Qualifying for Employment Insurance (8:III)

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A. Insurable Employment

Sections 5(1) and (2) of the EI Act set out what is and what is not insurable employment. Please note that s 5(2) outlines specific instances of employment that are not insurable (i.e. employment in Canada by an international organization, by a foreign government, or by Her Majesty in right of a province). When in doubt, the reader should consult s 5 of the EI Act, and s 3 of the EI Regulations.

Generally, if the employer has deducted EI premiums, then the employment is insurable. However, it is the nature of the employment, and not the premiums paid, that is determinative.

Some disputes are determined solely by the Canada Revenue Agency (CRA). These disputes concern s 90(1) of the EI Act, and include:

a) whether employment is insurable;

b) how long employment lasts, including the dates on which it begins or ends;

c) the amount of any insurable earnings;

d) how many hours an insured person has had insurable employment;

e) whether a premium is payable;

f) the amount of a premium payable;

g) who is the employer of an insured person;

h) whether employers are associated employers; or

i) what amount shall be refunded under s 96(4) - (10);

Appeals of decisions by the CRA are made first to the Minister of National Revenue (within 90 days of being informed of the decision), and then to the Tax Court of Canada (EI Act, s 103). Tax Court decisions can be appealed to the Federal Court of Appeal under s 27 of the Federal Court Act, RSC 1985, c. F-7.

Workers with insurable earnings below $2,000 will have their premiums refunded.

B. Qualifying Period

1. General

To qualify for EI benefits, a claimant must have worked a certain number of hours of insurable employment during the claimant’s qualifying period. The required number of hours may vary according to the location of the claimant, and the unemployment rate in the region they live. The definition of qualifying period is set out in s 8(1) of the EI Act. This is usually the shorter of either:

a) the 52 weeks immediately before the benefit period commences under s 10(1); or

b) the period that begins on the first day of an immediately preceding benefit period and ends with the end of the week before the beginning of a benefit period under s 10(1). I.e., the period between the beginning of a prior claim and the beginning of the present claim.

2. Extensions of the Qualifying Period

However, the qualifying period may be extended (i.e. the Commission will look further back in time) up to a maximum of 104 weeks, as set out in ss 8(2)(a)-(d). It may be extended if the claimant can prove that they was unable to work during any of the weeks of the qualifying period because of:

a) illness, injury, quarantine, or pregnancy;

b) confinement in a jail, penitentiary or other similar institution and was not found guilty of the offence for which the person was being held or any other offence arising out of the same transaction;

c) receiving assistance under employment benefits; or

d) the claimant has left the job due to hazardous work or working conditions. This covers situations where the claimant has ceased to work because to continue would have entailed danger to the worker, the worker’s unborn child, or a child whom the worker is breast-feeding.

NOTE: The extension under (d) is limited to situations where a worker would receive payments under provincial law. Many provinces, including BC, do not yet provide for such payments. Consequently, BC workers cannot use (d) as a ground to extend the qualifying period.

Section 8(3) allows the Commission to extend the qualifying period for persons who were receiving compensation arising from the “complete severance” of a previous employment relationship during the benefit period (e.g. severance pay paid following dismissal).

The absolute maximum extension of a qualifying period is 104 weeks (two years). After 104 weeks, no extensions can be made to the claimant’s qualifying period.

NOTE: the same insurable hours can never be used for two separate claims.

C. Minimum Hours of Employment Required

1. Types of Claimants (As Defined By the EI Act)

Claimants are classified differently depending on their prior “attachment” to the labour market. Major attachment claimants will be able to receive special benefits (See Section VI: Types of Benefits).

a) Major Attachment Claimants

A major attachment claimant is defined in s 6(1) as a claimant who qualifies to receive benefits and who has 600 or more hours of insurable employment in their qualifying period.

Major attachment claimants are eligible for all types of “special” benefits (e.g. pregnancy, parental, and sickness).

b) Minor Attachment Claimants

A minor attachment claimant is defined in s 6(1) as a claimant who qualifies to receive benefits and has fewer than 600 hours of insurable employment in their qualifying period.

Minor attachment claimants cannot receive most special benefits.

2. Youth and EI

As long as a minor is employed in insurable employment and is paying into the plan, a minor is eligible in the same manner as an adult.

3. Hours Required

For claimants to receive the regular benefits, they must meet their s. 7 Table requirements during the qualifying period.

The number of hours required to qualify for benefits is based on the unemployment rate of the region in which the claimant lives. ESDC relies on Statistics Canada’s Labour Force Survey and its “seasonally adjusted average unemployment rate”. Note that several features of the Labour Force survey make the official unemployment rate appear lower or higher than it actually is based on the use of three-month averaging. The current rate of unemployment for each region can be found at: http://srv129.services.gc.ca/ei_regions/eng/rates.aspx?id=2010.

EI Act, s. 7 Table

Regional Rate
Of Unemployment
Required Number of Hours
of Insurable Employment
in the Qualifying Period
6.0% and under 700
over 6.0% to 7.0% 665
over 7.0% to 8.0% 630
over 8.0% to 9.0% 595
over 9.0% to 10.0% 560
over 10.0% to 11.0% 525
over 11.0% to 12.0% 490
over 12.0% to 13.0% 455
over 13.0% 420

For EI purposes, British Columbia is divided into six regions:

a) Southern Interior consisting of Thompson-Nicola, Columbia-Shuswap, Okanagan and Kootenays Regional Districts;

b) Abbotsford, consisting of Mission and Abbotsford;

c) Vancouver, consisting of Greater Vancouver, West Vancouver, North Vancouver, Richmond, Surrey, Delta, Burnaby, Langley, Maple Ridge, Coquitlam, Pitt Meadows and New Westminster;

d) Southern Coastal British Columbia, consisting of Comox-Strathcona, Powell River, Squamish-Lillooet, Fraser Valley, Sunshine Coast, Nanaimo, Alberni-Clayoquot, Cowichan Valley and Capital Regional Districts;

e) Victoria, including Saanich, Metchosin, Oak Bay, Sooke and Esquimalt; and

f) Northern British Columbia.

For more details on the regions, refer to the EI Regulations, Schedule I, s 7. The monthly seasonally adjusted regional rate is available from Statistics Canada online.

NOTE: The Commission reviews the boundaries established for the purposes of employment insurance at least once every five years (EI Regulations, s 18(2)).
NOTE: A claimant who does not qualify at the time of his or her application may subsequently qualify if the regional unemployment rate should rise into a higher category. However, the converse does not apply. That is, once a claimant meets the requirements, he or she will not be cut off if the rate subsequently goes down.
NOTE: The number of hours that an insured person (other than a new or re-entrant to the labour force) needs under s 7 to qualify for benefits is increased to the number shown under s 7.1(1) if one or more violations has occurred in the 260 week period prior to the initial claim (see Section IX: Keeping Out of Trouble).

D. Interruption of Earnings

To establish a claim, the worker must have an “interruption of earnings.” An interruption of earnings is defined as:

Seven or more consecutive days during which the employee performs no work and for which the employee will receive no earnings. (EI Regulations, s.14)

Layoff, the end of a contract and dismissal can all be causes of an interruption of earnings.

A substantial reduction in the hours of work (for example, from full time to one day a week or less) does not meet this definition. Consequently, a worker whose hours are drastically reduced cannot establish a claim unless they have a full week of unemployment. The only exception is for special benefits. However, if there is an interruption of earnings from one of two part-time jobs with the same employer, then the claimant could qualify.

1. Weeks of Unemployment

“Week of unemployment” is defined in s 11(1) of the EI Act: “A week of unemployment for a claimant is a week in which the claimant does not work a full working week”. However, the following subsections of s 11 describe situations which do not amount to an interruption of earnings as defined in s 14.

E. Record of Employment

An employer who completes a paper form must provide an employee with a Record of Employment (a ROE) five days after the first day of the interruption of earnings, or the day on which the employer becomes aware of the interruption of earnings. Many employers do not follow the rules and take longer.

The rules for how and when an employer must file a ROE are different if they fill it out online rather than in paper form. The rules for this are set out in s 19(3.1) of the Employment Insurance Regulations. If the ROE is completed in electronic form, it must be sent to the Commission no later than 5 days after the end of the pay period in which the first day of the interruption of earnings fell. If there are 13 or fewer pay periods in a year, then the ROE must be sent to the Commission no later than 15 days after the first day of the interruption of earnings. An employer who completes a ROE in electronic form is not required to send a copy to the employee.

The ROE contains information important to the EI claim. It sets out the first and last dates of work, the total hours worked and the total earnings, which are used to determine the amount of benefits payable and it also sets out the reason for separation. If it says that the claimant quit or was fired, the Commission must investigate the reasons. Depending on the conclusions of the Commission, the claimant may be disqualified from all regular benefits (see Section V.D: Effect of Earnings).

NOTE: It is important that claimants who have worked more than one job during the qualifying period retain the ROEs from each employer.

If the claimant disagrees with statements in the ROE, he or she can ask the employer to correct them. The claimant should also bring the errors to the Commission's attention at the time of application.

F. Filing an Application

Applications should be filed during the first full week of unemployment (see Appendix A: Checklist for Initial Application for EI Applications). However, as a matter of policy, applications will be automatically “antedated” (see Section IV.B: Antedating) for up to four weeks. If the claimant delays longer than this, they may lose benefits unless he or she is able to show “good cause” for the delay. Because of this, if a claimant cannot get a ROE immediately, they should still go to the nearest Canada Employment Insurance Commission office and complete an application. Usually, the Commission will want to have an ROE before they process the claim, however, claimants should always ensure they apply on time even if they do not yet have their ROE. The Claimant should make efforts to get the ROE from the employer, however if the Claimant is unsuccessful the Commission will contact the employer if the record is not completed on time. If necessary, a claimant may prove his or her employment history and insurable earnings by filing an application supported bypay slips and cheque stubs, etc.

NOTE: Applications may be filed online through the HRDC web site. Applicants filing online must still submit their ROE(s) by mail or in person. If the claimant’s ROE has a “W” or “S” serial number, his or her employer has provided ROE electronically to the local office and the claimant is not required to submit the paper copy. Claimants may review and edit their claim information online by using the “MyEI Information on-line” service provided by service Canada.

For general information about filing an application and about the EI system visit: https://www.canada.ca/en/services/benefits/ei/ei-apply-online.html.

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

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