Employment Insurance (EI)
Decision Information
Employment Insurance – Qualifying hours increased due to COVID-related amendments to law – Claimant
The Claimant’s employer, a retailer, laid her off in March 2020 due to COVID-19. She applied for employment insurance (EI) regular benefits in March 2020; the government granted her the Canada Emergency Response Benefit (CERB). She worked a few hours, part-time from June 2020. Changes to the law about the CERB automatically changed her claim to become an EI claim for regular benefits. The change made her new EI claim for regular benefits start on September 27, 2020.
Part of the change to the law that switched CERB claimants to regular EI benefits also gave claimants a “credit” of 300 or 480 extra hours in their qualifying period, depending on the type of benefit they applied for. The goal of the “credit” was to make up for the effects of the COVID-19 lockdowns because provinces forced many businesses to close. The lockdowns would make it difficult for some claimants to work the hours they needed to qualify for EI benefits, so the credit of qualifying hours was means to help.
In June 2021, the Claimant applied for EI maternity and parental benefits. Her qualifying period for maternity and parental benefits started in September 2021 and resulted in her getting only 14 weeks of maternity benefits. The Claimant wanted to apply the “credit” of 300 or 480 hours to her claim for maternity and parental benefits. The Commission refused.
The Claimant appealed the Commission’s decision to the General Division (GD). The GD granted the Claimant’s appeal. It interpreted the law, section 153.17 of the Employment Insurance Act (EI Act) – the version effective September 27, 2020 – and concluded she could benefit from the 300 hours’ credit.
The Commission appealed the GD decision to the Appeal Division (AD). The Claimant and the Commission agreed about the appeal. They also agreed the Commission’s estimate of how much the Claimant had worked in 2020 and 2021 was wrong; she had worked enough hours to get the additional maternity and paternity benefits she originally wanted – she did not need the credit of 300 or 480 hours. The parties agreed the Claimant could apply, from September 26, 2021, for the balance of the parental and maternity benefits she wanted. The AD found the GD made a mistake when it interpreted section 153.17 of the EI Act. The law required the GD to apply the credit to the September 27, 2020 claim. A claimant could not “carry over” or use the credit unless the claim did not establish a benefit period. The AD allowed the Commission’s appeal.
Decision Content
Citation: Canada Employment Insurance Commission v NK, 2021 SST 601
Social Security Tribunal of Canada
Appeal Division
Decision
| Applicant: | Canada Employment Insurance Commission |
| Representative: | Anick Dumoulin |
| Respondent: | N. K. |
| Decision under appeal: | General Division decision dated August 19, 2021 (GE-21-1260) |
| Tribunal member: | Shirley Netten |
| Decision date: | October 18, 2021 |
| File number: | AD-21-286 |
On this page
Decision
[1] Leave (permission) to appeal is granted and the Commission’s appeal is allowed.
Overview
[2] As a temporary measure, the Employment Insurance Act (EIA) was amended to provide a one-time increase in insurable hours. The Commission applied that increase to N. K.’s (the Claimant’s) claim for regular employment insurance (EI) benefits effective September 27, 2020 (the 2020 claim). While on this claim, the Claimant began a maternity leave in June 2021. She could only receive 14 weeks of maternity benefits because her existing benefit period ended in September 2021. The Claimant wanted the extra insurable hours to apply to a new claim for maternity and parental benefits instead (the 2021 claim), but the Commission refused.
[3] On appeal, the General Division decided that the extra hours should not have been applied to the 2020 claim, and so they were available for the 2021 claim. The Commission requested permission to appeal to the Appeal Division.
[4] On consent of the parties, I have found that the General Division made an error of law. I have replaced the General Division decision with a decision that the extra hours had to be applied to the 2020 claim. However, the Claimant had in fact worked enough hours between the 2020 and 2021 claims to qualify for the balance of her maternity and parental benefits in September 2021.Footnote 1 She will receive her full maternity and parental benefits so long as she claims the balance of these benefits, effective September 26, 2021.
There is agreement on the outcome of the appeal
[5] Section 153.17 of the EIAFootnote 2 says:
153.17 (1) A claimant who makes an initial claim for benefits under Part I on or after September 27, 2020 or in relation to an interruption of earnings that occurs on or after that date is deemed to have in their qualifying period
- (a) if the initial claim is in respect of benefits referred to in any of sections 21 to 23.3, an additional 480 hours of insurable employment; and
- (b) in any other case, an additional 300 hours of insurable employment.
(2) Subsection (1) does not apply to a claimant who has already had the number of insurable hours in their qualifying period increased under that subsection or under this section as it read on September 26, 2020, if a benefit period was established in relation to that qualifying period.
[Emphasis added.]
[6] The Commission submits, and the Claimant agrees, that this means that the extra hours must be applied to the first claim that is made on or after September 27, 2020. The extra hours cannot be applied to a subsequent claim unless no benefit period was established.
[7] I agree with this interpretation. The General Division was wrong when it said that section 153.17 is ambiguous. The language of “deeming” removes any discretion on the part of the Commission. The Claimant was deemed to have an additional 300 insurable hours in the qualifying period for her 2020 claim, and consequently she could not have any extra hours added to the qualifying period for a subsequent claim.
Conclusion
[8] Permission to appeal is granted, and the appeal is allowed.