Claim Procedure and Entitlement to Benefits
I. The Legislation
No person is entitled to benefits until he or she makes a claim for benefit in accordance with section 41 of the Unemployment Insurance Act or section 50 of the Employment Insurance Act and proves that:
- he or she meets the requirements for entitlement to benefits set out in the legislation; and
- no circumstances or conditions exist which would have the effect of disentitling or disqualifying him or her from receiving benefit.
Subsection 49(1) Employment Insurance Act
A benefit period will not be established unless the claimant supplies information in the form and manner directed by the Commission, giving the claimant's employment circumstances and the circumstances pertaining to any interruption of earnings, and any such other information which the Commission may require.
Subsection 48(2) Employment Insurance Act
On receiving an initial claim for benefit, the Commission shall decide whether a claimant is qualified to receive benefit and notify him or her of its decision.
Subsection 48(3 Employment Insurance Act
Subsection 26(1) of the Employment Insurance Regulations provides that a claim for benefit for a week of unemployment must be made within three weeks of the week for which the benefit is claimed.
Subsection 26(1) Employment Insurance Regulations
II. Principles of Law
a. General
The duty to decide all questions necessary to establish a claimant's entitlement to benefits is conferred on the Commission by the legislation.
Canada (A.G.) v. Atwal , (1985), 63 N.R. 66 (F.C.A.) A-1070-84
Canada (A.G.) v. Petrie , (1985), 64 N.R. 316 (F.C.A.) A-39-85
However, the legislation imposes on the claimant the burden of establishing his or her eligibility for benefits in all cases. A claimant meets this onus by proving the case on a balance of probabilities. Therefore, if the Board of Referees has a doubt as to the claimant's entitlement, the claimant has failed to discharge the onus of proof.
Canada (A.G.) v. Falardeau , A-396-85 , February 11, 1986, (F.C.A.)
Vinet v. C.E.I.C., (1989), 100 N.R. 190 (F.C.A.) A-771-88
Canada (A.G.) v. Walford, [1979] 1 F.C. 768 (F.C.A.) A-263-78
The requirements and conditions of entitlement are ongoing. Accordingly, a claimant may be called upon to prove that he or she satisfies the conditions of the legislation, not just once at the beginning of unemployment, but afterwards as well and on a regular basis.
Harbour v. U.I.C., (1986), 64 N.R. 267 (F.C.A.) A-541-85
Cote v. C.E.I.C., (1986), 69 N.R. 126 (F.C.A.) A-178-86 ; leave to appeal to Supreme Court of Canada refused (1987), 76 N.R. 79 (S.C.C.)
Beauchemin v. C.E.I.C., (1987), 15 F.T.R. 83 (F.C.T.D.) T-621-87
Canada (A.G.) v. Chinook, A-117-97, January 15, 1998 (F.C.A.)
The establishment of a benefit period does not give a claimant a vested right to benefits. A right to benefits becomes vested upon the filing of each bi-weekly claim establishing that the necessary conditions are met.
Cote v. C.E.I.C., (1986), 69 N.R. 126 (F.C.A.) A-178-86 ; leave to appeal to Supreme Court of Canada refused (1987), 76 N.R. 79 (S.C.C.)
Canada (A.G.) v. Chinook, A-117-97, January 15, 1998 (F.C.A.)
There is no onus on the Commission to provide a claimant with legal advice so that he or she may comply with the provisions of the Act. Furthermore, a claimant cannot avoid the application of the legislation simply because he or she was misinformed by the Commission.
Canada (A.G.) v. Mercier, [1977] 2 F.C. 389 (F.C.A.) A-690-75
Granger v. C.E.I.C., [1986] 3 F.C. 70 (F.C.A.) A-684-85; affirmed [1989] 1 S.C.R. 141 (S.C.C.) File No. 19959
Where a claimant is of the view that he or she has been wrongly disentitled to benefits, the proper procedure is to launch an appeal to the Board of Referees.
Beauchemin v. C.E.I.C. , (1987), 15 F.T.R. 83 (F.C.T.D.) T-621-87
b. Not In Canada
Except as otherwise prescribed by the legislation, a claimant is not entitled to receive benefits for any period during which the claimant is not in Canada
Paragraph 37(b)Employment Insurance Act
Section 55Employment Insurance Regulations
These legislative provisions are not an infringement of a claimant's mobility rights as guaranteed by 
subsection 6(1) of the Canadian Charter of Rights and Freedoms. While the Employment Insurance Act has the effect of disentitling claimants from receiving benefits subject to certain exceptions, the right to leave Canada is unimpaired. Subsection 6(1) of the Charter does not protect a claimant from the economic disadvantage associated with his or her choice to leave Canada for vacation purposes.
Information made available by Customs to the Commission, namely, the traveler's name, date of departure from and return to Canada is electronically matched with the Commission's database of claimants. The Commission retains the information in respect of those Canadian residents who were outside Canada and who received employment insurance benefits. The purpose is to identify claimants who fail to report that they are outside Canada while receiving benefits with a view to recovering any resulting overpayment, and where appropriate, to imposing penalties. This disclosure of personal information by Customs to the Commission is authorized by section 8 of the Privacy Act and section 108 of the Customs Act.
Section 8 Privacy Act, R.S.C. 1985, c. P-21
Section 108 Customs Act, R.S.C. 1985, c.1 (2nd Supp.)
Re: Canada (Privacy Commissioner), A-121-99, February 9, 2000 (F.C.A.); (S.C.C.) Decembre 7, 2001, File no 27846
c. Filing Reporting Cards on Tim
The failure to comply with the requirement of filing reporting cards does not automatically result in an immediate loss of the right to benefits. The failure to file a weekly report within the prescribed time does not render the claim for benefits definitively inoperative, but rather irregular, meaning that it could be rejected.
Harbour v. U.I.C. , (1986), 64 N.R. 267 (F.C.A.) A-541-85
The Commission may refuse to accept an irregular claim, but its refusal is subject to the general power of review given to the Board of Referees.
Harbour v. U.I.C. , (1986), 64 N.R. 267 (F.C.A.) A-541-85
Only the Commission can waive or vary the requirement under section 26 of the Employment Insurance Regulations that reporting cards must be submitted within three weeks of the period for which the claim is made.
Canada (A.G.) v. Desjardins , [1981] 1 F.C. 220 (F.C.A.) A-168-80
d. Waiver of Conditions or Requirements by Commission
Subsection 50(10) of the Employment Insurance Act gives the Commission the power to vary or waive any of the procedural requirements of entitlement to benefits set out in the legislation. This power is conferred solely on the Commission which may exercise the power where, in its opinion, the circumstances warrant. The power must be exercised fairly.
Canada (A.G.) v. Desjardins, [1981] 1 F.C. 220 (F.C.A.) A-168-80
Canada (A.G.) v. Von Findenigg, [1984] 1 F.C. 65 (F.C.A.) A-737-82
Harbour v. U.I.C. (1986), 64 N.R. 267 (F.C.A.) A-541-85
Paxton v. Canada (A.G.), [2002] F.C.J. No. 1371 (F.C.A.) A-486-01
An Umpire is not entitled to exercise the power to vary or waive these legislative requirements because, in his or her view, the Commission should have done so. Rather, the matter should be referred back to the Commission for exercise of its statutory duty.
Canada (A.G.) v. Desjardins, [1981] 1 F.C. 220 (F.C.A.)A-168-80
Canada (A.G.) v. Von Findenigg, [1984] 1 F.C. 65 (F.C.A.) A-737-82
Harbour v. U.I.C. (1986), 64 N.R. 267 (F.C.A.) A-541-85
Paxton v. Canada (A.G.), [2002] F.C.J. No. 1371 (F.C.A.) A-486-01
Where it is clear that the Commission has failed to consider a waiver of the conditions, the Board of Referees has the authority to, and should, refer the matter back to the Commission to consider the question of whether the circumstances of a particular case warrant a waiver.
Canada (A.G.) v. Von Findenigg, [1984] 1 F.C. 65 (F.C.A.) A-737-82
e. Appeal
Any decision of the Commission made under the above-noted legislative provisions may be appealed to a Board of Referees.
Cornish-Hardy v. Canada, [1979] 2 F.C. 437 (F.C.A.) A-647-78; affirmed [1980] 1 S.C.R. 1218 (S.C.C.) File no. 15944
Where a claimant is of the view that he or she has been wrongly disentitled to benefits, the proper procedure is to launch an appeal to the Board of Referees.
Beauchemin v. C.E.I.C. ,(1987), 15 F.T.R. 83 (F.C.T.D.) T-621-87