Employment Insurance (EI)

Reasons and decision

Persons in attendance

The Appellant, Mr. D. G., did not attend the hearing held on October 22, 2015. The Canada Employment Insurance Commission (the Commission) did not attend.

Should a party fail to attend a hearing, the Social Security Tribunal (the Tribunal) may proceed in the party’s absence if the Tribunal is satisfied that the party received notice of the hearing, under subsection 12(1) of the Social Security Tribunal Regulations.

The Tribunal would like to point out that a notice of hearing was mailed to the Appellant on September 17, 2015 to the same address contained in the file. Several documents were mailed to this address and they were not returned by Canada Post.

Decision

[1] The Tribunal finds that the Appellant had not accumulated enough hours of insurable employment to establish a claim for employment insurance benefits under section 7 of the Act. The appeal is dismissed.

Introduction

[2] This appeal was heard via teleconference for the following reasons:

1. The information in the file, including the need to obtain additional information;
2. This form of hearing most effectively meets the parties’ needs for accommodation;
3. This form of hearing complies with the requirement under the Social Security Tribunal Regulations to proceed as informally and as quickly as circumstances, fairness and natural justice permit.

[3] On January 7, 2015, the Appellant filed a claim for employment insurance sickness benefits effective January 4, 2015 (GD3-3 to GD3-12).

[4] On February 9, 2015, in its notice of decision, the Commission informed the Appellant that he had accumulated only 422 hours of insurable employment between January 5, 2014 and January 3, 2015. The Appellant had to have accumulated 630 hours of insurable employment to be entitled to the benefits (GD3-18).

[5] On February 18, 2015, the Appellant filed a request for reconsideration of the Commission’s administrative decision. It should be pointed out that he did not voluntarily leave his employment; it was because he was incarcerated (GD3-19 to GD3-26).

[6] On March 11, 2015, the Commission informed the Appellant that it had not amended its decision rendered on February 9, 2015 2015 (GD3-28).

[7] On April 24, 2015, the Appellant filed an appeal with the Tribunal. In his notice of appeal, the Appellant stated that the Commission should take into account the hours accumulated with Service LMC.

Issue

[8] Did the Appellant have enough hours of insurable employment to establish a claim for employment insurance benefits under section 7 of the Act?

The law

[9] Subsection 7(1) of the Act:

Unemployment benefits are payable as provided in this Part to an insured person who qualifies to receive them.

[10] Subsection 7(2) of the Act:

An insured person, other than a new entrant or re-entrant to the labour force, qualifies if the person

1. (a) has had an interruption of earnings from employment; and 
2. (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. 

Table

Regional Rate of Unemployment	Required Number of Hours of Insurable Employment in Qualifying Period
6% and under	700
more than 6% but not more than 7%	665
more than 7% but not more than 8%	630
more than 8% but not more than 9%	595
more than 9% but not more than 10%	560
more than 10% but not more than 11%	525
more than 11% but not more than 12%	490
more than 12% but not more than 13%	455
more than 13%	420

[11] Subsection 7(4) of the Act:

An insured person is a new entrant or a re-entrant to the labour force if, in the last 52 weeks before their qualifying period, the person has had fewer than 490

1. (a) hours of insurable employment;
2. (b) hours for which benefits have been paid or were payable to the person, calculated on the basis of 35 hours for each week of benefits;
3. (c) prescribed hours that relate to employment in the labour force; or
4. (d) hours comprised of any combination of those hours.

[12] Subsection 8(1) of the Act:

Subject to subsections (2) and (7), the qualifying period of an insured person is the shorter of

1. (a) the 52-week period immediately before the beginning of a benefit period under subsection 10(1), and
2. (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 subsection 10(1).

[13] Subsection 8(2) of the Act:

A qualifying period mentioned in paragraph (1)(a) is extended by the aggregate of any weeks during the qualifying period for which the person proves, in such manner as the Commission may direct, that throughout the week the person was not employed in insurable employment because the person was

1. (a) incapable of work because of a prescribed illness, injury, quarantine or pregnancy;
2. (b) confined 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;
3. (c) receiving assistance under employment benefits; or
4. (d) receiving payments under a provincial law on the basis of having ceased to work because continuing to work would have resulted in danger to the person, her unborn child or a child whom she is breast-feeding.

“The requirements under subsection 7(2) of the Act do not allow any discrepancy and provide no discretion.” Lévesque, 2001 FCA 304

“Hours accumulated outside of the qualifying period cannot be used to qualify the claimant for benefits.” Haile, 2008 FCA 19.3

Evidence

[14] Record of employment W35383511 indicated that between July 9, 2014 and September 25, 2014, the Appellant accumulated 422 hours of insurable employment. Reason for record: “Other” (GD3- 13).

[15] The Appellant was incarcerated between September 26, 2014 and December 30, 2014. Thus he had to quit his job (GD3-14).

[16] Record of employment W31084032 indicated that between January 7, 2013 and December 17, 2013, he accumulated 763 hours of insurable employment. Reason for record: “Illness” (GD3-34).

[17] Record of employment K01821167 indicated that between June 25, 2013 and August 29, 2013, he accumulated 298 hours of insurable employment. Reason for record: “Quit” (GD2-8).

[18] In his notice of appeal received by the Tribunal on April 2, 2015, the Appellant pointed out that the record of employment from Service LMC (GD2-8) should have been taken into account because it was not part of the calculation at the time of the December 2013 claim (GD2-3).

Submissions

[19] The Appellant pointed out that:

1. he quit his job at Groupe Cirtech Inc because of a ruling by a provincial court judge to send him to prison;
2. he was contesting the fact that a record of employment from the employer Service LMC (9206-0730 Québec Inc.), prior to the qualifying period, was not used in calculating the claim and he was asking that this record of employment be taken into account;
3. he claimed that the qualifying period is 104 weeks, not 52 weeks; this would include the record of employment from Service LMC.

[20] The Respondent argued that:

1. subsection 7(2) of the Act stipulates that the insured person qualifies for employment insurance benefits if the person has had an interruption of earnings from employment and has had during their qualifying period at least the number of hours of insurable employment set out in the table in this subsection in relation to the regional rate of unemployment that applies to the person;
2. the claimant’s qualifying period was determined as January 5, 2014 to January 3, 2015 under paragraph 8(1)(a) of the Act;
3. the Appellant was not a new entrant or re-entrant to the labour force under subsection 7(4) of the Act because he had accumulated at least 490 hours of work in the labour market in the last 52 weeks before his qualifying period. The Appellant needed the number of hours of insurable employment specified in paragraph 7(2)(b) of the Act;
4. based on the table in subsection 7(2) of the Act and on the rate of unemployment of 7.3% in the region where the claimant lived, the minimum number of hours required to qualify for employment insurance benefits was 630 hours. Unfortunately, the Appellant had accumulated only 422 hours of insurable employment during his qualifying period.
5. nothing justifies extending the qualifying period beyond 52 weeks.

Analysis

[21] Subsection 7(1) of the Act stipulates that benefits are payable to an insured person who qualifies to receive them.

[22] To meet the requirements of subsection 7(2) of the Act, the Appellant must not be a new entrant or a re-entrant to the labour force and must meet the prescribed qualification requirement of having during his qualifying period at least the number of hours of insurable employment set out in the table in paragraph 7(2)(b) of the Act.

“The requirements under subsection 7(2) of the Act do not allow any discrepancy and provide no discretion.” Lévesque, 2001 FCA 304.

[23] Subsection 7(4) of the Act defines a new entrant or re-entrant to the labour force as a person who has had fewer than 490 hours of insurable employment in the last 52 weeks before their qualifying period.

[24] Subsection 8(1) of the Act establishes that in the instant case, it is the 52-week period immediately before the beginning of a benefit period under subsection 10(1) that must be taken into consideration.

[25] Subsection 8(2) of the Act states that the qualifying period mentioned in paragraph (1)(a) is extended by the aggregate of any weeks.

[26] In the instant case, under subsection 7(4) of the Act, the Appellant is not a new entrant or re-entrant to the labour force because he had accumulated more than 490 hours of insurable employment in the labour force in the last 52 weeks before his qualifying period.

[27] The qualifying period establishes the number of hours of insurable employment that will be used to determine whether the Appellant qualifies for benefits.

[28] The qualifying period is the 52-week period preceding the claim for benefits. The Appellant submitted a claim for benefits effective January 4, 2015. Thus, his qualifying period is between January 5, 2014 and January 3, 2015 under paragraph 8(1)(a) of the Act. Based on his record of employment W35383511, the Appellant worked between July 9, 2014 and September 25, 2014 and accumulated 422 hours of insurable employment (GD3-13).

[29] It is recognized that the required number of hours in an economic region is linked to the rate of unemployment in that region. The Appellant lived in the Central Quebec region where the unemployment rate was 7.3 %; hence, he needed 630 hours of insurable employment to qualify for benefits.

[30] During the Appellant’s period of employment, he worked, in chronological order, at Groupe Cirtech Inc from January 7, 2013 to December 17, 2013 where he accumulated 763 hours of insurable employment. He worked at Service LMC from June 25, 2013 to August 29, 2013 and accumulated 298 hours of insurable employment. Finally, he worked at Groupe Cirtech Inc from July 9, 2014 to September 25, 2014 where he accumulated 422 hours of insurable employment; he quit this job voluntarily because he was incarcerated on September 26, 2014. The Appellant stated that he was released on December 30, 2014.

[31] The Appellant asked that record of employment K01821167 dated September 5, 2013 be taken into account because this record falls within the 104-week extension period. It should be noted that under the Act, this record, which is within the 52-week extension period preceding the qualifying period, may be taken into consideration under paragraph 8(2)(b) of the Act if the Appellant proves that in the course of the qualifying period mentioned in paragraph (1)(a), he was not employed in insurable employment because he was confined in a jail and was not found guilty of the offence for which he was being held. However, the Appellant was found guilty of the offence of which he was accused; hence, this did not justify extending the qualifying period beyond 52 weeks.

“[…] a question that arises in the course of a claim concerning a claimant’s number of hours of insurable employment must be determined by an authorized officer of the Canada Customs and Revenue Agency.” Didiodato (2002 FCA 345)

[32] In Canada (Attorney General) v. Borden (2004 FCA 176), the Court upheld the reasons cited in Canada (Attorney General) v. Easson (A-1598-92) affirming that the notions of “loss of employment for misconduct” and “voluntarily leaving without just cause” are rationally linked together because they both refer to situations when loss of employment results from a deliberate action of the employee. By not paying his fines, the Appellant caused his incarceration.

[33] The Tribunal refers to Canada (Attorney General) v. Lavallée (2003 FCA 255) in which the Court determined that even if a claimant did not chose to quit his job, the performance of services is an essential condition of the employment contract, and an employee who, through his own actions, can no longer meet that condition and as a result loses his employment cannot force others to bear the burden of his unemployment.

Conclusion

[34] The appeal is dismissed.