Employment Insurance (EI)

Decision

[1] The appeal is allowed. The Tribunal agrees with the Claimant.

[2] The Claimant’s Employment Insurance (EI) parental benefits application shows that she selected the standard benefits option.

[3] The Claimant argues that she made a mistake and actually wanted the extended benefits option. And, she has shown that she actually meant to choose the extended option.

Overview

[4] When you fill out your EI parental benefits application, you need to choose between two options: the “standard option” and the “extended option.”^{Footnote 1}

[5] The standard option pays benefits at the normal rate for up to 35 weeks. The extended option pays the same amount of benefits at a lower rate for up to 61 weeks. Overall, the amount of money stays the same. It is just stretched over a different number of weeks.

[6] Once you start receiving parental benefits, you can’t change options.^{Footnote 2}

[7] On her application, the Claimant chose standard parental benefits. She started receiving those benefits at the normal rate the week of October 25, 2020. But, she actually wanted extended parental benefits.

[8] The Claimant says that she always wanted to receive parental benefits for the whole period she was off work but chose the wrong option by mistake on the application.

[9] The Canada Employment Insurance Commission (Commission) says that the Claimant made her choice and that it is too late to change it because she has already started receiving benefits.

[10] The Claimant disagrees and says that she made a mistake. It is her first time applying for parental benefits. Her application shows that she would be returning to work in 18 months. She wanted to receive benefits for the entire period. Had she chosen extended benefits she would receive more benefits.

Issue

[11] Which type of parental benefits did the Claimant actually want when she made her choice on the application?

Analysis

[12] When you apply for EI parental benefits, you need to choose between the standard option and the extended option.^{Footnote 3} The law says that you can’t change options once the Commission starts paying parental benefits.^{Footnote 4}

[13] To decide which type of parental benefits the Claimant actually wanted when she made her choice on the application, I need to consider the evidence about that choice. In other words, the option the Claimant chose on her application matters, but it isn’t the only thing to consider. For example, the number of weeks of benefits the Claimant wanted to receive or how long the Claimant planned to be off work might be things to consider too.

[14] Many Tribunal decisions have shown that it is important to consider all the evidence about a claimant’s choice when they filled out their application.^{Footnote 5} I am not bound by these decisions. In other words, I don’t have to base my decision on them. But, I find them persuasive, and I am choosing to follow them.

What the Claimant meant to choose on the application

[15] The option that the Claimant meant to choose on the application when she actually filled it out is important. At that moment, did she mean to choose the standard or extended option?

[16] The law is clear that the option can’t be changed once you receive benefits. The Tribunal’s decisions on this issue respect this. The Tribunal isn’t changing the Claimant’s choice of benefits. It is deciding what option the Claimant meant to select on the form when she filled it out.

[17] The Claimant testified that in January 2020 she arranged to take 18 months of maternity leave from her employer beginning in July 2020. She planned to get benefits for that entire period. She experienced a complicated birth and some mental health issues following the birth. This was her first child, born on July 7, 2020, and she applied for maternity and parental benefits on July 22, 2020. She does not recall completing the application but said that she completed the application herself at home without any assistance. She cannot say why she chose the 35 weeks. She said that it was shocking for her to see 35 weeks on the form and that 35 weeks is not even a year.

[18] The Claimant said that she has a Supplemental Unemployment Benefit (SUB) with her employer. She was paid a top-up to her EI benefits for one year. She knew that the last six months of her leave would be financially hard with reduced benefits. She assumed that she would see a drop in her benefits after she received 35 weeks parental benefits. She said she saw the parental benefits ended by logging on to her Service Canada account. She thought that the system would “switch her to extended” once a year had passed since the date of her child’s birth. She expected that the switch would occur in a few days and when there was no switch she called Service Canada to see why.

[19] During her call to Service Canada the Claimant was told of her mistake. At that time, the Service Canada agent explained that standard parental benefits would have paid her $573 a week for 35 weeks totaling $20,055 and extended benefits would have paid her $344 a week for 61 weeks totaling $ 20,984 which is $929 more. The Claimant said that with no income at present she could use the $929 to help with her bills.

[20] The Claimant said this was her first time applying for maternity and EI benefits. She got her understanding of how the parental benefits worked, that is 35 weeks at a higher rate and then at a lower rate for the last six months of her leave, from her head.

The parties’ arguments

[21] The parties, that is the Claimant and the Commission, do not agree that the Claimant selected the extended parental benefits.

[22] The Commission says that what the Claimant chose on the application tells us which option she wanted. It argues that it is too late to change options now. The Commission says that the Claimant’s choice of standard parental benefits could not be changed once she was paid parental benefits. It does not doubt her sincerity and notes that she did specify in her application that her return-to-work date was January 3, 2020.

[23] The Claimant says that she recognizes the law. She says she made an honest mistake. She was shocked when she saw she selected the standard benefits. She planned to be off work for 18 months and thought she would receive benefits for the entire period. She thought that her benefits would be lower once 12 months passed.

So, which option did the Claimant mean to choose when she applied?

[24] I find that the Claimant has proven that she meant to choose extended parental benefits when she applied.

[25] This issue turns on what it means to make an election. Is it only the choice on the application form?

[26] I note that subsections 23(1.1) and 23(1.2) of the Employment Insurance Act have the effect of preventing claimants from switching back and forth between the standard and extended parental benefit options. I am not trying to interfere with those provisions.

[27] Recent decisions from the Tribunal’s Appeal Division confirm that I must consider all of the relevant evidence regarding what kind of parental benefits the Claimant likely elected to receive.^{Footnote 6} The decisions have found that claimants are able to argue that the Commission misinterpreted the choice they made before they started to receive parental benefits. Specifically, confusion can arise from contradictory answers that applicants provide on their application forms. In these cases, the Commission might consider acting early to clarify the intentions of claimants. When asked, Tribunal Members have the power to look at all the relevant circumstances and decide whether a claimant did, in fact, chose the standard or extended parental benefits option.^{Footnote 7}

[28] The Claimant applied for her benefits on July 22, 2020. Her last day worked was July 3, 2020. She indicated that she would be returning to work January 3, 2022. That is approximately 18 months of leave from her employer. She testified that she received a top up from her employer for 12 months. She testified that she thought she would get benefits for the entire 18 months but would receive a lower amount of benefits after one year. She received the same amount of weekly benefits from July 4, 2020 to June 26, 2021. It was not until she spoke to a Service Canada agent after her benefits stopped that she was aware that there were two different rates and two different durations for parental benefits.

[29] I note that the application for benefits contains inconsistent information. The application form asks “Will you be returning to work with this employer” the response was “yes” and the date of return entered was 03/01/2022. On a page labeled “Maternity Information” the actual date of birth was entered as 07/07/2020. The form asks if the Claimant wants to receive parental benefits immediately after maternity benefits. The Claimant indicated yes. In the next section, titled “Parental Information” the Claimant indicated that she wanted the standard option. Under the following section titled “Parental Information” the form asks how many weeks do you wish to claim? The Claimant chose 35 from the drop down menu. I find the selection of 35 weeks of parental leave, on an application completed on July 22, 2020, is not consistent with a return to work date of January 3, 2022.

[30] I note that in the section under the heading “Parental Information” there is no reference to maternity (pregnancy) benefits. The form states “Parental benefits are payable only to the biological, adoptive, or legally recognized parents while they are caring for their newborn or newly adopted child.” The Claimant’s personal circumstances are relevant to her understanding of what parental benefit option she was electing to receive. The Claimant testified that this was her first child. She applied for benefits after a difficult birth and while she was experiencing other health issues. She did not receive any assistance completing her application. The Claimant said she thought that she would receive benefits for the entire 18 months. She was receiving a top up from her employer for the first 12 months. She thought that her benefits would be less after the first 12 months but would be automatically switched over to the lower amount. The Claimant’s explanation of her understanding of the benefits she would receive were framed in terms of the amount of leave she requested from her employer and the top up that she would receive from her employer.

[31] The application for benefits asks what type of parental benefits and how may weeks of benefits a claimant wishes to claim. There is nothing in these questions to indicate that the parental benefits are in addition to the 15 weeks of maternity benefits. There is no question on the pages of the form, as provided by the Commission, asking how many weeks of maternity and parental benefits in total that the Claimant is requesting. Given the Claimant’s circumstances and the confusion created by the questions on the form, I find it credible that she made a mistake on the application.

[32] The evidence tells me that the Commission misinterpreted the choice the Claimant made before she started to receive parental benefits. Specifically, there was confusion in the contradictory answers the Claimant provided on her application form. The Claimant’s indication that she would be returning to work on January 3, 2022, contradicts her choice of 35 weeks of parental benefits. This evidence tells me that the Claimant was confused about the choice she was making. It was her intention from the outset to be off work for 18 months of leave and to make a claim for benefits for that 18-month period.

[33] The Claimant testified she expected that she would receive a lower benefit amount after one year. Her last benefit cheque was issued on July 2, 2021. She contacted the Commission on July 14, 2021, she said that she planned to be off work for 18 months and was certain she had chosen the extended option. This evidence tells me that the Claimant’s intention was to receive benefits for the 18 months she would be off work.

[34] I note that the EI Act says that applicants for parental benefits must make an election. However, the EI Act does not specify how, precisely, that election is to be made, nor does it tell the Commission what to do if an election is unclear.^{Footnote 8}

[35] In this case, the Claimant’s understanding of her selection, the confusion created by the questions and information on the application form, and the Claimant’s indication in the application form that she would return to work after 18 months of leave are all evidence the Claimant wanted extended EI parental benefits. The extended option is in line with the Claimant’s return to work plans, which she had discussed with her employer. As a result, I find that the Claimant did not want to claim standard EI parental benefits as the Commission says, but rather it is more likely than not that her choice was to receive extended EI parental benefits. Accordingly, I find that, on a balance of probabilities, the Claimant elected to receive her parental EI benefits according to the extended option.

Conclusion

[36] I find that, on a balance of probabilities, the Claimant chose extended parental benefits.

[37] This means that the appeal is allowed.