Benefit Period of Employment Insurance (8:V)

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A. Introduction

When a claim is established, the claimant’s “benefit period” will begin. Under s 10(1) of the EI Act, the benefit period begins on the Sunday at the beginning of the week in which the interruption of earnings occurs, or on the Sunday of the week in which the initial claim for benefit is made, whichever is later, though this is subject to antedating. Benefits will only be paid during the benefit period.

B. Antedating

If an application for EI benefits was not filed within the first four weeks after the week in which the claimant experienced their interruption of earnings inter, he or she can ask that the claim be antedated back to the first date when it could have been filed under s 10(4). The claimant must establish that good cause existed for the delay in filing. “Good cause” must be demonstrated for each day until the date of application was actually made. If the claim is filed within the first four weeks, it is automatically antedated to the first date of eligibility.

What is “Good Cause”? Good cause has typically been interpreted narrowly. In one case, the applicant was in the hospital and the Commission denied his application for antedating on the grounds that his wife should have made the claim on his behalf. Simple ignorance of the requirements of the EI Act has not been considered good cause either, though reasonable reliance on bad advice from the employer, union, a legal advisor or the Commission itself usually meets the requirements.
In Attorney General v Burke, 2012 FCA 139, a claimant asked for his application to be back dated because he had expected to be rehired and hence did not apply for EI until after the regular deadline. The Federal Court of Appeal upheld the previous decisions granting an antedate on the basis that the claimant had done what a reasonable person would do.

C. Income That is Treated as Earnings

Section 35(2) of the EI Regulations defines what will be considered earnings for EI purposes.

Income that counts as “earnings” includes, but is not limited to:

  • a) severance pay;
  • b) retirement payments and retirement leave credits or payments in lieu;
  • c) most bonuses and gratuities;
  • d) wages in lieu of notice; and
  • e) vacation pay.

See section 35(2) of the EI Regulations for more detail.

It is important to note some income, while generally considered earnings, will not prevent an interruption of earnings. For example, the fact that a worker receives severance, pay in lieu of notice, or vacation pay after getting laid off will not delay the interruption of earnings. The claimant should still apply for EI as soon as possible after they stop working to make sure their application is not late, even if the money they get from the employer due to the layoff may delay the start of their actual EI benefits..

Income regarded as earnings is “allocated” pursuant to s 36 of the EI Regulations. This is usually done at the claimant’s regular weekly rate of pay. Such allocation may delay the start of benefits by the number of weeks the earnings can be allocated to. For example, if a person normally earns $500 per week, and receives $1000 severance pay, their claim will be delayed for an additional 2 weeks after they stop work. This is because it will notionally take two weeks to “use up” the $1000, as the claimant usually makes this amount in two weeks.

Though the claimant will need to wait until the money is used up before being eligible to receive benefits, he or she must still apply for EI immediately. The benefit period will be extended to make up for the weeks it takes to use up these earnings.

D. Income That Is Not Treated As Earnings

Section 35(7) exempts certain sources of income from being regarded as earnings. These include:

  • a) Disability pension or a lump sum or pension paid in full and final settlement of a claim made for workers’ compensation payments;
  • b) Payments under a sickness or disability wage-loss indemnity plan;
  • c) Relief grants;
  • d) Retroactive increases in wages or salary.

For more details, see section 35(7) of the EI Regulations.

Recent cases suggest that in certain circumstances some earnings may not delay the start of an EI claim. In Attorney General of Canada v Doreen Myers, 2006 FCA 57, the court found that the claimant’s vacation pay did not delay the start of a claim because it was not a payment made by reason of a separation, thus allowing benefits to be received earlier, and possibly at a higher rate. See also the case of Attorney General of Canada v Bielich, 2005 FCA 363. In this case the court allowed a $24,000 payment to be exempted from the claimant’s allocation of earnings because the purpose of the payment was to compensate the claimant for giving up his right to seek reinstatement, not to compensate for lost pay.

NOTE: A retirement pension will not delay the start of a claim. Retirement pensions are generally considered income and are deducted from EI benefits. However, if the claimant accumulates all the hours needed to qualify for EI after the date their pension starts, then their pension money will not be deducted from their EI benefits (see EI Regulation, s 35(7)(e).

E. The Waiting Period

Before receiving any EI benefits, a claimant must serve a one week “waiting period” during which they are unemployed and otherwise eligible for benefits (EI Act, section 13).

This waiting period also applies to pregnancy, parental, caregiver and sickness claims. For caregiver benefits, it can be deferred for the second family member if benefits are split, but the first person must serve it. If a claimant works during the waiting period, 100 percent of his or her earnings will be deducted from the first three (and no more than three) weekly benefit cheques.

F. Length of Benefit Period

The benefit period for regular EI benefits is 52 weeks. However, this period can sometimes be extended to more than 52 weeks, The criteria for this are set out in s 10(10) of the EI Act. The benefit period can be extended when a claimant proves that for any week during that benefit period the claimant was not entitled to benefit by reason of:

  • a) receiving earnings paid by reason of the complete severance of the relationship between the claimant and the claimant’s former employer (i.e. “using up” severance pay, vacation pay, etc.);
  • b) receiving Workers’ Compensation payments for a total disability; or
  • c) receiving payments under a provincial law on the basis of having ceased to work because continuing to work would have entailed danger to the claimant, the claimant’s unborn child, or a child the claimant is breast-feeding.

The benefit period can be further extended under s 10(11) where a claimant can prove that for any week during the extension period, he or she was not entitled to benefit, again for any reason stated in s 10(10).

The length of any benefit period extended for these reasons cannot exceed 104 weeks (EI Act, s 10(14)).

G. Payment of Regular Benefits

Where a benefit period for regular benefits has been established for a claimant, benefits may be paid to the claimant for each week of unemployment that falls in the benefit period, subject to the maximum benefit periods established in EI Act, s 12.

The maximum number of weeks for which benefits may be paid in a benefit period (other than special benefits) are determined in accordance with the table in Schedule I of the EI Act by reference to the regional rate of unemployment that applies to the claimant and the number of hours of insurable employment of the claimant in their qualifying period.

Refer to Canada’s EI Economic Region map to determine whether the claimant was living in one of the economic regions: http://srv129.services.gc.ca/eiregions/eng/canada.aspx.

H. Termination of Benefit Period

Once a benefit period is established, it continues to run notwithstanding that the claimant may have returned to work (though full benefits will not actually be paid in this case), unless the benefit period is terminated.

Section 10(8) states that a benefit period terminates when:

1. no further benefits are payable to the claimant in his or her benefit period;

2. the benefit period would otherwise end under this section; and

3. the claimant:

a) asks that the benefit period end;

b) makes a new initial claim for benefit; and

c) qualifies to receive benefit under this part of the EI Act.

NOTE: The way benefit rates are calculated under the EI Act can make the timing of the decision to end one claim and start a new one crucial. Therefore, it may be better for a claimant to terminate an existing benefit period prior to its expiration and establish a new one, in order to use working periods during the benefit period that may improve his or her benefit rate or attachment.


© Copyright 2017, The Greater Vancouver Law Students' Legal Advice Society.


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