Employment Insurance (EI)

Decision

[1] While I find that the General Division based its decision on a misinterpretation of the law, I agree with the conclusion it reached. This means that the appeal is dismissed.

[2] The Claimant, D. N., is entitled to receive Employment Insurance (EI) standard parental benefits.

Overview

[3] The Claimant established a claim for EI maternity benefits, followed by parental benefits. On her application form, the Claimant had to make a choice (election) between two options for her parental benefits: the standard option and the extended option.

[4] The standard option offers a higher rate of parental benefits, paid for up to 35 weeks. The extended option offers a lower rate, paid for up to 61 weeks. When combined with 15 weeks of maternity benefits, the standard option provides EI benefits for about a year, and the extended option provides EI benefits for about 18 months.

[5] The Claimant wanted to take a year’s leave from work after the birth of her child, and she indicated as much on her application form.^{Footnote 1} She also wanted to claim EI benefits throughout this time.

[6] However, the Canada Employment Insurance Commission^{Footnote 2} (Commission) says that the Claimant applied for 59 weeks of EI benefits: 15 weeks of maternity benefits, followed by 44 weeks of extended parental benefits.

[7] After the Claimant’s maternity benefits ran out, the Commission paid her parental benefits at the lower, extended option rate. When the Claimant noticed the change in her bank account, she contacted the Commission, and it explained the situation to her.

[8] So, the Claimant asked to switch to the standard option. The Commission refused the Claimant’s request. The Commission said that it was too late for the Claimant to change options because it had already paid her some parental benefits.

[9] The Claimant appealed the Commission’s decision to the Tribunal’s General Division, and it allowed the appeal. The General Division found that the Claimant had selected the extended option on her application form but that she had made a mistake in her choice. The General Division then decided that it could correct this mistake and found that the Claimant had chosen the standard option because it better matched with her intentions of taking a year’s leave.

[10] The Commission is now appealing the General Division decision to the Tribunal’s Appeal Division. It argues that the General Division went beyond its powers, that its decision contains errors of law, and that it based its decision on an important mistake about the facts of the case.

[11] I find that the General Division based its decision on a misinterpretation of the law. So, I will give the decision that the General Division should have given.

[12] There are glaring contradictions on the Claimant’s application form concerning her choice between the standard and extended options. In the circumstances, I have to consider the evidence in more detail to determine the Claimant’s choice.

[13] Based on the evidence before me, I find that the Claimant chose the standard benefits option.

Issues

[14] Here are the issues I have to decide:

1. a) Can I consider new evidence?
2. b) Did the General Division base its decision on a misinterpretation of the law when it found that it could correct the mistake the Claimant had made on her application form?
3. c) If so, what is the best way to fix the General Division’s error?
4. d) What did the Claimant choose between the standard and extended options?

Analysis

I have not considered any new evidence

[15] New evidence is evidence that the General Division did not have in front of it when it made its decision.

[16] The Appeal Division’s limited role normally prevents me from considering new evidence.^{Footnote 3} The law says that I must focus on whether the General Division made any of the relevant errors listed in the law.^{Footnote 4} And that assessment is usually based on the materials that the General Division had in front of it. I cannot take a fresh look at the case and come to my own conclusions based on new evidence.

[17] There are exceptions to the general rule against considering new evidence.^{Footnote 5} For example, I can consider new evidence that provides general background information only or that describes how the General Division might have acted unfairly.

[18] Here, the Commission wove new evidence into its arguments.^{Footnote 6} This evidence is meant to give a fuller picture of information about maternity and parental benefits that the Claimant could have accessed on the Internet.

[19] This is not general background information. It is more about what the Claimant knew, or could have known. It also suggests that the Claimant was careless by not looking at this information.

[20] None of this information falls within an exception to the general rule against considering new evidence. In addition, the Commission could have easily given this information to the General Division but chose not do.

[21] For these reasons, I did not consider this new evidence.

The General Division based its decision on a misinterpretation of the law

[22] I can intervene in this case only if the General Division made a relevant error. In this decision, I mainly consider whether the General Division misinterpreted the law.^{Footnote 7}

[23] When applying for parental benefits, the Claimant had to choose between the standard and extended options.^{Footnote 8} She could not change options after receiving parental benefits from the Commission.^{Footnote 9}

[24] On her application for EI benefits, the Claimant ticked the box next to the extended option. And she selected 44 in response to the question “How many weeks do you wish to claim?” This answer is consistent with the extended option because the standard option offers no more than 35 weeks of benefits.

[25] The General Division found that the Claimant had made a mistake in her choice of option. It added:^{Footnote 10} [translation] “If their election on the application is not what they meant to choose at the time, the mistake may be corrected.”

[26] I cannot accept that interpretation of the law. The General Division decision suggests that an applicant’s choice is the one that best reflects their intentions, regardless of what they wrote on their application form. In its decision, the General Division seems to be referring to a broad discretion to correct any mistakes an applicant may make on their application form.

[27] On the contrary, the Federal Court recently taught us that remedies are not always available in situations like this one.^{Footnote 11} In addition, the Commission’s role is to interpret the information provided on an application form. It should not have to read the mind of each applicant.

[28] So, I find that the General Division based its decision on a misinterpretation of the law.

I will give the decision that the General Division should have given

[29] At the hearing before me, both parties argued that, if the General Division had made an error, then I should give the decision that the General Division should have given.^{Footnote 12}

[30] I agree. This means that I can decide whether the Claimant chose the standard option or the extended option.

The Claimant chose the standard option

[31] I use a two-step approach when deciding cases like this one:

1. a) What option did the applicant choose on the application form? The applicant’s choice must be clear.^{Footnote 13} If not, then the Tribunal can look at all the circumstances and decide which option the applicant is more likely to have chosen.
2. b) Was the applicant’s choice valid? In several cases, the Tribunal has found the applicant’s choice to be invalid because it was based on misleading information from the Commission.^{Footnote 14} In these cases, applicants need to make their choice again.

There are glaring contradictions on the Claimant’s application for benefits

[32] To begin with, did the Claimant communicate a clear choice to the Commission on her application form? No.

[33] On the contrary, the Claimant’s answers on her application for benefits contain glaring contradictions concerning her choice between the standard and extended options. For example, I point out the following answers:^{Footnote 15}

• Last day worked: October 2, 2020
• Expected return-to-work date: October 2, 2021
• Desired number of weeks of parental benefits: 44

[34] To determine the desired total number of weeks of EI benefits, 15 weeks of maternity benefits have to be added to the 44 weeks of parental benefits claimed. This means that the Claimant applied for 59 weeks of benefits, which is inconsistent with a year’s leave from work.

[35] The Commission’s representative acknowledged this ambiguity at the hearing before me.

[36] Given the ambiguity on the application form, I find that I have to consider the evidence in more detail to determine the Claimant’s choice between the standard and extended options.

The Claimant chose the standard option

[37] Based on the information before me, I find that the Claimant chose to receive her parental benefits under the standard option.

[38] The Claimant testified before the General Division that her goal had always been to take a year’s leave from work. That is what she indicated on her application form^{Footnote 16} and later reiterated.^{Footnote 17}

[39] The Claimant also explained to the General Division why she had claimed 44 weeks of parental benefits. In her mind, the question “How many weeks do you wish to claim?” involved the total number of weeks for which she would be claiming EI benefits. The question does not say that it is the number of weeks for which she would be claiming only parental benefits.

[40] The Claimant testified that she had chosen a number of weeks that was lower than 52 because she was also taking a few weeks’ leave from her employer.

[41] Lastly, the Applicant says that she did not expect the amount of her benefits to go down during her year off. For this reason, she quickly contacted the Commission after noticing this reduction.

[42] Since the plan was to take a year’s leave from work, the Applicant did not need the extended option. And, in her case, the extended option makes no financial sense either.

[43] Given the ambiguities on the Claimant’s application form, and after considering the evidence, I find that she is more likely to have chosen the standard option.

I do not accept the Commission’s arguments

[44] The Commission argues that the Claimant had to choose between the standard and extended options as part of her application for benefits and that neither the Commission nor the Tribunal can second guess her choice.

[45] Plus, the law prevents the Tribunal from changing the Claimant’s choice, whether directly or indirectly, after the Commission has started paying parental benefits to the Claimant.^{Footnote 18} Finally, the Commission emphasized its ability to decide how a claim for benefits is to be made and on what form.^{Footnote 19}

[46] In short, the Commission argues that the Claimant made her choice by ticking the box next to the extended option on her application form. Nothing else matters.

[47] I disagree with these arguments for the following reasons:

• Nowhere in the law does it say precisely how an applicant’s choice is to be made or that it must always be determined based on just one tick on an application form.
• The Commission interprets every application form to assess the applicant’s choice and determine the rate at which it should pay their benefits. The Commission makes these decisions, implicitly or explicitly, every time it pays benefits to an applicant.^{Footnote 20}
• Did the Claimant make a clear choice? Was it validly made? These are questions of law and fact that the Tribunal has the power to decide.^{Footnote 21}
• The Tribunal is not changing the Claimant’s choice after she started to receive benefits. Instead, it is assessing the choice that was made from the start. If the choice is not clear, the Tribunal can look at all the evidence and decide what the Claimant actually chose. The Tribunal is interpreting the Claimant’s choice. It is not making the choice for her.
• The Commission emphasizes how applications must be made using a form that it supplies or approves.^{Footnote 22} However, that same part of the law also says that applications must be completed in accordance with the Commission’s instructions. The Claimant did that. But the answers she gave do not reveal a clear choice.
• The fact that the Claimant had to choose between the standard and extended options as part of her application does not change the Tribunal’s ability to consider whether her choice was clear and validly made.

[48] The Commission also relies on a Federal Court decision: Karval.^{Footnote 23} However, the facts in this case are very different from those in Karval. Specifically, the judge in Karval highlighted the following points as important facts:^{Footnote 24}

• On her application form, Ms. Karval clearly chose the extended option.
• The evidence showed that, when completing her application form, Ms. Karval did not know when she would be returning to work and did not provide an expected return-to-work date.
• Ms. Karval received extended benefits in a reduced amount for six months before contacting the Commission to ask questions about her choice.

[49] In other words, Ms. Karval gave the Commission no indication she was confused. In this case, the Claimant’s application form contained glaring contradictions that should have led the Commission to ask for clarification.

Conclusion

[50] The General Division based its decision on a misinterpretation of the law. This error allows me to intervene in this case and to give the decision that the General Division should have given.

[51] Although I disagree with part of the General Division’s reasoning, I reached the same result as it did using a different approach.

[52] On the Claimant’s application form, there are glaring contradictions concerning her choice between the standard and extended options. Because of this, I have considered the evidence in more detail and decided that the Claimant chose the standard option.

[53] In the circumstances, I am dismissing the Commission’s appeal.