Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

[2] The Appellant isn’t eligible to receive the Employment Insurance Emergency Response Benefit (ERB) from August 3, 2020, to August 28, 2020, and from August 31, 2020, to September 25, 2020, in accordance with section 153.9(4) of the Employment Insurance Act (Act).

Overview

[3] The Appellant stopped working for reasons related to the COVID-19 pandemic.

[4] On July 10, 2020, he applied for benefits. The Canada Employment Insurance Commission (Commission) established a benefit period for the ERB effective May 31, 2020. A renewal claim for benefits was also established effective August 2, 2020.

[5] On June 10, 2021, the Commission issued a reconsideration decision saying that it wasn’t able to pay the Appellant the ERB between August 3, 2020, and August 28, 2020, and between August 31, 2020, and September 25, 2020, because the Appellant had received income from employment of more than $1,000 per month in each of those periods.

[6] The Appellant admits that he received an emergency wage subsidy of $1,008 in each of the two four-week periods. But he argues that he reported this situation to a Commission agent, that the agent misdirected him, that he thought he was eligible despite earning a bit more than the maximum amount allowable to qualify, and that he applied for regular benefits, not the ERB (the maximum amount of $1,000 under the eligibility criteria for the ERB would not apply if he were to receive regular benefits).

[7] I have to decide whether the Appellant is eligible to receive the ERB or regular benefits from August 3, 2020, to August 28, 2020, and from August 31, 2020, to September 25, 2020.

Issue

[8] Is the Appellant eligible to receive the ERB or regular benefits from August 3, 2020, to August 28, 2020, and from August 31, 2020, to September 25, 2020?

Analysis

Is the Appellant eligible to receive the ERB or regular benefits from August 3, 2020, to August 28, 2020, and from August 31, 2020, to September 25, 2020?

[9] The Commission argues that the Appellant could not choose between regular benefits and the ERB, since all benefit periods established between March 15, 2020, and October 3, 2020, were established as ERB.

[10] Section 153.8(5) of the Act says that no benefit period is to be established for regular benefits between March 15, 2020, and September 26, 2020.

[11] I agree with the Commission: Since he made his claim for benefits on July 10, 2020, and then on August 2, 2020, the Appellant could not get regular benefits. A benefit period for the ERB was rightly established.

[12] The Appellant isn’t entitled to receive regular benefits between August 2, 2020, and September 26, 2020. I have to decide whether he is eligible for the ERB for that period.

[13] To be eligible to receive the ERB, a claimant has to meet the eligibility criteria.^{Footnote 1}

[14] Section 153.9(4) of the Act says that a claimant is eligible for the ERB if they receive income from employment the total of which doesn’t exceed $1,000 over a period of four weeks that succeed each other in chronological order but not necessarily consecutively.

[15] The Commission argues that the Appellant received income from employment of more than $1,000 during two periods of four weeks that succeeded each other, from August 3, 2020, to August 28, 2020, and from August 31, 2020, to September 25, 2020. It also argues that, not only did the Appellant receive a wage subsidy totalling $1,008 during each of those four-week periods, but the earnings received from his employer during both four-week periods also weren’t included.

[16] On October 5, 2020, the Appellant told a Commission agent that he had been getting an emergency wage subsidy of $424 every two weeks since June 28, 2020.^{Footnote 2} On March 1, 2021, he changed his original statements to say that the amount of the emergency wage subsidy was actually $252 per week. He admitted to receiving $504 every two weeks, and he said that the amounts he had declared before were a mistake on his part.

[17] On March 1, 2021, the Commission contacted someone with the employer who confirmed that the Appellant had been receiving an emergency wage subsidy since June 28, 2020. She confirmed that the Appellant received $504 every two weeks, and she said that he had net earnings of $422.91 per week.^{Footnote 3}

[18] At the hearing, the Appellant said that the only income he received during that period was the emergency wage subsidy, that is, $504 every two weeks. He said that he hadn’t received any other income from an employer. He said that, if he had worked a few hours, those hours had been reported to the Commission.

[19] Section 153.9(4) of the Act, introduced on a temporary basis, must be applied strictly. This means that it isn’t possible to interpret the meaning of the provision differently, since there is no additional legal test for determining whether the requirement of the provision is met. In other words: If a claimant receives income from employment the total of which doesn’t exceed $1,000 over a period of four weeks, they are still eligible for the ERB. If a claimant receives income from employment of more than $1,000 over a period of four weeks, they aren’t eligible for the ERB.

[20] This is the case for the Appellant. The facts show that he received an emergency wage subsidy of $1,008 during two periods of four weeks that succeeded each other in chronological order, between August 3, 2020, and August 28, 2020, and between August 31, 2020, and September 25, 2020. The Appellant agrees.

[21] As the Commission argues, if you were to calculate just the amount of the emergency wage subsidy he received, the Appellant received income from employment of more than $1,000 during two periods of four weeks that succeeded each other in chronological order from August 3, 2020. The Appellant received more than $1,000 during those periods, and he isn’t eligible for the ERB.

[22] As the Commission explains, a claimant is still eligible for the ERB as long as the income they receive from employment is less than $1,000.

[23] The Appellant isn’t eligible for the ERB for that period, since he had income from employment exceeding what is allowed to qualify. Although he says a Commission agent misdirected him, the facts show that the Appellant initially reported receiving a different income. On October 5, 2020, the Appellant told a Commission agent that he earned $424 every two weeks. But the facts show that, when completing his claimant reports, he instead declared, for example, earnings of $579 for the period from August 16, 2020, to August 22, 2020. And, contrary to what he said at the hearing, he reported working 53 hours from August 23, 2020, to August 29, 2020, and earning $1,590 during that period. The Appellant also reported earning $180 during the period from August 30, 2020, to September 5, 2020. For the week of September 6, 2020, to September 12, 2020, he declared earnings of $843 and mentioned working 16 hours and working for two employers.^{Footnote 4} Yet, at the hearing, the Appellant said under oath that he didn’t work for multiple employers during that period and that he had received $504 in income every two weeks—an emergency wage subsidy from a single employer.

[24] The Appellant has made conflicting statements. However, the Appellant changed his original statements from March 1, 2021, and no penalty was imposed in the file. The Appellant is responsible for declaring all the employment income he receives to the Commission.

[25] I am making this decision on a balance of probabilities. This means that the Appellant can’t get the ERB if it is more likely than not that he received income from employment the total of which exceeded $1,000 in each of the two four‑week periods between August 3, 2020, and August 28, 2020, and between August 31, 2020, and September 25, 2020. Even though he says a Commission agent told him that going over the $1,000 maximum by a few dollars would not affect his eligibility for the ERB, the facts show that, on March 1, 2021, the Appellant corrected his initial statements about his employment income.

[26] In this case, in addition to the pay statements that were filed, the Appellant’s and the employer’s statements clearly show that the Appellant received income from employment of more than $1,000 in each of the two four-week periods between August 3, 2020, and August 28, 2020, and between August 31, 2020, and September 25, 2020. The Appellant agrees that he received $1,008 during each of those four-week periods.

[27] Even though I understand the Appellant’s disappointment and that he works in a sector that was affected by the COVID-19 pandemic, the Appellant isn’t eligible for the ERB for both four-week periods.

[28] The Appellant has to pay back the ERB payments he received between August 3, 2020, and August 28, 2020, and between August 31, 2020, and September 25, 2020.^{Footnote 5}

Conclusion

[29] The Appellant isn’t eligible to receive the ERB between August 3, 2020, and August 28, 2020, and between August 31, 2020, and September 25, 2020, because he received income from employment of more than $1,000 during those two periods of four weeks that succeeded each other in chronological order.

[30] The appeal is dismissed.