Digest of Benefit Entitlement Principles - Chapter 5

5.6.0    The Allocation of Earnings Under Regulation 36

5.6.1     Paid or Payable 
5.6.1.1  Paid 
5.6.1.2  Payable 
5.6.2     Choosing the Appropriate Period of Allocation 
5.6.2.1  Allocation of Earnings that were Paid or Payable by Reason of Lay-off or Separation 
5.6.2.2  Allocation Based on the Type of Earnings 
5.6.2.3  Other Cases where Subsections 1 to 18 do not Apply 
5.6.3     Normal Weekly Earnings from that Employment 
5.6.3.1  That Employment 
5.6.4     Summary

5.6.0    THE ALLOCATION OF EARNINGS UNDER REGULATION 36

Once moneys are determined to be earnings for benefit purposes and they are found to be paid or payable, how those earnings are handled must be determined. Earnings that were not declared previously are handled in a different manner¹ than those properly declared. For those earnings properly declared, the issue of allocation arises. Regulation 36 describes the manner of allocating earnings and the period to which earnings are to be allocated when those earnings are properly declared by the claimant.

Earnings from different employments are allocated independently from one another, that is, concurrently with each other.

When an allocation of earnings does not take into account normal weekly earnings, the earnings are allocated to the required specific weeks regardless of any other earnings that are also allocated to those same weeks whether those earnings are from the same employment or different employments. This concurrent allocation may result in the earnings in a week exceeding the claimant's normal weekly earnings.

When an allocation is based on normal weekly earnings, the allocation takes into account all earnings from that employment² allocated to that specific period. This allocation results in the total earnings from a particular employment in a week not exceeding the claimant's normal weekly earnings from that particular employment. Allocation of earnings from the same employment using normal weekly earnings and the total of all earnings from that particular employment results in a consecutive rather than concurrent allocation of these earnings.

When more than one type of earnings must be allocated and some earnings do not take into account the normal weekly earnings, whereas others do, earnings that do not take into account normal weekly earnings are allocated first, to the required specific weeks. Then any earnings from that same employment that take into account normal weekly earnings are allocated next, topping up any other earnings from the same employment up to the normal weekly earnings from that employment in each week. This is a consecutive allocation. There is an exception for pension earnings, which are not taken into account in the allocation of other earnings³.

Once the period of allocation is determined, it must be ascertained if the moneys were indeed earnings under the legislation that was in effect during each week of the allocation⁴. It is the regulation that existed during the period of allocation that applies not the regulation that exists when the claim for benefit is established or when the earnings are brought to the attention of the Commission⁵. A retroactive allocation is not made to any week during which the regulation would have exempted it at the time.

All earnings are allocated on a weekly basis⁶. A week for benefit purposes always commences from Sunday⁷. The amount allocated to a week will determine the amount to be deducted from benefits for that week⁸.

Shifts that start on Saturday and end on Sunday overlap two weeks. As wages are allocated to the period for which the services are performed⁹, they are allocated to two different weeks based on the hours worked in each week¹⁰.

Earnings are not always payable for a period that coincides with a calendar week. When this occurs, the earnings are allocated based on the work performed in each calendar week¹¹.

An allocation can only be made in dollars. Therefore, when the amount of earnings to be allocated to a week is a fraction of a dollar, fifty cents ($0.50) or more is taken as a dollar ($1.00) and, less than fifty cents is disregarded¹².

The treatment of income under any other legislation, such as the Income Tax Act, may differ from that under the Employment Insurance Act. For example, termination moneys paid in one year, may be deemed income for that year under the Income Tax Act, but allocated on a claim in the previous year, from the week of separation. However, each legislation has its own purpose and provisions. Other legislations cannot be invoked as an authority or take precedence over that stated in the Employment Insurance legislation¹³. Even within the EI legislation, allocation for insurability and premium purposes and allocation of earnings for benefit payment purposes are made under two different regulations and as a result, one cannot take precedence over the other¹⁴.

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1. EIA 19(3); EIR 15;
2. see 5.6.3.1, "That Employment";
3. EIR 36(16);
4. EIR 36(2);
5. R. Côté (A-178-86); R. Bourdeau (A-99-86, CUB 11738);
6. EIR 36(1);
7. EIR 2(1) "week";
8. EIA 19;
9. EIR 36(4);
10. CUB 9002;
11. EIR 36(3);
12. EIR 36(20);
13. CUB 19876;
14. Employment Insurance Regulations and Insurable Earnings and Collection of Premiums Regulations. 
     

5.6.1    Paid or Payable

Earnings must be either paid or payable before they can be allocated. Neither the term paid nor payable is defined in the EI legislation.
 

5.6.1.1    Paid

Paid, for EI purposes, means actually received and accepted. The concept of paid combines the offer of a payment by an employer or any other person with the receipt and acceptance of that offer by the claimant.

Received means to come into possession of; to acquire; or to have control of the payment. Claimants have received payment when they physically hold the cheque or cash or when from non-pecuniary income. Claimants are also considered to have received payment when it is expected to be in their possession shortly, usually the next payment processing date. This commonly occurs with wages, salary, vacation pay paid with each pay, periodic pensions and termination moneys. Received applies equally to cases where the money is deposited directly into the claimant's bank account, transferred directly by the employer to a RRSP¹, or paid in fulfilment of a debt².

The claimant generally accepts an offer of payment by cashing the cheque. Even if the claimant does not cash the cheque, payment may still be considered received and accepted. Sometimes the employer delays issuing the cheque; the claimant delays picking up the cheque or does not cash it; or a court or tribunal has decided the issue and there is no further litigation. In these cases, the amount is considered paid. However, it is not considered paid if the amount and condition of payment are in dispute and the cheque is refused or returned³.

If the claimant accepts an offer of money by cashing the cheque, the claimant cannot invalidate that payment by any subsequent repayment arrangements⁴. Only if the money was paid by mistake or not legally due, would the Commission accept repayment arrangements, and no longer consider the earnings paid.

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1. Supreme Court decision in J. Granger (A-684-85, CUB 10909);
2. CUB 9543 and CUB 27639;
3. CUB 15573;
4. CUB 13071. 
    

5.6.1.2    Payable

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

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

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

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

In addition, an amount is not considered payable when the amount and condition of payment are in dispute and the cheque is refused or returned. In that case, the amount is not immediately due but rather is payable some time in the future, when the agreement between the parties is reached as it is only then that the person is in the position to enforce payment. Likewise, an amount is not considered payable when the employer has filed for bankruptcy or is experiencing financial difficulties and it is not expected that payment will be issued in the immediate future³ . If the payment is later made by the employer, trustee or from a governmental Wage Earner Protection Fund, it must be allocated according to the type of earnings and the reason for the payment.

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

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

5.6.2    Choosing the Appropriate Period of Allocation

Regulation 36 is divided into subsections that set out the manner of allocating different types of earnings under various situations.

Because subsection 36(9) is based solely on the reason for the payment, rather than the type of earnings involved, all earnings must be examined to determine the reason for their payment. Once earnings are determined to be paid or payable by reason of a lay-off or separation. they must be allocated from the week of lay-off or separation, regardless of the nature of the earnings or the period in respect of which they are purported to be paid or payable¹.

If the earnings were not paid by reason of a lay-off or separation, choosing the appropriate period of allocation is based on the type of earnings if those earnings are specifically mentioned in another subsection. When a specific type of earnings has not been mentioned in Regulation 36, subsection 36(19) provides for their allocation².

Occasionally, the name given to a payment does not match the terminology used in Regulation 36; however, the name of the payment does not change the nature of the payment. For instance, what is called a bonus may in fact represent wages, that is, earnings paid under a contract of employment for the performance of services³; a payment made by reason of a lay-off or separation⁴; or it may be something else entirely, like a bonus for a special event⁵. The period of allocation chosen depends on the true nature of these earnings⁶.

Once the period of allocation is chosen, it must be reviewed to see if there are any other earnings already allocated to that period. In addition, when more than one type of earnings is paid or payable at the same time, the method of allocation must be reviewed. When there is more than one type of earnings, they may be allocated concurrently or consecutively, depending on the wording of the subsections involved.

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1. see 5.6.2.1, "The Allocation of Earnings that were Paid or Payable by Reason of a Lay-off or Separation";
2. EIR 36(19);
3. EIR 36(4); see 5.14.1, "Production Bonuses"; see 5.14.4, "End-of-Season Bonuses";
4. EIR 36(9); see 5.14.5, "Separation and Retirement Bonuses"; see 5.14.6, "Closure Bonuses";
5. EIR 36(19)(b); see 5.14.3, "Event Bonuses";
6. see 5.2.0, "The Determination of Earnings under Regulation 35." 
    

5.6.2.1    Allocation of Earnings that were Paid or Payable by Reason of a Lay-off or Separation

Any earnings, regardless of their nature, that are truly paid by reason of a lay-off or separation, to meet all the employer's obligations with respect to the lay-off or separation, must be allocated from the week of lay-off or separation. This includes any earnings paid to compensate for loss of employment, as well as any payment of outstanding entitlement to unused benefits, such as vacation pay or accumulated sick leave credits, which are paid out under the terms of the contract of employment on separation. This allocation must take place from the week of lay-off or separation regardless of the period for which these earnings are purported to be paid or payable¹.

Earnings paid on the occasion of a lay-off or separation are usually considered to be paid by reason of the event; however, there may be evidence that the payment simply coincides with the lay-off. The true reason for the payment may be something entirely different. For instance, a lay-off may coincide with an anniversary payment of vacation pay. If the vacation pay would have been paid at that time, regardless of the lay-off, then it cannot be said that the payment was made by reason of the lay-off. Payments may be merely bookkeeping activities prompted by the lay-off or separation and not truly paid to compensate for that lay-off or separation or to pay any entitlement to unused benefits that are due on lay-off or separation under the terms of the contract or collective agreement. For instance, the employer may discover that certain earnings should have been paid at an earlier date but were overlooked. While payment was prompted by the lay-off, it was not the reason for the payment.

Regulation 36(9) regarding earnings by reason of a lay-off or separation is not concerned with the type of earnings paid but only with the reason for the payment. Therefore, regardless of the type of earnings involved, if earnings are paid or payable to the claimant by reason of a lay-off or separation, that is, to compensate for that event or to pay out any remaining benefits under the contract, they are allocated under that subsection. If the earnings are not paid or payable for these reasons, they are allocated according to the type of earnings².

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1. EIR 36(9); see 5.12.0, "Moneys Paid or Payable by Reason of a Lay-off or Separation";
2. see 5.6.2.2, "Allocation Based on the Type of Earnings."

5.6.2.2    Allocation Based on the Type of Earnings

Once it is found that the earnings were NOT paid or payable by reason of a lay-off or separation¹, that is, not to compensate for a lay-off or separation or to pay out unused entitlement to benefits under the terms of a contract, an appropriate subsection must be chosen. Regulation 36 refers to the allocation of specific types of earnings as well as the reason for a payment. If the specific type of earnings is mentioned in the Regulation, earnings are allocated according the relevant subsection². If the specific type of earnings is not mentioned, earnings are allocated according to regulation 36(19), which is used when none of the other subsections apply³.

Wages or salary for the performance of services⁴ are always allocated to the period where services were performed⁵.

Although there are a number of earnings that are payable under a contract of employment without the performance of services, if a type of earnings has been specifically mentioned elsewhere in the regulation, allocation is under that subsection rather than the more general one. When a payment is made under a contract of employment without the performance of services⁶, these earnings are allocated to the period for which they are payable⁷.

When a payment is made in consideration of a claimant's returning to work or commencing work with an employer⁸, these earnings are allocated to the period for which they are payable⁹. These earnings are not payable until the claimant meets the condition of returning to work or commencing work with that employer. The earnings are allocated to the week in which the claimant meets the condition.

Earnings that are in the way of participation in profit¹⁰, on the basis of a commission¹¹, or through self-employment in employment other than farming¹²are other types of earnings that are specifically mentioned¹³. Earnings, which fall into these categories, are allocated to the week or weeks in which the services that gave rise to the earnings are performed. Where the earnings arise from a transaction, the earnings are allocated to the week in which the transaction that gave rise to the earnings occurred.

Earnings arising from self-employment in farming are allocated, if they arise out of a farming transaction, to the week in which the transaction occurred. If they are received in the form of a subsidy, they are allocated to the week in which the subsidy is paid¹⁴.

Earnings received following the settlement of a wrongful dismissal complaint are generally not allocated based on their nature or type. They are allocated as any other type of earnings that are paid by reason of lay-off or separation, that is, based on the reason for their payment¹⁵. However, where there is a finding or admission of discipline against the employee AND the earnings are awarded to specific weeks under the settlement, these earnings are handled in a different manner. The allocation starts from the first week for which the earnings are awarded, based on normal weekly earnings, ignoring any period of suspension without pay¹⁶.

Payments for sick, maternity and parental leave¹⁷, sickness or disability payments made under a group wage-loss indemnity plan¹⁸, provincial motor-vehicle accident insurance payments where EI is not taken into account¹⁹, payments made by provincial governments for the withdrawal of services as a preventative measure²⁰, and workers' compensation payments, other than lump sum or pension paid in full or final settlement of a claim for workers' compensation payments²¹, are all allocated to the period for which they are paid or payable.²²

Holiday pay for a day of leave that is a designated day recognized by law, custom or agreement is always allocated to the week in which that day occurs²³.

Pension earnings paid periodically²⁴ or in a lump sum are allocated to the period for which they are payable²⁵. When the payment is made in a lump sum²⁶, it first must be converted to a weekly amount²⁷.

Earnings that are payable to a claimant under a government program intended to encourage re-employment and that are payable to the claimant as a supplement to earnings arising from a contract of employment are allocated to the period for which they are payable²⁸.

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1. see 5.6.2.1, "Allocation of Earnings that were Paid or Payable by Reason of Lay-off or Separation";
2. EIR 36(4) to (18);
3. EIR 36(19);
4. see 5.7.1, "Remuneration under a Contract of Employment FOR the Performance of Services";
5. EIR 36(4);
6. see 5.7.2, "Remuneration under a Contract of Employment FOR the Performance of Services";
7. EIR 36(5);
8. see 5.7.0, "Remuneration under a Contract of Employment";
9. EIR 36(5);
10. see 5.15.0, "Profit Sharing Plans";
11. see 5.8.0, "Commissions";
12. see 5.16.0, "Earnings from Self-Employment";
13. EIR 36(6);
14. EIR 36(7); see 5.16.0, "Earnings from Self-Employment";
15. EIR 36(9); see 5.6.2.1, "Allocation of Earnings that were Paid or Payable by Reason of a Lay-off or Separation" and see 5.12.11, "Damages for Wrongful Dismissal";
16. EIR 36(11);
17. EIR 36(12)(a);
18. EIR 36(12)(b); see 5.11.2, "Wage-loss Indemnity Plans";
19. EIR 36(12)(c); see 5.11.4, "Motor Vehicle Accident Insurance Payments";
20. EIR 36(12)(c); see 5.11.5, "Withdrawal of Services as a Preventative Measure Payments";
21. EIR 36(12)(d); see 5.11.3, "Workers' Compensation for an Illness or Injury";
22. EIR 36(12);
23. EIR 36(13);
24. EIR 36(14); see 5.13.5, "Periodic Pensions";
25. EIR 36(15);
26. see 5.13.6, "Lump-sum Pension Benefit";
27. EIR 36(17);
28. EIR 36(18).

 5.6.2.3    Other Cases where Subsections 1 to 18 do not Apply

Subsection 36(19) provides for the allocation of earnings when no other subsection applies¹. The period of allocation depends on whether the earnings arise from the performance of services or if they arise from a transaction. If they arise from the performance of services, they are allocated to the period in which the services were performed. If they arise from a transaction, they are allocated to the week in which the transaction occurred.

An example of such a circumstance is a gratuitous payment from an employer, such as a turkey at Christmas. This payment is neither paid by reason of a lay-off or separation nor is it paid for work performed. This type of earnings, a gratuitous payment, is not specifically mentioned in any other subsection. A value must be affixed to the turkey and it is allocated to the week in which the transaction occurred, that is, to the week in which Christmas occurs².

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1. EIR 36(19);
2. see 5.14.3, "Event Bonuses."  

5.6.3    Normal Weekly Earnings from that Employment

Earnings¹ may require allocation according to the claimant's normal weekly earnings from that employment². Normal weekly earnings are the ordinary, usual earnings that a claimant earns on a regular basis at that employment³.

Generally, normal weekly earnings consist of the most recent gross weekly salary upon which the employer and the claimant have agreed⁴. Where the employee is paid an hourly rate, normal weekly earnings are calculated by multiplying the number of hours normally worked by the hourly rate of pay. The gross weekly salary agreed upon may also include compensation in addition to basic wages, such as, commissions paid at regular intervals, vacation pay and holiday pay paid with each paycheque⁵, northern allowance, car allowance⁶ and regular shift premiums.

Fringe benefits that the claimant enjoys during employment are not included in the normal weekly earnings⁷. Such fringe benefits, which are not included in normal weekly earnings, are life insurance benefits, long-term service awards, vacation pay that is not paid periodically, and an annual incentive allowance⁸. However, fringe benefits may be included in normal weekly earnings when allocating earnings on separation⁹ if the calculation of the amount of compensation paid by the employer is clearly based on the fringe benefits as well as the wages¹⁰.

The claimant's weekly salary may occasionally be increased by overtime, shift premiums, incentive or cost-of-living bonuses, irregular commissions, or other similar moneys. As well, the weekly salary may be reduced when the claimant works fewer hours than agreed or temporarily works shifts for which a premium is not paid. When this increased or decreased weekly salary occurs so often that it is considered "normal," it becomes the claimant's normal weekly earnings¹¹. "Normal" may be considered as what has repeatedly occurred in 85 per cent of the weeks used to calculate the benefit rate. If this increased or reduced weekly salary varies from week to week, normal weekly earnings become the average of the increased or reduced weekly salary of the weeks under study.

The gross weekly salary may vary because of the pattern of work. For example, the pattern of work may require a different number of hours to be worked in each week or a different shift premium may be applicable in each week. In addition, the work pattern may include alternating weeks on and off work, or, a person may work additional hours in a week in order to earn days off. In these cases, normal weekly earnings are determined by averaging the gross weekly salary over the weeks of the work pattern.

Where there is a contract, which specifies a time period, and a specific sum paid for the total period rather than an hourly or weekly wage, normal weekly earnings are determined by taking an equal distribution of the amount over the contract period. The actual number of hours worked in any given week is not relevant in these situations when determining normal weekly earnings.

Claimants' declarations as to their weekly earnings are accepted at face value unless these amounts do not appear reasonable or there is clear evidence to the contrary.

As long as the difference between what the claimant has reported on the Application for Benefits as Normal Weekly Earnings [NWE] and the Average Weekly Insurable Earnings [AWIE] calculated from the ROE (excluding moneys paid on termination) is not greater than either 10% of the amount the claimant has reported as NWE or $75, the claimant's statement will be deemed reasonable.   If the difference is greater than either 10% of the NWE reported by the claimant or $75, further fact finding may be required.  However in some cases, a difference of more than 10% of the NWE or $75 could still be accepted based on the claimant's circumstances or local labour market knowledge.

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1. EIR 36(8); EIR 36(9); EIR 36(10); and EIR 36(11);
2. see 5.6.3.1, "That Employment";
3. M. Fox (A-841-96, CUB 35026);
4. CUB 14699;
5. M. Fox (A-841-96, CUB 35026);
6. M. Fox (A-841-96, CUB 35026);
7. CUB 4499;
8. M. Fox (A-841-96, CUB 35026);
9. see 5.12.10, "Fringe Benefits";
10. CUB 24992:
11. J. Cyr (A-857-77, CUB 4802).

 5.6.3.1    That Employment

Some earnings are allocated in such a manner that the total earnings from that employment, in each consecutive week except the last, are equal to the claimant's normal weekly earnings from that employment¹.

Only earnings arising from that employment are to be considered when allocating at normal weekly earnings. Which employment is meant by the phrase that employment must be examined in the context of the wording of the regulation in which it appears.

In the case of allocation of earnings paid or payable by reason of a lay-off or separation from an employment², the term, that employment, refers to the employment that is lost by such reason. This means that all earnings paid or payable by reason of a lay-off or separation are allocated to each week so that the total earnings in that week from the employment which has been lost do not exceed the normal weekly earnings from that same employment. Earnings, which must be considered in this way, are those earnings that arise from the same employment that is giving rise to the earnings to be allocated.

Earnings resulting from a different employer are not considered as earnings from that employment.

As long as a lay-off or separation from the employment giving rise to the earnings legitimately occurs or the right to the payment legitimately occurs under the contractual provision, earnings from any subsequent employment with the same employer are not used in determining the amount of earnings to be allocated to a week for the purposes of normal weekly earnings. Termination moneys payable before a claimant actually ceases work with an employer must be carefully examined to determine exactly what is giving rise to the payment.

When a trustee is appointed to continue the operations of an employer in bankruptcy, it is considered to be subsequent employment and not that employment. As a result, earnings for work performed for the trustee are not taken into account when allocating any earnings paid or payable by reason of a lay-off or separation that are paid by the trustee or a Wage Protection Fund on behalf of the bankrupt employer³.

In the case of an allocation of vacation pay that is paid or payable to a claimant by reasons other than a lay-off or separation from an employment, the term that employment refers to the employment that caused the vacation pay to be paid.

In the case of earnings awarded to specific weeks after a finding or admission of discipline⁴, that employment referred to is the one from which the claimant was suspended.

If allocation is required at the rate of normal weekly earnings, the allocation period must be reviewed to see if there are any other earnings applicable to that same period from the same employment that resulted in the earnings to be allocated. Any earnings from employment other than that which gave rise to the amount to be allocated are not considered when determining the amount to be allocated to each week as normal weekly earnings.

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1. EIR 36(8)(a); EIR 36(8)(b); EIR 36(9); EIR 36(10);
2. EIR 36(9);
3. CUB 23693; W. Van der Veen (A-560-94, CUB 25305);
4. EIR 36(11).

 5.6.4    Summary

EIR 36(20)

Regulation 36	Purpose
EIR 36(1)	Subject to ss. (2), earnings are allocated to the weeks in the manner described and for the purposes mentioned in 35(2).
EIR 36(2)	Earnings are not allocated to any week during which they would not constitute earnings under regulation 35.
EIR 36(3)	If earnings are not payable for a period that coincides with a calendar week, they are allocated in the proportion that the number of days worked in the week bears to number of days worked in the period.
EIR 36(4)	Earnings payable under a contract of employment for the performance of services are allocated to the period where services were performed.
EIR 36(5)	Earnings payable under a contract of employment without the performance of services or payable in consideration of a claimant returning to or commencing work with an employer, are allocated to the period for which they are payable.
EIR 36(6)	Earnings of a claimant in the way of self-employment in employment other than farming or participation in profits or on the basis of a commission are allocated to the week or weeks in which the services that gave rise to those earnings are performed. Where earnings arise from a transaction, the earnings are allocated to the week in which the transaction that gave rise to the earnings occurred.
EIR 36(7)	Earnings from self-employment in farming are allocated, if they arise from a transaction, to the week in which the transaction occurred and if received in the form of a subsidy, to the week in which the subsidy is paid.
EIR 36(8)	Vacation pay for reasons other than a lay-off or separation from an employment is allocated, if paid for a specific vacation period, at normal weekly earnings to that period and in any other case, at normal weekly earnings from the first week for which it is payable.
EIR 36(9)	All earnings paid by reason of a lay-off or separation, to compensate for that event or to pay entitlement to unused benefits, regardless of their nature and the period for they are purported to be paid or payable, must be allocated at normal weekly earnings from that employment beginning with the week of the lay-off or separation. This allocation is subject to the provisions contained in (10) and (11).
EIR 36(10)	Subject to (11), where earnings are paid or payable by reason of a lay-off or separation after an allocation under (9) in respect of the same lay-off or separation, the earning that were allocated are added to those to be allocated, and, regardless of the nature and the period these earnings are purported to be paid or payable, a revised allocation in accordance to (9) is made.
EIR 36(11)	Where there is a finding or admission of discipline against the employee AND earnings are awarded to specific weeks under the settlement, the allocation is from the first week for which the earnings are awarded, based on the normal weekly earnings, ignoring any period of suspension without pay.
EIR 36(12)	Payments for sick, maternity and parental leave, sickness or disability payments made under a group wage-loss indemnity plan, provincial motor-vehicle accident insurance payments if benefits under the EI Act are not taken into account, payments made by provincial governments for the withdrawal of services as a preventative measure, and workers' compensation payments other than a lump sum or pension paid in full and final settlement of a claim, are allocated to the period for which they are paid or payable.
EIR 36(13)	Payment for a holiday or non-working day for a day of leave that is a designated day recognized by law, custom or agreement is allocated to the week in which that day occurs.
EIR 36(14)	Pension earnings paid periodically are allocated to the period for which they are payable.
EIR 36(15)	Pension earnings paid in a lump sum are allocated from the first week that those earnings are paid or payable by converting the lump-sum payment to a weekly amount using an annuity calculated in accordance with (17).
EIR 36(16)	Pension earnings under (14) and (15) are not taken into account when allocating other earnings under Regulation 36.
EIR 36(17)	The weekly annuity amount for lump-sum pension allocation is calculated by dividing the lump-sum amount by 1000 and by multiplying it by an weekly annuity equivalent as set out in Schedule II corresponding to the claimant's age at the date the lump-sum payment is paid or payable.
EIR 36(18)	Earnings payable under a government program intended to encourage re-employment and payable as a supplement to earnings arising out of a contract of employment are allocated to the period for which they are payable.
EIR 36(19)	If (1) to (18) do not apply, earnings arising from the performance of services are allocated to the period in which the services were performed and earnings arising from a transaction are allocated to the week in which the transaction occurred.
Earnings of a fraction of a dollar that is fifty cents ($0.50) or more are taken as a dollar and a fraction that is less than fifty cents is disregarded.

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