Employment Insurance (EI)

Decision and Reasons

Decision

[1] The appeal is dismissed.

Overview

[2] Since December 2017, applicants for Employment Insurance (EI) parental benefits must choose (or “elect”) the maximum number of weeks during which benefits can be paid.^{Footnote 1} The standard option provides up to 35 weeks of benefits at a maximum weekly rate of about $560. The extended option provides up to 61 weeks of benefits at a maximum weekly rate of about $335.

[3] T. B. is the Claimant in this case. Her application form shows that she selected the extended option. However, it also shows that she wanted to receive 35 weeks of benefits and that her spouse would take none, which is in line with the standard option. Without trying to resolve this contradiction, the Canada Employment Insurance Commission paid parental benefits to the Claimant at the lower (extended option) rate.

[4] The Claimant denied choosing the extended option. If she did select that option, then it was by mistake. In fact, the Claimant became aware of the issue only once she started receiving her parental benefits. By that time, however, the Commission said that the Employment Insurance Act (EI Act) prevented the Claimant from changing options. The Claimant asked the Commission to reconsider its decision, but it denied having any discretion in this type of case.

[5] The Claimant appealed the Commission’s decision to the Tribunal’s General Division. The General Division found that the answers on the Claimant’s application form revealed a glaring conflict. As a result, the General Division looked at all the circumstances of her case and concluded that the Claimant had, in fact, chosen the standard parental benefits option.

[6] While sympathetic, the Commission argues that the Claimant chose to receive 35 weeks of benefits payable at the lower rate, and that the General Division made important errors of fact and law by concluding otherwise.

[7] I am not convinced that the General Division made any of the errors that the Commission alleges. As a result, I am dismissing the appeal. These are the reasons for my decision.

Issues

[8] In reaching this decision, I asked and answered the following questions:

1. Did the General Division make an error of fact when it concluded that the Claimant had elected to receive standard parental benefits?
2. Did the General Division make an error of law when it concluded that the Claimant had elected to receive standard parental benefits?

Analysis

[9] I can intervene in this case only if the General Division committed at least one of the three possible errors described in the Department of Employment and Social Development Act (DESD Act).^{Footnote 2}

[10] In this case, I focused on whether the General Division committed an error of law or of fact. Based on the wording of the DESD Act, any error of law could justify my intervention in this case.^{Footnote 3}

[11] However, not all factual errors are capable of justifying my intervention in this case.^{Footnote 4} For me to intervene based on this type of error, the General Division must have made a finding of fact that is perverse, capricious, or that ignores the evidence that it had in front of it.

[12] This means that I cannot intervene because the General Division made an error concerning some irrelevant detail. However, I can intervene in a case if, for example, the General Division based its decision on a factual finding that is clearly contradicted by the evidence or has no evidence to support it.^{Footnote 5}

Issue 1: Did the General Division make an error of fact when it concluded that the Claimant had elected to receive standard parental benefits?

[13] No, the General Division did not make an error of fact in this case.

[14] EI parental benefits provide financial assistance to parents who are away from work to care for their newborn or newly adopted child. This program has undergone a number of changes over the last few years, including the ability of parents to choose between the standard and extended parental benefits options.

[15] An applicant’s choice is important because parents can share parental benefits, and the choice of the first parent applies to the second.^{Footnote 6} In addition, once the Commission starts paying parental benefits to either parent, then the parents cannot change from one option to the other.^{Footnote 7}

[16] In this case, the Claimant applied for maternity and parental benefits at the same time.^{Footnote 8} The Claimant has repeatedly said that she applied for the standard parental benefits option.^{Footnote 9} She always intended to take a year’s leave.^{Footnote 10} She completed her application at a Service Canada centre and asked for the help of local agents to ensure that her application was in order and reflected her intentions.^{Footnote 11}

[17] As a result, the General Division had to decide which option the Claimant had, in fact, chosen.

[18] The Commission maintains that the Claimant chose the extended option. The Commission also argues that, by finding otherwise, the General Division based its decision on an erroneous finding of fact that it made perversely, capriciously, or without regard for the evidence. In support of its position, the Commission relies on the Claimant’s answer to the following question on her application form:^{Footnote 12}

As of December 3, 2017, two options are available for parental benefits, standard and extended.

• Standard option - up to 35 weeks of benefits at a benefit rate of 55% of your weekly insurable earnings up to a maximum amount
• Extended option - up to 61 weeks of benefits at a benefit rate of 33% of your weekly insurable earnings up to a maximum amount

If parental benefits are being shared by two parents, the parental benefit option selected by the parent who first makes a claim is binding on the other parent.

To avoid an incorrect amount of benefits being paid, ensure you choose the same option as the other parent.

Once parental benefits have been paid on the claim, the choice between standard and extended parental benefits is irrevocable.

Select the type of parental benefits you are applying for:

• Standard option – up to 35 weeks of benefits at a benefit rate of 55% of your weekly insurable earnings up to a maximum amount
• Extended option – up to 61 weeks of benefits at a benefit rate of 33% of your weekly insurable earnings up to a maximum amount

[19] The Commission emphasized that the EI program operates on the principle of self‑declaration and that applicants are responsible for the answers that they provide.^{Footnote 13}

[20] In contrast, the Claimant pointed the General Division to the answers that she provided in response to the next two questions:^{Footnote 14}

Parental benefits are payable only to the biological, adoptive, or legally recognized parents while they are caring for their newborn or newly adopted child, up to a maximum combined total of 61 weeks.

Consequently, the 61 weeks can be paid to one parent, or shared between both parents.

How many weeks do you wish to claim?

35

How many weeks does the child’s other parent wish to claim?

0 

[21] The General Division described these answers as being in “glaring conflict” with the previous one because 35 weeks of benefits does, in effect, correspond to the standard option. The General Division also highlighted the significant consequences of this choice and how the Commission’s online form did nothing to warn the Claimant of these contradictory answers.^{Footnote 15} Similarly, the Commission never called the Claimant to clarify her choice.

[22] Given this “glaring conflict” on the Claimant’s application form, the General Division considered all of the relevant evidence to determine what option the Claimant had, in fact, chosen.

[23] The General Division considered the Claimant’s oral evidence. In particular, the Claimant said that she had always planned to return to work 52 weeks after the birth of her child. On her application for EI benefits, however, she did not write a precise return-to-work date.

[24] On this issue, the General Division accepted the Claimant’s explanation that her return-to-work date depended on the date that her employer recorded as the last day for which she was paid. Since the Claimant did not know that date at the time she completed her application for EI benefits, she indicated that her return-to-work date was unknown.^{Footnote 16}

[25] In her testimony, the Claimant also said that she made clear to the Commission’s agents that she wanted to receive 52 weeks of benefits in total. She did this both at the Service Canada centre where she completed her application and over the phone, when a Service Canada agent called to clarify her employer’s corporate name.^{Footnote 17}

[26] The General Division also considered the Claimant’s actions after discovering the change in her weekly benefit rate.^{Footnote 18} More specifically, she contacted the Commission soon after noticing the issue and asked that it be fixed.

[27] Overall, therefore, the General Division concluded the following at paragraph 18 of its decision:

Based on the Claimant’s testimony as to her intention to return to work a year following her daughter’s birth, her choice of receiving parental benefits for only 35 weeks, her having her application checked by Commission personnel at Service Canada, and her contacting the Commission as soon as she noticed the error, I find that the Claimant did not elect to receive extended parental benefits. I find that the Claimant meant to, and thus did elect, to receive standard parental benefits. The Claimant’s error in selecting extended parental benefits was simply that, an error. An error is not an election considering the importance of the decision being made.

[28] The parties in this case agree that, after the Commission started paying parental benefits to the Claimant, she could no longer change from one option to the other. However, there remains a question as to what option the Claimant chose in the first place, and whether the Commission might have misinterpreted that choice. In my view, this is a finding of fact that the General Division was entitled, and indeed obliged, to make.

[29] Importantly, the Tribunal has the power to take a fresh look at the facts of a case and to determine the appropriate outcome. In particular, the EI Act allowed the Claimant to ask that the Commission reconsider its decision and to appeal the Commission’s reconsideration decision to the Tribunal.^{Footnote 19} In turn, the General Division could make any relevant findings of fact needed to decide the case.^{Footnote 20} Parliament could have tried to prevent the Tribunal from interfering in this type of case, but it chose not to do so.^{Footnote 21}

[30] I note that there are other cases in which the Tribunal considered all of the relevant evidence and then decided whether the applicant had, in fact, chosen the standard or extended parental benefits option. In MC v Canada Employment Insurance Commission,^{Footnote 22} MC applied for parental benefits over the phone. The applicant told one of the Commission’s agents that she wanted “the long-term benefit” and that she wanted her child to be more than a year old before he went to daycare. In other words, MC wanted the extended option.

[31] Nevertheless, the Commission’s agent recorded MC as having chosen the standard option. In support of its case, the Commission relied on the notes of two telephone conversations in which agents recorded MC as having said that she was claiming 30 weeks of parental benefits.

[32] Given this contradiction, the General Division looked at all the circumstances of the case, weighed the contradictory evidence, and found that MC had, in fact, chosen the extended option. In other words, the General Division took a similar approach in this case as it did in MC, but the Commission has not appealed the decision in MC.

[33] As an aside, it is also worth noting that the Commission seems to have taken contradictory positions in these two cases. In MC, for example, the Commission argued that the applicant’s choice between the standard and extended options was made clear based on MC having claimed 30 weeks of benefits. Similarly, the Claimant in this case argues that she obviously wanted the standard option because she was claiming 35 weeks of benefits. The Commission, however, is now arguing that the number of weeks of benefits an applicant is claiming is irrelevant to the choice between the standard and extended options.

[34] Importantly, I note that the EI Act says that applicants for parental benefits must make an election. However, the EI Act does not specify how, precisely, that election is to be made, nor does it tell the Commission what to do if an election is unclear.^{Footnote 23}

[35] To that end, the Commission has undoubtedly made efforts to try to ensure that its application form is straightforward. However, a number of questions on the Commission’s mandatory application form potentially shed light on an applicant’s choice between the standard and extended options. In this case, for example, the Claimant noted that she wanted to receive 35 weeks of benefits and that her spouse would receive none.

[36] The Commission maintains that the Claimant, whether by mistake or otherwise, made an illogical choice, but that her choice became irrevocable. Yet the answers on the Claimant’s application form cast doubt on her choice. To borrow the words of the General Division member, the Claimant’s application form contained a glaring contradiction.

[37] In my view, nothing prevented the General Division from looking at the entire application form in this case and concluding that it did not reveal a clear choice. As a result, the General Division assessed the conflicting evidence, made a finding, and explained its decision. In my view, the General Division was entitled—indeed obliged—to do just that.

[38] Significantly, this is not a case where the Claimant’s bald assertion was the only evidence in support of a choice that, in retrospect, she found to be more advantageous. In addition to the information on the Claimant’s application form, there was also evidence that the Claimant made her choice known to the Commission’s agents at a Service Canada centre and over the phone. The standard option is also in line with the Claimant’s return-to-work plans, which she had discussed with her employer.

[39] As a result, I cannot characterize the General Division’s finding as perverse, capricious, or made without regard for the evidence.^{Footnote 24} There is evidence supporting the General Division’s finding. Of course, there was evidence to support the opposite conclusion too. But the General Division acknowledged the contradictory evidence and explained how it arrived at its conclusion. These are the hallmarks of good fact finding.

[40] In short, there is no error of fact justifying my intervention in this case.

Issue 2: Did the General Division make an error of law when it concluded that the Claimant had elected to receive standard parental benefits?

[41] No, the General Division did not make an error of law in this case.

[42] In its written submissions, the Commission argued that the Tribunal cannot rewrite the EI Act or interpret it in a manner that is contrary to its plain meaning.^{Footnote 25} I agree, but the General Division did neither of those things. As mentioned above, the General Division had the power to decide which parental benefits option the Claimant had, in fact, chosen.

[43] The Commission also argued that the General Division made an error of law by basing its decision on the Claimant’s intentions. The Commission’s argument is not well expressed in its written submissions. At the hearing before me, however, the Commission seemed to submit that, when sections 23(1.1) and 23(1.2) of the EI Act are properly interpreted, it becomes obvious that the Claimant’s intentions should not have been considered in this case.

[44] It is true that the General Division decision refers to the Claimant’s intentions. After all, the Claimant’s election would ideally be an expression of her intentions. When the General Division decision is read in its entirety, however, it is clear that the General Division did not base its decision on just the Claimant’s intentions, or on the Claimant’s declarations of what her intentions once were.

[45] Instead, the General Division started by looking at what the Claimant’s application form revealed to the Commission regarding her choice. The General Division then considered all the relevant circumstances in the Claimant’s case, including other outward expressions confirming the nature of her intentions. Finally, the General Division concluded that the Claimant had successfully proven, on a balance of probabilities, that she had chosen the standard parental benefits option.

[46] This finding is sound (even if I do not agree with everything that the General Division wrote in its decision). In my view, it is also a sufficient reason to dismiss the appeal.

[47] I have concluded, therefore, that the General Division did not commit the errors of law that the Commission alleges.

Conclusion

[48] Overall, there are no grounds allowing me to intervene in this case. As a result, I am dismissing the appeal.

[49] Beyond this, I would simply note that Parliament added the relevant provisions of the EI Act to give more flexibility to parents who are caring for their newborn or newly adopted child. I doubt that Parliament foresaw that these changes might result in parents receiving fewer benefits based on something as simple as a wrong click on an application form.

[50] In the circumstances, I can only encourage the Commission to try to improve its procedures, to ensure that parents fully understand the options available to them, and to make efforts at quickly resolving any contradictory answers that applicants might nevertheless provide. Alternatively, Parliament might consider amending the EI Act to try to avoid the difficulties that arose in this case.

Relevant legal provisions

Department of Employment and Social Development Act

Grounds of appeal

58 (1) The only grounds of appeal are that

1. (a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. (b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. (c) the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

Employment Insurance Act

Parental benefits

23 (1) Notwithstanding section 18, but subject to this section, benefits are payable to a major attachment claimant to care for one or more new-born children of the claimant or one or more children placed with the claimant for the purpose of adoption under the laws governing adoption in the province in which the claimant resides.

Election by claimant

(1.1) In a claim for benefits made under this section, a claimant shall elect the maximum number of weeks referred to in either subparagraph 12(3)(b)(i) or (ii) for which benefits may be paid.

Irrevocability of election

(1.2) The election is irrevocable once benefits are paid under this section or under section 152.05 in respect of the same child or children.

Employment Insurance Regulations

77.96 (8) A decision of the Commission in respect of any matter related to an election, including the failure to make an election, is

1. (a) until March 31, 2013, not subject to appeal under section 114 of the Act; and
2. (b) on or after April 1, 2013, not subject to reconsideration under section 112 of the Act.

• • •

77.98 (9) A decision of the Commission in respect of any matter related to an election, including the failure to make an election, is not subject to reconsideration under section 112 of the Act.

• • •

77.991 (7) A decision of the Commission in respect of any matter related to an election, including the failure to make an election, is not subject to reconsideration under section 112 of the Act.