Citation: LV v Canada Employment Insurance Commission, 2020 SST 835
Tribunal File Number: GE-20-2231
BETWEEN:
L. V.
Appellant
and
Canada Employment Insurance Commission
Respondent
SOCIAL SECURITY TRIBUNAL DECISION
General Division – Employment Insurance Section
| DECISION BY: | Katherine Wallocha |
| HEARD ON: | November 24, 2020 |
| DATE OF DECISION: | November 27, 2020 |
On this page
Decision
[1] The appeal is allowed. The Claimant did not make an informed election for extended parental employment insurance (EI) benefits because she received the wrong advice from the Commission. This means her election to receive extended parental benefits is not valid.
Overview
[2] The Claimant applied for maternity and parental EI benefits. On her application she said she was returning to work but her return to work date was unknown. She also selected the option for extended parental benefits wishing to claim 41 weeks. When the Claimant’s parental benefits started, she thought that the rate of weekly benefits was too low.
[3] The Claimant contacted the Commission and requested that her claim be recalculated. She then requested an amendment to change the parental benefits option from extended to standard. The Commission refused to change the type of parental benefits selected because the Claimant had already received a parental benefit payment.
[4] The Claimant appealed the Commission’s decision. She says she spoke to two Service Canada agents who told her that the benefit rate would be prorated, so she felt that meant she would receive a higher payment at 41 weeks than she would if she requested the full 61 weeks. She is only asking for six extra weeks of parental benefits but this means she is losing out on thousands of dollars of benefits. She needs the Commission to take some ownership and see their mistake and to switch her to the standard parental leave.
What I must decide
[5] Did the Claimant elect to receive extended parental EI benefits?
Reasons for my decision
[6] When you apply for parental EI benefits, you must choose between two different kinds of parental benefitsFootnote 1:
- Extended parental benefits. The Commission pays up to 61 weeks of parental benefits at the rate of 33% of your weekly earnings;
- Standard parental benefits. The Commission pays up to 35 weeks of parental benefits at the rate of 55% of your weekly earnings.
[7] When you choose a type of benefits, the law calls this an “election”. Once you have received a parental benefit payment, you cannot change your electionFootnote 2.
Did the Claimant elect to receive extended parental EI benefits?
[8] No, I find on the balance of probabilitiesFootnote 3 that the Claimant elected standard parental benefits and not the extended parental benefits.
[9] The Commission argued that the Claimant was informed on the application for parental benefits of the difference between standard parental benefits and extended parental benefits. She elected to receive 41 weeks of extended parental benefits. The Claimant was also informed that the decision was irrevocable once parental benefits were paid. The first payment for parental benefits was issued on August 21, 2020. On August 26, 2020, the Claimant requested that the claim be changed to standard parental benefits. The Commission submitted that the Claimant’s election in this case became irrevocable as of August 21, 2020.
[10] A recent decision by the Appeal Division (AD) of the Social Security Tribunal explained that while Parliament made the election of standard or extended parental benefits irrevocable, it did not define “election”, or state that a claimant’s selection on the application form must be conclusively deemed to be his or her election. In the AD’s view, the purpose of making the election irrevocable is to prevent claimants from changing their minds as their circumstances change and they reassess which type of benefit would be most advantageous. Its purpose is not to punish claimants for provable slips or objectively reasonable misunderstandings at the time that they complete their applicationsFootnote 4.
[11] Another decision by the AD confirms that I must consider all of the evidence to decide which option the Claimant had, in fact, chosenFootnote 5.
[12] The Claimant does not disagree that she requested the extended parental benefits. She says she wanted to claim six more weeks than what is allowed under the standard parental benefits which is why she requested 41 weeks. The Claimant said that she was told by two Service Canada agents that she would receive the same overall amount of money if you take any time between the 12 to 18 months. She felt her benefit rate would be prorated and she would get higher benefit payments than someone who was asking for the full 61 weeks.
[13] The Claimant told me at the hearing that she called the Commission in January 2020, before she applied for EI benefits in April 2020. She said she works in the film industry and the show she was working on was getting ready to wrap in mid-April, but her baby was not due until late May 2020. She said she was informed that she could take any number of weeks between the 12 to 18-month period for extended parental benefits, and her EI benefit payment would be prorated. She decided that since she was applying for EI benefits six weeks early, she would take an extra six weeks of parental benefits to bring her to her child’s first birthday, and closer to when filming on shows would start again.
[14] When the Claimant received her first parental EI benefit payment, she sent an email to the Commission the same day asking for a call back. She received the call the next day. The Claimant told me that the Commission’s agent agreed with her that she was being paid less than what she was entitled to be paid. She was told that everyone receiving maximum EI benefits is owed $20,055 for parental leave and the full amount would be paid between the 12 to 18 months. To the Claimant, this confirmed the information she had received earlier.
[15] The Claimant told me that if she had known she would not be able to collect her full entitlement to EI benefits, she would have applied for standard parental benefits.
[16] I agree that at the time of the Claimant’s initial application, it was her intention to apply for the extended parental benefits option. However, she was misled or misinformed about the differences between standard and extended parental benefits. She was led to believe that she would be paid the same amount of money if she asked for only 41 weeks, it would just be a larger weekly benefit payment because she was not claiming the full 61 weeks.
[17] I believe the Claimant when she says that she spoke to the Commission and was told she would receive her full entitlement prorated to the number of weeks of parental benefits she requested. She was consistent with her statements to the Commission and sincere in her testimony. I have no reason to doubt the Claimant’s statements and testimony.
[18] The Claimant selected a benefit option that she did not mean to choose. She did so because she was given misinformation by the Commission. This means she was unable to make a deliberate and informed decision. As a result, I find the Claimant’s election of the extended parental benefits was invalid from the outset because the Commission provided incorrect advice. She acted on that advice and made a selection that was contrary to her needs and wishes.
Conclusion
[19] The appeal is allowed.
Heard on:
November 24, 2020
Method of proceeding:
Teleconference
Appearances:
L. V., Appellant