was not renewed for the following teaching period.   That decision was maintained by the Federal Court of Appeal⁴. Therefore, when a claimant was both on a casual or substitute basis and had a contract at the end of the school year, a disentitlement is imposed unless it is proven that the contract has terminated as defined in 14.3.1.

There may be situations where a teacher is hired under a contract to teach part-time or by the lesson which could be terminated at any time.  A contract to teach part-time or by the lesson is not considered to be casual or substitute teaching.   These teachers are still considered to be under contract during the breaks that fall within their contract period.   There is a contract and no benefits are payable when the non-teaching period falls within the contract⁵.

_____________________

1. EIR 33(2) (b);
2. EIR 33(2) (a); Scott J. Bishop (A-151-01, CUB 50649);
3. EIR 33(2) (b);
4. B. Lewis ( A-475-89, CUB 17053);
5. Renée Dupuis-Johnson (A-511-95, CUB 28420), Louise Grenier (A-512-95,CUB 28419).

14.3.3   Occupation Other than Teaching

A claimant engaged in the occupation of teaching may be entitled to benefits during the non-teaching periods if he or she has, during the qualifying period, worked in an occupation other than teaching¹.

In order to be entitled, the claimant must fulfill the qualifying conditions using employment other than teaching.   Teaching at the post-secondary or university level is employment other than teaching as it does not fall within the definition of a teacher as per the Regulation².

The qualifying conditions to receive benefits require that a person have a sufficient number of hours of insurable employment in employment other than teaching in the qualifying period to establish a benefit period and have an interruption of earnings from employment in which the claimant worked at other than teaching.

A teacher who qualifies to receive regular or sickness benefits for the non-teaching period on the basis of an employment in an occupation other than teaching, will have his benefit rate based on that other employment³.  Should the claimant become entitled to benefits during the teaching period, the benefit rate for these benefits will be adjusted to take into account all insured employment in the rate calculation period, including the insurable earnings as a teacher.

________________________

1. EIR 33(2)(c);
2. EIR 33(1);
3. EIR 33(3).

---

ⁱ D-23: contract of employment for teaching not terminated during non-teaching period or new contract during non-teaching period.

ⁱⁱ D-1: not unemployed, working full working week during the teaching period (full-time contract)

ⁱⁱⁱ D-3: not available, employed part of a week (full-time contract)

^iv Consecutive: means a contract that starts immediately after the former one.

^v Date of signature: this term also includes a verbal agreement.

^vi Non-consecutive: means that there is a gap between two contracts.

^vii 10 months contract: this chart is based on the premise that a 10 month contract usually coincides with the teaching period.

---