Employment Insurance (EI)

Decision

[1] The appeal is allowed. I find the Claimant elected to receive standard parental employment insurance benefits.

Overview

[2] The Claimant applied for maternity and parental employment insurance (EI) benefits. She selected to receive extended parental benefits because she believed she was choosing to receive one year of total benefits. In fact, extended parental benefits pay a lower rate of benefits for up to 61 weeks, in addition to 15 weeks of maternity benefits. The Claimant realized she made a mistake when she noticed the parental benefit payment was much lower than the maternity benefit payment.

[3] The Canada Employment Insurance Commission (Commission) says the Claimant’s choice of parental benefit term cannot be changed after the first payment of parental benefits was made. It submits she elected to receive extended benefits because she picked that option on the application form. The Claimant says she chose extended parental benefits on the form by mistake. The Claimant appeals the Commission’s decision to the Social Security Tribunal (Tribunal).

Issue

[4] What type of parental benefits did the Claimant elect to receive?

Analysis

[5] Parental benefits are intended to support parents while they take time off work to care for their newborn children.^{Footnote 1} Claimants must elect the maximum number of weeks, up to either 35 or 61, that they want to be paid parental benefits.^{Footnote 2} The election of the parental benefit term cannot be changed once parental benefits are paid.^{Footnote 3}

[6] For the following reasons, I find the Claimant elected to receive standard parental benefits.

[7] The Claimant applied for maternity and parental benefits on January 26, 2021. A claim was established as of January 3, 2021. She submitted that her last day worked was January 3, 2021, and she planned to return to work on January 3, 2022.

[8] Despite her intention to take only one year off work for maternity and parental leave, on the parental information section of the application form she selected to receive extended parental benefits. The form also asks how many weeks of benefits she wishes to claim. She picked 52 weeks from the drop-down menu.

[9] The Claimant testified that she thought she was choosing to receive 52 weeks of benefits in total when she selected to receive 52 weeks of parental benefits. She submitted that she read the application form but did not know she made a mistake until the parental benefits were paid.

[10] The evidence shows that the first payment of parental benefits was paid to the Claimant on May 7, 2021. At the hearing, she explained that she received EI cheques by mail, so she did not receive it for a few days. She testified that as soon as she received the cheque for the lower amount, she contacted the Commission. She added that the wait time to speak to someone was more than two hours, each time she called.

[11] The Commission’s file shows the Claimant called on May 18, 2021, to ask to change from extended to standard parental benefits. The Claimant testified that the Commission advised her that it was impossible to change the parental benefit choice because she had already received a payment of parental benefits. She requested reconsideration, stating she is only going to be off work for one year. She reiterated that she planned to return to work in January 2022. The Commission upheld its decision, determining the Claimant was not able to switch her parental benefit election from extended to standard. 

[12] At the hearing, the Claimant reiterated that her intention was always to take only one year off work, which is supported by her request for 52 weeks of parental leave on the application form. She stated she thought she was requesting a total amount, for maternity and parental leave, and did not realize she was requesting 52 weeks in addition to the maternity period.

[13] The Commission submits the Claimant was paid the first payment of parental benefits on May 7, 2021. The Claimant submits she received the payment a few days later, because it came via cheque in the mail. I find the Claimant was paid parental benefits on May 7, 2021, because there is no evidence to the contrary.  

[14] The Commission adds that the law is clear and unambiguous that once the choice of election is made and any parental benefits are paid, the election cannot be changed. Since the Claimant was paid parental benefits on May 7, 2021, it submits her election was irrevocable from that date.

[15] I agree with the Commission that the law is clear that once the choice of election is made and any parental benefits are paid, an election for parental benefits cannot be changed. I disagree, however, on its determination that selecting a certain option on an application form is the only relevant information in deciding which election the Claimant made.

[16] This issue turns on what it means to elect a benefit period. Is it only the choice on the application form? A decision from the Tribunal’s Appeal Division confirms that I must consider all of the relevant evidence regarding what kind of parental benefits the Claimant likely elected to receive.^{Footnote 4}

[17] I must also consider the recent case law from the Federal Court. In Karval,^{Footnote 5} the Court addressed the situation of a Claimant who appealed a similar but distinguishable situation to the Claimant’s case. Ms. Karval filed a claim for extended parental benefits, and sought to change to standard benefits. The Commission refused to change the benefit election. The Tribunal denied her appeal at both the General and Appeal divisions. In that case, the evidence about which kind of parental benefits the Claimant chose was ambiguous and Ms. Karval did not provide a return to work date on her application for EI benefits.

[18] Also, Ms. Karval chose to receive extended benefits for 61 weeks. The Tribunal member noted that there was no contradiction on the application form, because the Claimant said she did not know when she was returning to work, and also requested the maximum number of benefit weeks available. Ms. Karval also stated that she did not understand the difference between maternity and parental benefits and said she wanted the option that would give her one year of leave in total.

[19] The Claimant in the current case selected to receive only 52 weeks of extended parental benefits, not the maximum of 61 weeks. She also testified that she thought she understood the types of benefits, but must have made a mistake because she thought 52 weeks meant the length of time for both maternity and parental benefits. She added that she always intended to take only one year off work, which she reported on her application form. I find the choice of 52 weeks corresponds with one year, which distinguishes the Claimant’s situation from Ms. Karval’s.

[20] Additionally, in Karval, the Claimant’s benefit rate dropped from 55% of her weekly earnings to 33% of her weekly earnings in the week of September 1, 2019. She collected this lower parental benefit rate for nearly six months before contacting the Commission. The Claimant contacted the Commission immediately after receiving her first extended parental payment.

[21] The preceding compares the Karval situation to the Claimant’s case. The Court in Karval also made relevant comments that I want to address. It states that the questions on the EI application are not objectively confusing, and summarizes the parental benefits program.^{Footnote 6} It also reproduces the Parental Information section of the application in its decision, before noting that Ms. Karval chose the “extended option payable over 61 weeks [and] received benefits under that option for six (6) months before seeking to convert the claim to the standard option.”^{Footnote 7}

[22] The Court found that, “where a claimant…is not misled but merely lacks the knowledge necessary to accurately answer unambiguous questions, no legal remedies are available. Fundamentally it is the responsibility of a claimant to carefully read and attempt to understand their entitlement options and, if still in doubt, to ask the necessary questions.” The Court determined that Ms. Karval deliberately selected the extended option and failed to read the application clearly.

[23] The Court also comments that there is nothing “very confusing about the application” for parental benefits and stated that if it was “perplexing, she could have called the Commission instead of providing answers that, she now says, were inconsistent with her true intentions.”^{Footnote 8}

[24] I appreciate the Court’s comments, but find they apply differently in this case. I recognize the Court found the questions on the parental benefits section of the EI application form were not objectively confusing; however, the Court did not address the interplay between this section and the maternity benefits section. While it may be clear that there are two types of parental benefits, standard and extended, it is evidently not clear that when identifying the number of weeks of parental benefits one wishes to claim, maternity benefits are a separate period of time. On the application for EI benefits, it states:

*Do you want to receive parental benefits immediately after receiving maternity benefits?

• Yes, I want to receive parental benefits immediately after my maternity benefits.
• No, I only want to receive up to 15 weeks of maternity benefits.^{Footnote 9}

The application form does not specify that maternity benefits are a wholly separate type of benefit, and are not part of the parental benefit election.

[25] While the maternity section refers to 15 weeks of maternity benefits in the “No” option, I find it may not be obvious to a Claimant that this is independent from the parental benefits section. If a claimant chooses “yes” to the question above, they may not know that they are asking to receive up to 15 weeks of maternity benefits, because it does not state they will receive up to 15 weeks in addition to parental benefits.

[26] Further, while the question itself of “do you want to receive parental benefits immediately after receiving maternity benefits?” suggests there is some separation between benefit types, I find that this is not plain and obvious to the average person, who does not work with EI benefits on a daily basis. It may suggest a separation between benefits, but it is not clear in defining the difference such that a claimant will certainly be clear about what they have elected to receive.

[27] The Commission referenced this section of the application in its written submission, and added that, “there is no obligation for Service Canada to call claimants to verify the information they provide on their application. It is the claimant’s responsibility to accurately provide information in their application and to verify their information.” While I agree that there is no obligation for the Commission to confirm information presented by the Claimant on their application form, it cannot expect a Claimant to wait multiple hours on hold to confirm information that they do not know they are misunderstanding. The Claimant thought she understood the application form, so it is reasonable that she did not contact the Commission to ask questions before she applied for benefits.

[28] The Court in Karvalalso referred to the responsibility of a claimant to understand their entitlement options, and to ask questions if they do not understand. In this case, the Claimant testified that she thought she understood. She did not know that claiming 52 weeks of parental benefits was different from taking one year of leave. I find she could not have known her error prior to the first payment of benefits, because she did not have access to her application for benefits after it was submitted.

[29] Further, she did not understand parental and maternity were separate periods, so when she started receiving maternity benefits at the rate of 55%, she did not know to contact the Commission and ask questions, because she thought her claim was established correctly and she would continue receiving this amount of money. I find this is not a case of the Claimant lacking the knowledge to answer unambiguous questions, because the difference between maternity and parental benefits and the relationship between the two benefits is not unambiguous.

[30] There is no question that the Claimant’s situation differs from Karval. The Claimant requested only 52 weeks of extended benefits, not the maximum of 61, and contacted the Commission immediately upon receiving parental benefits to inquire about the lower benefit rate and ask for a change to standard benefits. In Karval, the Claimant received months of benefits before asking to change her claim. The Court found that if she had been confused, she could have called the Commission. In the current case, the Claimant did exactly that. She contacted the Commission immediately after receiving her first payment of parental benefits and recognizing it was significantly lower than she expected it to be.  For all of these reasons, I find the Claimant’s situation is distinguished from Karval.

[31] I find it is more likely than not that the Claimant intended to elect one year of maternity and parental leave combined, because her explanation at the hearing was credible and I accept her evidence that she arranged with her employer to take only one year off work prior to taking leave. The Claimant also reported her specific dates of leave on the application form, and the dates reflect one year of leave.

[32] I further find the Claimant thought she was claiming 52 weeks of combined maternity and parental benefits when she applied for EI benefits.

[33] I find the Claimant elected to receive standard benefits, because I prefer her evidence that when she made the choice of parental benefit terms, she believed she was selecting the entire length of her EI benefits to be 52 weeks. I make this finding because taking one year off work for maternity and parental leave is consistent with standard parental benefits, as the number of weeks of maternity and parental leave is equal to one year. It would not be logical to find that the Claimant intended to choose extended benefits if she only wanted to be off work for one year, because that choice would result in her not maximizing the benefits available to her and there is no evidence that she intended to act in a way that was contrary to her best interests.

[34] The law does not allow a claimant to change their election after they have been paid parental benefits.^{Footnote 10} However, as I find the Claimant did not elect extended parental benefits, there is nothing to revoke. Rather, the Claimant should be put back in a position consistent with her election of standard parental benefits.

Additional comments

[35] While each case is independent and decided on its own merits—and this case is no different in that regard—I must add that I have personally dealt with more than 25 cases of this exact nature in 2021, which says nothing of how many other Tribunal members have addressed the same issue. If the application for maternity and parental EI benefits were clear and unambiguous, there would not be so many files with similar fact scenarios.

[36] I noted above that the Commission submitted, “there is no obligation for Service Canada to call claimants to verify the information they provide on their application. It is the claimant’s responsibility to accurately provide information in their application and to verify their information.” This is correct; however, in cases where a Claimant specifies the dates when they plan to take one year of leave from work and also request extended benefits, which by definition will result in less favourable benefit payments, it would perhaps be prudent to establish a process to contact those claimants and confirm their election prior to paying parental benefits. Another option would be to send a benefit statement to all claimants applying for parental benefits, prior to the payment of those benefits, showing the dates and amounts of the payments they will receive so they have the opportunity to understand any error prior to being paid parental benefits.

[37] While I cannot direct the Commission to take any particular action, I encourage it to review the body of similar cases and consider options to clarify this recurring situation.

Conclusion

[38] The appeal is allowed. I find the Claimant elected to be paid standard parental benefits.