Employment Insurance (EI)

Decision

[1] I am dismissing the appeal. The Claimant chose to receive extended parental benefits and she is unable to change to standard parental benefits.

Overview

[2] The Claimant applied for sickness benefits before her child was born. She applied for maternity and parental benefits at the same time. She chose on her application to receive extended parental benefits. Extended parental benefits is paid at a lower weekly benefit rate over a longer period of time.

[3] After the COVID-19 pandemic started, the Claimant’s spouse could not find work. She tried to contact the Canada Employment Insurance Commission (the Commission) to ask about changing her parental benefits to the standard option. She wanted to return to work early because of her spouse’s continued unemployment.

[4] The Claimant could not get an answer from the Commission about changing her benefits, so when it came time to re-apply for parental benefits, she chose the extended option again. She kept trying to call the Commission. When she finally spoke to someone who could help her, they said it was too late for her to switch to the standard option because she had already started to receive parental benefits. The Claimant is appealing this decision to the Social Security Tribunal (the Tribunal).

History of the appeal

[5] The Claimant appealed the Commission’s decision to the General Division (GD) of the Tribunal on August 10, 2020. The Claimant does not speak English. She did not know that the Tribunal provides interpretation services, so did not request an interpreter beforehand. At the hearing, the Claimant’s spouse appeared as her representative and offered to interpret between the Claimant and the GD Member. The GD Member allowed this and then dismissed the Claimant’s appeal on August 20, 2020.

[6] The Claimant appealed the GD’s decision to the Tribunal’s Appeal Division (AD), because she felt the Member had misunderstood some of the Claimant’s statements. The AD found the GD did not provide a fair hearing because the Claimant and the GD Member were not able to communicate effectively without a professional and impartial interpreter. The AD Member returned the Claimant’s appeal to the GD for a new hearing. This decision arises from that new hearing

[7] The Tribunal provided a Cantonese-speaking interpreter at the hearing on November 12, 2020. Near the beginning of the hearing, the interpreter stated that she had some issues understanding the Claimant. She asked the Claimant for clarification on some of her statements at different times. At one point, the Claimant stated that the interpreter had misinterpreted one of her answers. The Claimant answered the question again and agreed that the interpreter had correctly interpreted her statement. At the end of the hearing, I asked the Claimant and her spouse if they believed there were any other instances where the interpreter did not accurately interpret her statements. They both confirmed that there were no other instances of misinterpretation.

What I must decide

[8] I have to decide if the Claimant can receive standard parental benefits. To do this, I must see which parental benefit term she chose to receive. If she chose extended parental benefits, then I have to see if she can change that choice to standard parental benefits.

Reasons for my decision

[9] Parental benefits are intended to support you while you take time off work to care for your newborn child.^{Footnote 1} You must choose (or elect) the maximum number of weeks, either 35 or 61, that you can be paid parental benefits.^{Footnote 2} Your choice of the parental benefit term cannot be changed once parental benefits are paid.^{Footnote 3}

[10] I must look at all of the evidence when I decide which kind of parental benefits you likely elected to receive.^{Footnote 4}

Did the Claimant elect a type of parental benefits and, if so, which type did she select?

[11] I find the evidence supports the Claimant elected to receive extended parental benefits.

[12] The Claimant stated that she applied for sickness benefits in November 2019. At the same time, she applied for maternity and parental benefits. She selected the extended option for parental benefits and asked for 61 weeks of parental benefits. She said at the hearing that she initially intended to take a longer period of leave from work. Her spouse was unemployed at the time but she thought he would be back to work soon. Unfortunately, their circumstances changed when the spouse’s unemployment continued due to the impact of the COVID-19 pandemic.

[13] The Claimant testified that she started calling the Commission in May 2020, to ask about changing her parental benefit term to the standard option. She thought she would have to return to work earlier than planned, as her spouse was still unemployed. She also knew that her employer was opening a new store close to her home. She said the Commission had told her to re-apply for parental benefits in June and she wanted to know if she could change her parental benefit option at that time.

[14] The Claimant and her spouse tried numerous times to contact the Commission by telephone, but they were unable to get through to an agent. Many times, the phone line simply disconnected them. So, on June 2, 2020, the Claimant and her spouse submitted another application for parental benefits.^{Footnote 5} She chose the extended option again, and selected that she wanted to claim 61 weeks of parental benefits. She testified that she chose those options because she did not know whether she could change the parental benefit option she had selected on her first application.

[15] The Claimant and her spouse kept trying to contact the Commission. The Claimant testified that her spouse spoke to the Commission on June 15, 2020. He asked the Commission agent if the Claimant was able to change her parental benefit type to the standard option. The agent could not answer his question, and said that she was not sure whether the parental benefit type could be changed. The Claimant said her spouse did not ask for the parental benefit to be changed at that time because the agent could not tell them whether changing their parental benefit type was possible.

[16] I asked the Commission to provide its record of this conversation. It responded that there were no conversations from the Claimant or her spouse documented to her file from June 1, 2020 until July 6, 2020. It also stated, “all requests to change the parental benefit type are documented to the file.”

[17] I find it is most likely that the Claimant’s spouse spoke to the Commission on June 15, 2020. The Commission’s submissions do not contradict the Claimant’s version of events. The fact that the Commission did not document the June 15^th phone call to the Claimant’s file does not mean that the call did not occur. The Commission notes that all requests to change the Claimant’s parental benefit type are documented. The Claimant testified that her spouse did not request a change to the parental benefit type during this phone call. So, the Commission’s note that all requests to change the parental benefit type are documented to the Claimant’s file does not infer that the Claimant’s phone call would be documented.

[18] The Claimant knew that her employer was opening at new store close to her home. She knew there would be an opening at this branch, which was another reason she wanted to return to work early. On July 3, 2020, the employer contacted her to offer her a position in the store.

[19] On July 6, 2020, the Claimant and her spouse contacted the Commission again. They requested the Claimant’s parental benefit be changed from extended to standard. The Commission agent said that her parental benefit type could not be changed because she had made the request too late. She said the first payment of parental benefits had already been paid, so the Claimant could no longer change her parental benefit term.

[20] The Commission provided a payment history, which shows the Claimant was issued her first payment of extended parental benefits on June 19, 2020. The Claimant says that she received this payment on June 21, 2020.

[21] The Commission submits the Claimant elected to receive extended parental benefits when she selected the extended option on her application form. The Claimant requested her benefits be changed to standard parental benefits on July 6, 2020, but the Commission says the Claimant’s election became irrevocable, or unable to be changed, once the first payment of parental benefits was made on June 19, 2020.

[22] I find the evidence supports that the Claimant chose to receive extended parental benefits. It is undisputed that she selected this option on both of her applications for parental benefits. Although the Claimant started thinking about going back to work early in May, I find her spouse’s phone call on June 15, 2020, indicates the Claimant was still undecided about changing her parental benefit type at that time.

[23] I recognize that the Claimant had tremendous difficulty contacting the Commission to get help with her claim. She and her spouse called the Commission numerous times before she was able to speak to an agent who could answer their questions. While the Claimant may have been uncertain about whether she could change her parental benefit type, this does not invalidate that she made an election for extended parental benefits when she selected that option on her application forms.

Can the Claimant change her parental benefit election from extended to standard?

[24] The Claimant says that she received her first payment of extended parental benefits on June 21, 2020. On that date, her choice of extended parental benefits became unable to be changed. She requested her parental benefit term be changed to standard parental benefits on July 6, 2020. In other words, she requested the change to her parental benefit term after she had received her first payment of parental benefits. For this reason, I find she cannot change her election from extended to standard parental benefits.

[25] I acknowledge the Claimant’s argument that her circumstances have changed significantly since she first chose to receive extended parental benefits. She is experiencing financial difficulty due to the unexpected impact of COVID-19 on spouse’s employment. I understand the Claimant’s reasons for wanting to change her parental benefit term so she can return to work early and improve her family’s financial situation. But the way the legislation is written does not permit me to cast aside the Claimant’s choice of extended parental benefits unless she requested the change before she was paid parental benefits. The law says that you must elect the maximum number of weeks for which parental benefits may be paid^{Footnote 6} and that your election cannot be changed once parental benefits are paid.^{Footnote 7}

[26] Regrettably, I have no discretion to allow the Claimant to change her parental benefit term. The law does not allow the Claimant to change her election and I am bound to apply the law as written, no matter how compassionate the circumstances.^{Footnote 8}

Conclusion

[27] The appeal is dismissed.