Employment Insurance (EI)

Decision Information

R. S. v. Canada Employment Insurance Commission

Collection Employment Insurance (EI)
Decision date 2017-06-21
Neutral citation 2017 SSTGDEI 91
Reference number GE-16-4407
Member Gerry McCarthy
Division General Division
Decision Appeal dismissed

Decision Content



On this page

Reasons and decision

Persons in attendance

R. S.(the Appellant)

Introduction

[1] The Appellant established aninitial claim for regular Employment Insurance benefits (EI benefits) onSeptember 4, 2016. The Appellant worked for the “Royal Canadian Air Force”until June 14, 2016, and expected to receive a pension from his employer. TheCanada Employment Insurance Commission (Commission) determined that theAppellant’s weekly pension of $1,108.00 was earnings tobe allocated. The Appellant requested a reconsideration of the Commission’sdecision, which was denied, and the Appellant appealed to the Social SecurityTribunal (Tribunal)

[2] The hearing was held byteleconference for the following reasons: The form of hearing respects therequirement under the Social SecurityTribunal Regulations to proceed as informally and quickly as circumstances,fairness, and natural justice permit.

Issue

[3] The issue is whether thereshould be an allocation of pension payments pursuant to subsection 35 and 36 ofthe Employment Insurance Regulations (EI Regulations).

Evidence

Documentary evidence

[4] The Appellant applied forregular EI benefits on September 9, 2016, and it was established on September4, 2016.

[5] The Appellantworked for the “Royal Canadian Air Force” until June 14, 2016.

[6] The Appellant indicated hewould be receiving a retirement pension from the Canadian Forces beginning onJuly 15, 2016, and the monthly amount was $4,000.00 (Exhibit GD3-6 to GD3-7).

[7] The Appellant’s Record ofEmployment (received by Service Canada on September 5, 2016) was listed inExhibit GD 3-14.

[8] On October 4, 2016, theCommission notified the Appellant that his pension income was earnings to bededucted at a rate of $923.00 per week starting on September 4, 2016, to theend of his claim.

[9] In a request forreconsideration (date stamped by Service Canada October 31, 2016) the Appellantwrote that under EI Regulation 35 retirement pension arising out of employmentor out of service in any armed forces was not earnings to be taken into accountfor the purposes under EI Regulation 14.

[10] On November 4, 2016, theAppellant spoke to the Commission and explained that his pension amount shouldbe $4,800.00 per month. He indicated that he stopped working on June 14, 2016,and the pension would be payable as of June 15, 2016.

[11] On November 4, 2016, theCommission notified the Appellant that they amended their decision to thefollowing: The Appellant’s weekly pension amount of $923.00 had been amended to$1,108.00 per week. The Commission explained this was based on a monthlypayment of $4,800.00 that was effective June 15, 2016.

[12] In a Notice of Appeal (receivedby the Tribunal on November 25, 2016) the Appellant wrote that he was advisedthat Regulation 36 of the EI Regulations was to be taken into consideration ofwhat constituted “earnings” for Employment Insurance determination. Heindicated that that EI Regulation 35 (section 14 through to 17) only referredto allocation of earnings attributable to periods of unemployment. He said thissection did not come into consideration if EI Regulation 35 (5) was correctlyapplied and monies referred to in EI Regulation 35 2(e) (named pensions) wereproperly excluded from earnings. He further wrote that EI Regulation 35(5)stated that pension income arising specifically “out of service in any armed forces or police service” were not taken into account forpurposes of Section 14 interruption of earnings.

Oral evidence from the hearing

[13] The Appellant explained thathis pension was payable on June 15, 2016, but the federal government was“delinquent” in making those payments. He said he went four months withoutreceiving any pension payments. He explained that at the end of July 2016 heshould have started to receive those payments, but did not receive his pensionmonies until the end of October 2016. He indicated that he received aretroactive pension payment at that time. He said there were errors in thedeductions on his pension and they did not settle on a proper amount untilDecember 2016. The Appellant further indicated that when he initiated his EI claim he had no idea when or if he was going to would start receiving thosepension payments. He explained that employees of the “Department of NationalDefence” were forewarned that pension payments were being delayed.

[14] The Appellant then addressedhis Notice of Appeal. He said the Commission referred to a Federal Court ofAppeal decision (MacNeil v. AttorneyGeneral of Canada, 2009 FCA 306) which determined that pension income wasto be allocated. He explained that in the appendix to that decision Commissionseemed to have excluded EI Regulation 35(5) and that was his issue. Heindicated it was confirmed in the “Digest of Benefit Entitlement Principles”which referred to Regulation 35 (4, 5, and 6) which stated some monies wereexcluded from earnings for the purpose of determining an interruption ofearnings and “pensions” were listed. He said he was paid severance by theemployer. He submitted that pensions were excluded from what constitutedearnings.

[15] The Appellant furthersubmitted that if pensions were included in earnings then your EI premiumsshould cease on the day you had a “vested pension” otherwise you would bepaying EI premiums forever after with no possibility of any benefit whatsoever.

[16] The Appellant also explainedthat his employer advised him one-year before June 14, 2016, that hisretirement was mandatory at age 60. He explained that he had to reach amutually agreeable date (no later than September 4, 2016) to separate himselffrom the employer. He further indicated that he neededan explanation as to why section 35(5) of the EI Regulations did not seem toapply in these cases.

Submissions

[17] The Appellant submitted that:

  1. EI Regulation 35 (section 14through to 17) only referred to allocation of earnings attributable to periodsof unemployment. This section did not come into consideration if Regulation35(5) was correctly applied and monies referred to in EI Regulations 35 section2(e) (named pensions) were properly excluded from earnings.
  2. EI Regulation 35(5) statedthat pension income arising specifically “out of service in any armed forces orpolice service” were not taken into account for purposes of Section 14interruption of earnings.
  3. If pensions were included inearnings then your EI premiums should cease on the day you had a “vestedpension” otherwise you would be paying EI premiums forever after with nopossibility of any benefit whatsoever.
  4. He needed an explanation asto why section 35(5) of the EI Regulations did not seem to apply in thesecases.

[18] The Respondentsubmitted that:

  1. The Appellant submitted thathis pension was not considered earnings based on 35(5) of the EI Regulations.In this case, the Appellant had misinterpreted the meaning. EI Regulation 35(5)referred to the fact that pension monies were not considered earnings whendetermining if an interruption of earnings had occurred. This was taken intoconsideration in the establishment of the Appellant’s claim as he ceasedworking on June 14, 2016, and the pension immediately became payable on June15, 2016. The benefit period was established on September 4, 2016, as he had aninterruption of earnings as per subsection 14(1) of the EI Regulations whichindicated that pension monies were not earnings to be taken into account forthe purposes of an interruption of earnings.
  2. The Appellantreceived a monthly pension from the “Royal Canadian Air Force” beginning onJune 15, 2016. The monthly entitlement was $4,800.00. The Appellant’sretirement pension income from the “Royal Canadian Air Force” constitutedearnings pursuant to subsection 35(2)(e) of the EI Regulations and must beallocated pursuant to subsection 36(14) of the EI Regulations at $1,108.00 perweek commencing June 15, 2016.
  3. The jurisprudence supportsthe decision. The Federal Court of Appeal (FCA) re- affirmed the principle thatwhere there was a clear and direct linkage between the claimant’s employmentand the Pension Plan out of which he or she received the monthly payments. Thepension constituted earnings within the meaning and for the purposes ofsections 35 and 36 of the EI Regulations (MacNeil v. Attorney General of Canada, 2009 FCA 306).

Analysis

[19] The relevant legislative provisions are reproduced in theAnnex to this decision.

[20] The Tribunal must decidewhether there should be an allocation of pension payments pursuant tosubsection 35 and 36 of the EI Regulations.

Background

[21] The Tribunal finds theAppellant applied for regular EI benefits on September 9, 2016, and establisheda claim on September 4, 2016.

[22] The Tribunal recognizes theAppellant worked for the “Royal Canadian Air Force” until June 14, 2016. TheAppellant indicated on his application for benefits that he would be receivinga retirement pension from the employer beginning on July 15, 2016

[23] On October 4, 2016, theCommission notified the Appellant that his pension income was earnings to bededucted at a rate of $923.00 per week starting on September 4, 2016, to theend of his claim.

[24] The Appellant subsequentlyconfirmed that his pension was payable on June 15, 2016, and the amount wouldbe $4,800.00 per month.

[25] The Tribunal recognizes thaton November 4, 2016, the Commission notified the Appellant that they amendedtheir decision to the following: The Appellant’s weekly pension amount of $923.00 was amended to $1,108.00 per week which was based on a monthlypayment of $4,800.00 that was effective June 15, 2016.

[26] The Tribunal realizes theAppellant did not receive his pension monies until approximately the end ofOctober 2016 when he was provided a retroactive payment. During the hearing,the Appellant further explained there were errors in the deductions on hispension and they did not settle on a proper amount until December 2016.

Relevant legislation

[27] The Tribunal does recognizethe Appellant submitted that his pension monies should be excluded fromallocation based on EI Regulation 35(5). The Tribunal will address theAppellant’s submissions in a moment, but will initially cite the relevantlegislation for the issue under appeal. First: Subsection 35(1) of theRegulations states that: The definitions in this subsection apply in thissection

“pension” means aretirement pension

  1. (a) arising out ofemployment or out of service in any armed forces or in a police force;

[28] Second: Section 35 (2)(e) ofthe EI regulations states that: Subject to the other provisions of thissection, the earnings to be taken into account for the purpose of determiningwhether an interruption of earnings under section 14 has occurred and theamount to be deducted from benefits payable under section 19, subsection 21(3),22(5), 152.03(3) or 152.04(4) or section 152.18 of theAct, and to be taken into account for the purposes of sections 45 and 46 of theAct, are the entire income of a claimant arising out of any employment,including

  1. (e) the moneys paidor payable to a claimant on a periodic basis or in a lump sum on account of orin lieu of a pension;

[29] Third: Section 36(14) of the EI regulations states that: The moneys referred to in paragraph 35(2) (e) thatare paid or payable to a claimant on a periodic basis shall be allocated to theperiod for which they are paid or payable.

Were the Appellant’s pension monies allocableearnings?

[30] The Tribunal finds theAppellant’s weekly pension amount of $1,108.00 per week was based on a monthlypayment of $4,800.00 that was effective June 15, 2016. The Tribunal realizesthe Appellant did not receive his first pension payment until approximately theend of October 2016. Nevertheless, the Tribunal finds the Appellant’s pensionfrom the “Royal Canadian Air Force” would meet the definition of a pensionunder section 35 of the EI Regulations and would be earnings pursuant tosection 35 (2)(e) of the EI Regulations. Furthermore: The Tribunal finds theCommission (the Respondent) correctly allocated these pension earnings undersection 36(14) of the EI Regulations to the date in which they were paid orpayable (June 15, 2016).

The Appellant’s submissions

[31] The Appellant submitted that EI Regulation 35 (section 14 through to 17) only referred to allocation ofearnings attributable to periods of unemployment. He argued this section didnot come into consideration if EI Regulation 35(5) was correctly applied andmonies referred to in EI Regulations 35 section 2(e) (named pensions) wereproperly excluded from earnings. In short: The Appellant argued that EI Regulation 35 (5) stated that pension income arising specifically “out ofservice in any armed forces or police service” were not taken into account forpurposes of Section 14 interruption of earnings.

[32] The Tribunal does recognize theAppellant has taken time to examine the EI Act and EI Regulations for the issueunder appeal. Nevertheless, EI Regulation 35(5) referred to the fact thatpension monies were not considered earnings “when determining if aninterruption of earnings had occurred.” The Tribunal wishes to emphasize thatthe specific wording “when determining if an interruption of earnings hadoccurred” was critical to understanding this EI Regulation. The Respondent didexplain in their submissions that this was taken into consideration in theestablishment of the Appellant’s claim as he stopped working on June 14, 2016,and the pension immediately became payable on June 15,2016. The Respondent further clarified that the Appellant’s benefit period wasestablished on September 4, 2016, as he had an “interruption of earnings” asper subsection 14(1) of the EI Regulations which indicated pension monies werenot earnings to be taken into account “for the purposes of an interruption ofearnings.”

[33] The Tribunal does realizethe Appellant wanted an explanation as to why section EI Regulation 5(5) didapply in his case. As cited above, the Appellant’s pension monies wereconsidered earnings under EI Regulation 35(2) (e) and therefore must beallocated to the date they were paid or payable under EI Regulation 36(14). TheTribunal recognizes the Appellant was frustrated with the EI Regulations onthis matter. Nevertheless, the Tribunal must apply the legislation. In short:The Tribunal cannot ignore, re-fashion, circumvent or re-write the EI Act and EI Regulations even in the interest of fairness and compassion (Knee v. Attorney General of Canada, 2011FCA 301).

Summary

[34] The Tribunal has examinedall the evidence and submissions in making a decision. The Tribunal furtherrelies for guidance on the Federal Court of Appeal (FCA) which specificallyaffirmed the principle that where there was “a clear and direct linkage”between a claimant’s employment and the pension plan out of which he or shereceived the monthly payments the pension constituted earnings within themeaning and for the purposes of sections 35 and 36 of the EI Regulations (MacNeil v. Attorney General of Canada,2009 FCA 306).

[35] In the final analysis, theTribunal finds the Appellant’s pension monies were earnings and correctlyallocated pursuant to subsection 35(2)(e) and 36 (14) of the EI Regulations.

Conclusion

[36] The appeal isdismissed.

Annex

The law

Employment Insurance Act Employment Insurance Regulations
  1. 35 (1) Thedefinitions in this subsection apply in this section.
  2. employment means
    1. (a) anyemployment, whether insurable, not insurable or excluded employment, under anyexpress or implied contract of service or other contract of employment,
      1. (i) whether or not services are orwill be provided by a claimant to any other person, and
      2. (ii) whetheror not income received by the claimant is from a person other than the personto whom services are or will be provided;
    2. (b) any self-employment, whether onthe claimant's own account or in partnership or co- adventure; and
    3. (c) thetenure of an office as defined in subsection 2(1) of the Canada Pension Plan. (emploi)
  3. income means anypecuniary or non-pecuniary income that is or will be received by a claimantfrom an employer or any other person, including a trustee in bankruptcy. (revenu)
  4. pension means a retirement pension
    1. (a) arising out of employment or out of service in any armed forces or in apolice force;
    2. (b) under the Canada Pension Plan;or
    3. (c) under a provincial pension plan. (pension)
  5. self-employed person has the samemeaning as in subsection 30(5). (travailleurindépendant)
  6. (2) Subject to the other provisions ofthis section, the earnings to be taken into account for the purpose ofdetermining whether an interruption of earnings under section 14 has occurredand the amount to be deducted from benefits payable under section 19,subsection 21(3), 22(5), 152.03(3) or 152.04(4) or section 152.18 of the Act,and to be taken into account for the purposes ofsections 45 and 46 of the Act, are the entire income of a claimant arising outof any employment, including
    1. (a) amountspayable to a claimant in respect of wages, benefits or other remuneration fromthe proceeds realized from the property of a bankrupt employer;
    2. (b) workers'compensation payments received or to be received by a claimant, other than alump sum or pension paid in full and final settlement of a claim made forworkers' compensation payments;
    3. (c) payments a claimant has received or, on application, is entitled toreceive under
      1. (i) agroup wage-loss indemnity plan,
      2. (ii) a paid sick, maternity or adoption leave plan,
      3. (iii) aleave plan providing payment in respect of the care of a child or childrenreferred to in subsection 23(1) or 152.05(1) of the Act,
      4. (iv) aleave plan providing payment in respect of the care or support of a familymember referred to in subsection 23.1(2) or 152.06(1) of the Act, or
      5. (v) aleave plan providing payment in respect of the care or support of a criticallyill child;
    4. (d) notwithstandingparagraph (7)(b) but subject to subsections (3) and (3.1), the payments aclaimant has received or, on application, is entitled to receive from a motorvehicle accident insurance plan provided under a provincial law in respect ofthe actual or presumed loss of income from employment due to injury, if thebenefits paid or payable under the Act are not taken into account indetermining the amount that the claimant receives or is entitled to receivefrom the plan;
    5. (e) themoneys paid or payable to a claimant on a periodic basis or in a lump sum onaccount of or in lieu of a pension; and
    6. (f) wherethe benefits paid or payable under the Act are not taken into account indetermining the amount that a claimant receives or is entitled to receivepursuant to a provincial law in respect of an actual or presumed loss of incomefrom employment, the indemnity payments the claimant has received or, onapplication, is entitled to receive pursuant to that provincial law by reasonof the fact that the claimant has ceased to work for the reason thatcontinuation of work entailed physical dangers for
      1. (i) the claimant,
      2. (ii) the claimant's unborn child, or
      3. (iii) the child the claimant is breast-feeding.
  7. (3) Where, subsequent to the week inwhich an injury referred to in paragraph (2)(d) occurs, a claimant hasaccumulated the number of hours of insurable employment required by section 7or 7.1 of the Act, the payments referred to in thatparagraph shall not be taken into account as earnings.
  8. (3.1) If a self-employed person hassustained an injury referred to in paragraph (2)(d) before the beginning of theperiod referred to in section 152.08 of the Act, the payments referred to inthat paragraph shall not be taken into account as earnings.
  9. (4) Notwithstanding subsection (2),the payments a claimant has received or, on application, is entitled to receiveunder a group sickness or disability wage-loss indemnity plan or a workers'compensation plan, or as an indemnity described in paragraph (2)(f), are notearnings to be taken into account for the purpose of subsection 14(2).
  10. (5) Notwithstanding subsection (2),the moneys referred to in paragraph (2)(e) are not earnings to be taken intoaccount for the purposes of section 14.
  11. (6) Notwithstanding subsection (2),the earnings referred to in subsection 36(9) and allowances that would not bededucted from benefits by virtue of subsection 16(1) are not earnings to betaken into account for the purposes of section 14.
  12. (7) That portion of the income of aclaimant that is derived from any of the following sources does not constituteearnings for the purposes referred to in subsection (2):
    1. (a) disabilitypension or a lump sum or pension paid in full and final settlement of a claimmade for workers' compensation payments;
    2. (b) paymentsunder a sickness or disability wage-loss indemnity plan that is not a groupplan;
    3. (c) relief grants in cash or in kind;
    4. (d) retroactive increases in wages or salary;
    5. (e) the moneys referred to in paragraph (2)(e) if
      1. (i) in thecase of a self-employed person, the moneys became payable before the beginningof the period referred to in section 152.08 of the Act, and
      2. (ii) in thecase of other claimants, the number of hours of insurable employment requiredby section 7 or 7.1 of the Act for the establishment of their benefit periodwas accumulated after the date on which those moneys became payable and duringthe period in respect of which they received those moneys; and
    6. (f) employmentincome excluded as income pursuant to subsection 6(16) of the Income Tax Act.
  13. (8) For the purposes of paragraphs(2)(c) and (7)(b), a sickness or disability wage-loss indemnity plan is not agroup plan if it is a plan that
    1. (a) is notrelated to a group of persons who are all employed by the same employer;
    2. (b) is not financed in whole or in part by an employer;
    3. (c) is voluntarily purchased by the person participating in the plan;
    4. (d) is completely portable;
    5. (e) providesconstant benefits while permitting deductions for income from other sources,where applicable; and
    6. (f) hasrates of premium that do not depend on the experience of a group referred to inparagraph (a).
  14. (9) For the purposes of subsection(8), "portable", in respect of a plan referred to in that subsection,means that the benefits to which an employee covered by the plan is entitledand the rate of premium that the employee is required to pay while employed byan employer will remain equivalent if the employee becomes employed by anyother employer within the same occupation.
  15. (10) For the purposes of subsection (2), "income" includes
    1. (a) in thecase of a claimant who is not self-employed, that amount of the claimant'sincome remaining after deducting
      1. (i) expensesincurred by the claimant for the direct purpose of earning that income, and
      2. (ii) the value of any consideration supplied by the claimant; and
    2. (b) in thecase of a claimant who is self-employed in farming, the gross income from thatself-employment, including any farming subsidies the claimant receives underany federal or provincial program, remaining after deducting the operatingexpenses, other than capital expenditures, incurred in that self-employment;
    3. (c) in thecase of a claimant who is self-employed in employment other than farming, the amountof the gross income from that employment remaining after deducting theoperating expenses, other than capital expenditures, incurred therein; and
    4. (d) in thecase of any claimant, the value of board, living quarters and other benefitsreceived by the claimant from or on behalf of the claimant's employer inrespect of the claimant's employment.
  16. (11) Subject to subsection (12), the value of the benefits referred to inparagraph (10)(d) shall be the amount fixed by agreement between the claimantand the claimant's employer and shall be an amount that is reasonable in thecircumstances.
  17. (12) Where the claimant and the employer do not agree on the value of thebenefits referred to in paragraph (10)(d), or where the value fixed for thosebenefits by agreement between the claimant and the claimant's employer is notreasonable in the circumstances, the value shall be determined by theCommission based on the monetary value of the benefits.
  18. (13) The value of living quartersreferred to in paragraph (10)(d) includes the value of any heat, light,telephone or other benefits included with the living quarters.
  19. (14) Where the value of living quartersis determined by the Commission, it shall be computed on the rental value ofsimilar living quarters in the same vicinity or district.
  20. (15) Where the remuneration of aclaimant is not pecuniary or is only partly pecuniary and all or part of thenon-pecuniary remuneration consists of any consideration other than livingquarters and board furnished by the employer, the value of that considerationshall be included in determining the claimant's income.
  21. (16) For the purposes of this section,living quarters means rooms or any other living accommodation.
  22. 36 (1) Subject to subsection (2), the earnings of aclaimant as determined under section 35 shall be allocated to weeks in themanner described in this section and, for the purposes referred to insubsection 35(2), shall be the earnings of the claimant for those weeks.
  23. (2) For the purposes of this section,the earnings of a claimant shall not be allocated to weeks during which theydid not constitute earnings or were not taken into account as earnings undersection 35.
  24. (3) Where the period for which earnings of a claimant are payable does notcoincide with a week, the earnings shall be allocated to any week that iswholly or partly in the period in the proportion that the number of days workedin the week bears to the number of days worked in the period.
  25. (4) Earnings that are payable to aclaimant under a contract of employment for the performance of services shallbe allocated to the period in which the services were performed.
  26. (5) Earnings that are payable to aclaimant under a contract of employment without the performance of services orpayable by an employer to a claimant in consideration of the claimant returningto or beginning work shall be allocated to the period for which they arepayable.
  27. (6) The earnings of a claimant who isself-employed, or the earnings of a claimant that are from participation inprofits or commissions, that arise from the performance of services shall beallocated to the weeks in which those services are performed.
  28. (6.1) The earnings of a claimant who is self-employed, or the earnings ofa claimant that are from participation in profits or commissions, that arisefrom a transaction shall be allocated
    1. (a) if theaggregate amount of earnings that arise from a transaction occurring in a weekis greater than the maximum yearly insurable earnings referred to in section 4of the Act divided by 52, to the weeks in which the work that gave rise to thetransaction was performed, in a manner that is proportional to the amount ofwork that was performed during each of those weeks or, if no such work wasperformed, to the week in which the transaction occurred; or
    2. (b) if theaggregate amount of earnings that arise from a transaction occurring in a weekis less than or equal to the maximum yearly insurable earnings referred to insection 4 of the Act divided by 52, to the week in which the transactionoccurred or, if the claimant demonstrates that the work that gave rise to thetransaction occurred in more than one week, to the weeks in which the earningswere earned, in a manner that is proportional to the amount of work that wasperformed during each of those weeks.
  29. (6.2) The earnings of a claimant who is self-employed, or the earnings ofa claimant that are from participation in profits or commissions, that do notarise from the performance of services or from a transaction shall be allocatedequally to each week falling within the period in which the earnings wereearned.
  30. (7) The earnings of a claimant who is self-employed in farming shall beallocated
    1. (a) ifthey arose from a transaction, in accordance with subsection (6.1); and
    2. (b) ifthey were received in the form of a subsidy, to the week in which the subsidywas paid.
  31. (8) Where vacation pay is paid orpayable to a claimant for a reason other than a lay-off or separation from anemployment, it shall be allocated as follows:
    1. (a) wherethe vacation pay is paid or payable for a specific vacation period or periods,it shall be allocated
      1. (i) to anumber of weeks that begins with the first week and ends not later than thelast week of the vacation period or periods, and
      2. (ii) insuch a manner that the total earnings of the claimant from that employment are,in each consecutive week, equal to the claimant’s normal weekly earnings fromthat employment; and
    2. (b) in any other case, the vacation pay shall, when paid, be allocated
      1. (i) to anumber of weeks that begins with the first week for which it is payable, and
      2. (ii) insuch a manner that, for each week except the last, the amount allocated underthis subsection is equal to the claimant’s normal weekly earnings from thatemployment.
  32. (9) Subject to subsections (10) to(11), all earnings paid or payable to a claimant by reason of a lay-off orseparation from an employment shall, regardless of the period in respect ofwhich the earnings are purported to be paid or payable, be allocated to anumber of weeks that begins with the week of the lay-off or separation in sucha manner that the total earnings of the claimant from that employment are, ineach consecutive week except the last, equal to the claimant’s normal weeklyearnings from that employment.
  33. (10) Subject to subsection (11), whereearnings are paid or payable to a claimant by reason of a lay-off or separationfrom an employment subsequent to an allocation under subsection (9) in respectof that lay-off or separation, the subsequent earnings shall be added to theearnings that were allocated and, regardless of the period in respect of whichthe subsequent earnings are purported to be paid or payable, a revisedallocation shall be made in accordance with subsection (9) on the basis of that total.
  34. (10.1) The allocation of the earnings paid or payable to a claimant byreason of a lay-off or separation from an employment made in accordance withsubsection (9) does not apply if
    1. (a) the claimant’s benefit periodbegins in the period beginning on January 25, 2009 and ending on May 29, 2010;
    2. (b) theclaimant contributed at least 30% of the maximum annual employee’s premium inat least seven of the 10 years before the beginning of the claimant’s benefitperiod;
    3. (c) theCommission paid the claimant less than 36 weeks of regular benefits in the 260weeks before the beginning of the claimant’s benefit period; and
    4. (d) duringthe period in which the earnings paid or payable by reason of the claimant’slay-off or separation from an employment are allocated in accordance withsubsection (9) or, if the earnings are allocated to five weeks or less, duringthat period of allocation or within six weeks following the notification of theallocation, the claimant is referred by the Commission, or an authority that theCommission designates, under paragraph 25(1)(a) of the Act, to a course orprogram of instruction or training
      1. (i) thatis full-time,
      2. (ii) thathas a duration of at least 10 weeks or that costs at least $5,000 or 80% of theearnings paid or payable by reason of the claimant’s lay-off or separation fromemployment,
      3. (iii) for which the claimant assumes the entire cost, and
      4. (iv) thatbegins during one of the 52 weeks following the beginning of the claimant’sbenefit period.
  35. (10.2) If any of the conditions under which the Commission may terminatethe claimant’s referral under paragraph 27(1.1)(b) of the Act exists, theearnings paid or payable to the claimant by reason of a lay-off or separationfrom an employment shall be re-allocated under subsection (9).
  36. (11) Where earnings are paid or payablein respect of an employment pursuant to a labour arbitration award or thejudgment of a tribunal, or as a settlement of an issue that might otherwisehave been determined by a labour arbitration award or the judgment of atribunal, and the earnings are awarded in respect of specific weeks as a resultof a finding or admission that disciplinary action was warranted, the earningsshall be allocated to a number of consecutive weeks, beginning with the firstweek in respect of which the earnings are awarded, in such a manner that thetotal earnings of the claimant from that employment are, in each week exceptthe last week, equal to the claimant’s normal weekly earnings from thatemployment.
  37. (12) The following payments shall beallocated to the weeks in respect of which the payments are paid or payable:
    1. (a) paymentsin respect of sick leave, maternity leave or adoption leave or leave for thecare of a child or children referred to in subsection 23(1) or 152.05(1) of theAct;
    2. (b) payments under a group sickness or disability wage-loss indemnity plan;
    3. (c) payments referred to in paragraphs 35(2)(d) and (f);
    4. (d) workers’compensation payments, other than a lump sum or pension paid in full and finalsettlement of a claim made for workers’ compensation payments;
    5. (e) payments in respect of the care orsupport of a family member referred to in subsection 23.1(2) or 152.06(1) ofthe Act; and
    6. (f) payments in respect of the care or support of a critically ill child.
  38. (13) A payment paid or payable to aclaimant in respect of a holiday or non-working day that is observed as such bylaw, custom or agreement, or a holiday or non-working day immediately precedingor following a holiday or non-working day that occurs at the establishment ofthe employer or former employer from whom the claimant receives that payment,shall be allocated to the week in which that day occurs.
  39. (14) The moneys referred to inparagraph 35(2)(e) that are paid or payable to a claimant on a periodic basisshall be allocated to the period for which they are paid or payable.
  40. (15) The moneys referred to inparagraph 35(2)(e) that are paid or payable to a claimant in a lump sum shallbe allocated beginning with the first week that those moneys are paid orpayable to the claimant in such a manner that those moneys are equal in eachweek to the weekly amount, calculated in accordance with subsection (17), towhich the claimant would have been entitled if the lump sum payment had beenpaid as an annuity.
  41. (16) The moneys allocated in accordancewith subsection (14) or (15) shall not be taken into account in the allocationof other earnings under this section.
  42. (17) The weekly amount shall becalculated in accordance with the following formula, according to the claimant’sage on the day on which the lump sum payment is paid or payable:
  43. A / B
  44. where
  45. A is the lump sumpayment; and
  46. B is the estimatedactuarial present value* of $1 payable at the beginning of every week startingfrom the day on which the lump sum payment is paid or payable and payable forthe claimant’s lifetime, as calculated each year in accordance with thefollowing formula and effective on January 1 of the year following itscalculation:
  47. B = [Ót = 0 to infinity of (tPx/ (1+ i)t) - 0.5] Χ 52
  48. where
  49. tPx is the probability that the claimant will survive for “t” years fromthe claimant’s age “x” using the latest Canadian mortality rates used in thevaluation of the Canada Pension Plan prorated in equal parts between males andfemales,
  50. i is the annualizedlong-term Government of Canada benchmark bond yields averaged over the 12-monthperiod beginning on the September 1 and ending on the August 30 before theJanuary 1 on which the estimated actuarial present values are effective, expressedas a percentage and rounded to the nearest one tenth of a percentage, and
  51. t is the number ofyears that the claimant survives according to the claimant’s age for which theprobablity of survival is estimated by tPx.
  52. *Note: The estimated actuarial present values arepublished annually on the Service Canada website.
  53. (18) Earnings that are payable to aclaimant under a government program intended to encourage re-employment andthat are payable to the claimant as a supplement to earnings arising from acontract of employment shall be allocated to the period for which they arepayable.
  54. (19) Where a claimant has earnings towhich none of subsections (1) to (18) apply, those earnings shall be allocated
    1. (a) ifthey arise from the performance of services, to the period in which theservices are performed; and
    2. (b) if they arise from a transaction, to the week in which the transactionoccurs.
  55. (20) For the purposes of this section,a fraction of a dollar that is equal to or greater than one half shall be takenas a dollar and a fraction that is less than one half shall be disregarded.
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