Employment Insurance (EI)

Decision

[1] I am allowing the appeal. This means that the Claimant can receive 29 weeks of extended parental benefits, starting on March 28, 2021.

Overview

[2] The Claimant’s baby was born on March 2, 2020. The Claimant and his spouse decided to divide the maximum number of extended parental benefits allowed under the Employment Insurance Act (EI Act). Since they are sharing parental benefits, the EI Act allows them to take up to eight additional weeks of extended benefits.

[3] After getting advice from Service Canada, the two parents opted to claim 69 weeks of shared parental benefits, taken sequentially. The Claimant planned to take 29 weeks of those parental benefits, starting on March 28, 2021.

[4] The Commission says that the Claimant cannot receive all 29 weeks of parental benefits he expected. It says that parental benefits are only payable within the “parental benefit window” set out in section 23 of the EI Act. The Commission says that the extended parental benefit window ends 78 weeks after the birth of his baby. It says that the Claimant’s parental benefit window ends on September 4, 2021.

Issue

[5] Can the Claimant receive the additional shared extended parental benefits more than 78 weeks after the week of the birth of his child?

Post-hearing submissions

[6] The Tribunal asked the Commission to clarify its interpretation of section 23 of the EI Act. I sent the Commission’s submissions to the Claimant. The Claimant replied on July 28, 2021. I gave the Commission time to respond to the Claimant’s new submissions and it made no representations in response.

Analysis

[7] Parental benefits are payable to a claimant to care for their newborn child.^{Footnote 1} The EI Act says that parental benefits are usually payable for each week of unemployment in the period that begins with the week in which the child is born or placed with the parent, and ends after 52 weeks.^{Footnote 2}

[8] The 52-week period after a baby is born or placed is referred to by the Commission as the “parental benefit window.” This window can be extended in certain circumstances. For example, it can be extended for 26 weeks to allow a claimant to receive extended parental benefits. The period can also be extended when a claimant’s baby is hospitalized.

[9] The law also says that when a claimant receives more than one type of special benefit, the parental benefit window is extended to allow them to claim the maximum number of special benefits allowed under the EI Act.^{Footnote 3}

[10] The maximum number of weeks of parental benefits in a benefit period for an individual claimant is 35 weeks of regular parental benefits or 61 weeks of extended parental benefits, as elected by the claimant.^{Footnote 4}

Additional weeks of shared parental benefits

[11] In 2018, the government passed the Budget Implementation Act, 2018, No. 2, which allowed additional weeks of parental benefits when those benefits are shared between two parents.^{Footnote 5} I will refer to this amending legislation as Bill C-86.

[12] The new sections added by Bill C-86 say that when benefits are shared between two parents, they can receive an additional five weeks of standard parental benefits, or an additional eight weeks of extended parental benefits.^{Footnote 6} Each claimant is still limited to an individual maximum of 35 weeks of standard parental benefits or 61 weeks of extended parental benefits.

Does a 78-week parental benefit window prevent the Claimant from receiving additional shared parental benefits allowed under Bill C-86?

[13] No. I find that the parental benefit window does not apply to prevent the Claimant from receiving the additional shared parental benefits allowed under section 23(4) of the EI Act. My reasons are set out below.

The wording of the legislation is unclear

[14] I think that the wording of section 23 of the EI Act is unclear on whether the parental window applies to prevent a claimant from receiving the extra shared weeks of parental benefits allowed under section 23(4) of the Act.

[15] The Commission argues that the wording of section 23 of the EI Act is clear, and that the additional shared weeks of benefits allowed under Bill C-86 did not disturb the parental window. It says that there is no case law that directly applies to the Claimant’s situation, but that adjudicators cannot rewrite legislation, nor interpret it in a manner that is contrary to its plain meaning.^{Footnote 7}

[16] I agree that the Tribunal must apply the EI Act as it is written. But I respectfully disagree with the Commission’s argument that the wording of section 23 of the EI Act on this issue is clear.

[17] In fact, the lack of clarity over the interaction between the parental window under sections 23(2) to (3.4) of the EI Act, and the additional shared benefits allowed under section 23(4) has led to a great deal of confusion. In a number of previous appeals before this Tribunal, claimants have stated that Commission agents told them they are entitled to claim shared parental benefits beyond a parental window of 52 or 78 weeks.^{Footnote 8} This is, in itself, one significant indicator that the wording of the legislation is unclear.

[18] I acknowledge that in previous decisions, the Tribunal has decided that the parental window applies to claims made for additional shared parental benefits. However, I am not required to follow previous decisions of the Tribunal and I have decided not to follow them because I think that the legislation is unclear. There is, as yet, no guidance from the courts or from the Tribunal’s Appeal Division on this issue.

[19] The Commission argues that parental benefits are only payable during the parental window, which begins with the week in which the child of a claimant is born or placed with the claimant, and ends 52 weeks after that week.

[20] When extended benefits are chosen, the Commission says that the parental window is extended by up to 26 weeks, to allow for payment of extended parental benefits up to a maximum of 61 weeks of benefits. The Commission says that parental benefits, including additional shared benefits, can only be claimed up to 78 weeks after the birth or placement of a child.

[21] In this case, the Claimant’s spouse claimed 15 weeks of maternity benefits, and 40 weeks of extended parental benefits. After consulting with Service Canada, the Claimant planned to claim 29 weeks of extended parental benefits (for a total of 69 weeks of extended benefits shared between the two parents) to start immediately after his spouse completed her maternity and parental benefit claim.

[22] The Commission says that the Claimant cannot claim all 29 weeks of parental benefits because his claim would exceed the parental benefit window of 78 weeks. It says that the Claimant’s parental benefit window ends on September 4, 2021.

[23] The Commission argues that parents can take the additional shared parental benefits either sequentially or concurrently, but that neither parent can claim parental benefits more than 78 weeks after a child is born or placed with the parents.^{Footnote 9}

[24] The Claimant testified that his job required him to book time off well in advance of his leave. He made a call to the Commission on September 11, 2020, to clarify his parental leave entitlement. The Commission agent firmly advised him of the specific dates when he could claim 29 weeks of benefits: from March 28, 2021, until October 16, 2021. As a result, he made plans to take a 29-week leave from his job for that period. He applied for parental benefits on March 28, 2021.

[25] The Commission acknowledges that Service Canada told the Claimant he could take his parental benefits sequentially, immediately after his spouse completed her maternity and parental benefits. But it says that misinformation by the Commission is no basis for relief from the fundamental operation of the EI Act.^{Footnote 10}

[26] So, Commission agents have given conflicting advice to claimants. But the ambiguity in the legislation goes well beyond the issue of any verbal or written communication between the Commission and claimants. I think that the legislative provisions themselves are unclear for the following three reasons:

Conflict between the parental benefit window and the added benefits

[27] First, the Commission argues that shared benefits can be taken sequentially or concurrently. But if a 78-week parental window must be met, it is not possible for two parents to take all 69 weeks of extended shared benefits sequentially, after a childbearing parent completes 15 weeks of maternity benefits. This is because 15 weeks of maternity benefits, followed by 69 weeks of shared extended parental benefits include a total of 84 weeks of benefits. This does not include any weeks allowed for a waiting period.

[28] There is nothing in the EI Act that states that the extra weeks of shared parental benefits must overlap with the other parent’s benefits so that the parents can be sure to receive them. So, I think there is a conflict between the parental window in section 23(2) of the EI Act and the additional shared benefits allowed under a combination of sections 12(4) and 23(4) of the Act.

[29] Also, I note that the Commission’s representations referenced section 23(3.21) of the EI Act, but included no reference to section 23(3.2) of the Act.^{Footnote 11} The childbearing parent appears to be eligible under this section for an extension of the extended parental window beyond 26 weeks if they are claiming both maternity and parental benefits. This extension would be allowed on the basis that they are claiming more than one special benefit.

s.23(3.2) The period referred to in subsection (2) is extended so that benefits may be paid up to the applicable maximum number of weeks referred to in subparagraph 12(3)(b)(i) or (ii) if, during a claimant’s benefit period,

1. (a) regular benefits were not paid to the claimant;
2. (b) benefits were paid to the claimant for more than one of the reasons mentioned in paragraphs 12(3)(a) to (f);
3. (c) the maximum total number of weeks established for those reasons is greater than 50; and
4. (d) benefits were paid for the reason mentioned in paragraph 12(3)(b) but for fewer than the applicable maximum number of weeks established for that reason.

[30] So, according to the Commission’s interpretation of the EI Act, it seems that only the non-childbearing parent is barred from taking all of their extended parental benefits within a 78-week parental benefit window.

[31] I find it unlikely that the government would have allowed additional weeks of shared benefits only to limit the non-childbearing parent from receiving them, when they are taken sequentially. Allowing additional weeks of benefits, but requiring the weeks to overlap, does not necessarily enable a childbearing parent to return to work earlier.

The parental benefit window refers to benefits under section 12(3)(b)

[32] Second, there is no reference to the additional weeks of benefits in sections 23(2) to (3.4) of the EI Act (the parental window provisions). Section 23(2)(b) says that benefits are payable for each week of unemployment in the period “that ends 52 weeks after the week in which the child or children of the claimant are born or […] placed with the claimant for the purpose of adoption.”

[33] The Commission then relies on section 23(3.21) of the EI Act, which says that the 52-week period is extended by 26 weeks where “[…] the applicable maximum number of weeks is established in subparagraph 12(3)(b)(ii)[…].” But the additional weeks of shared benefits are not permitted by section 12(3)(b) of the EI Act. In fact, they are permitted by a combination of sections 12(4)(b)(ii) and 23(4) of the Act.

[34] I also note that the wording used in section 23(4) of the EI Act is similar to the wording used in section 23(2). Section 23(4) (which allows the additional weeks) expressly refers to the number of shared weeks of extended parental benefits as the “weeks of benefits payableunder this section [...] up to a maximum of 69[…]”^{Footnote 12} This wording suggests that the additional weeks are allowed, independent of the parental benefit window.

[35] I think that the EI Act is, at best, silent on whether the extra shared benefits are subject to the parental benefit window.

Bill C-86 parental benefit provisions include important clarifications

[36] Third, when the additional shared benefits were added to the EI Act, Bill C-86 included important clarifications about a claimant’s entitlement to benefits.

[37] Section 23(4) of the EI Act says that where two major attachment claimants each make a claim for extended parental benefits, the weeks of benefits payable may be divided between them, up to a maximum of 69 weeks. Section 23(4.1) adds “For greater certainty,” that the total number of weeks that can be paid for the same child or children is limited to 40 weeks of standard parental benefits, or 69 weeks of extended parental benefits.

[38] Section 23(4.11) of the EI Act clarifies that the maximum number of weeks that may be paid to an individual claimant is 35 or 61 weeks, even if the number of weeks of benefits are divided in accordance with sections 23(4) and (4.1).

[39] But while Parliament was keen to emphasize any limits on the additional benefits, there is no reference in Bill C-86 to clarify any “parental window” limit or that when maximum benefits are claimed, shared parental benefits would have to overlap.

[40] If Parliament had intended to limit the additional shared parental benefits allowed under section 23(4) to a 52 or 78-week parental window, I think it would have done so. This would have been an important clarification. But the government did not include any provision to clarify that the shared benefits, if taken, must overlap with the other parent.

The government’s stated intent regarding the extra shared benefits

[41] Since I think that the wording of the legislation is unclear, I will consider the objects and purposes of the EI Act, as well as the stated intent of the Bill C-86 amendments to the Act.

[42] I will first consider the legislative documents relating to the legislation that allowed the additional weeks of benefits.

[43] During legislative debate, the government made statements in the Legislature regarding the proposed new sections of the EI Act. I think that there are clear indications in those statements that the government intended that Bill C-86 would extend the parental benefit period by five weeks for standard parental benefits and by eight weeks for extended parental benefits.

[44] Mr. Joël Lightbound sponsored second reading of Bill C-86 on November 1, 2018.^{Footnote 13} His statement to the Legislature, as reported in Hansard, included the following: 

… the government wants to make the EI system more flexible and encourage a more balanced sharing of responsibilities, so that both parents get to spend time with their young children while pursuing careers.

To support young families and promote gender equality at work and at home, the act proposes a new EI parental sharing benefit that will encourage a more balanced sharing of family and work responsibilities by providing five additional weeks of benefits in cases where both parents agree to share their parental leave. This period will be extended to eight weeks if the parents opt for extended parental benefits. This optional incentive will encourage the second parent in two-parent families to share equally in parenting responsibilities. New mothers will have more flexibility to return to work sooner if they wish. Equitable parental leave could lead to fairer hiring practices, which would reduce conscious or unconscious discrimination against women by employers. (emphasis added)

[45] Ms. Pam Damoff also spoke in the Legislature at second reading.^{Footnote 14} Her statements are recorded in Hansard as follows:

During our study on economic security of women, we also heard about the importance of both parents sharing parental leave to support gender equality in the home and in the workplace. The budget implementation act would implement the new employment insurance parental sharing benefit. The changes would give greater flexibility to parents by providing an additional five weeks of use-it-or-lose-it parental benefits when both parents agree to share parental leave.

[46] I recognize that statements in the Legislature do not override the text of a statute. But these statements provide some insight into the intention of Parliament.

[47] I also note that in related provisions, Bill C-86 amended the Canada Labour Code to increase the aggregate amount of leave for two employees in respect of the same child or children to 86 weeks:

Aggregate leave — maternity and parental

206.2 The aggregate amount of leave that may be taken by more than one employee under sections 206 and 206.1 in respect of the same birth shall not exceed 86 weeks, but the aggregate amount of leave that may be taken by one employee under those sections in respect of the same birth shall not exceed 78 weeks.

Ambiguity should be resolved in favour of the Claimant

[48] The Supreme Court of Canada has held that the Act is designed to make benefits available quickly to those unemployed persons who qualify under it and so it should be liberally interpreted to achieve that end.^{Footnote 15}

[49] The Supreme Court of Canada has also held that, in the context of benefits-conferring legislation, an Act ought to be interpreted in a broad and generous manner, and that “any doubt arising from difficulties of language should be resolved in favour of the claimant.”^{Footnote 16}

[50] There is an apparent conflict between the parental benefit window set out in sections 23(2) to (3.4) of the EI Act, and the provisions that allow additional shared weeks of parental benefits set out in section 23(4) of the Act. Since the legislative provisions are unclear, the ambiguity caused by this conflict should be resolved in favour of the Claimant.

So, can the Claimant receive 29 weeks of parental benefits, from March 28, 2021, until October 16, 2021?

[51] Yes, I find that the Claimant can receive 29 weeks of parental benefits from March 28, 2021, until October 16, 2021. The EI Act allows additional weeks of parental benefits to be claimed sequentially when the benefits are shared between two parents.

[52] I have considered the wording of the EI Act, the legislative intent of the EI Act, and the stated intent of Bill C-86, which added the additional weeks of shared benefits.

[53] I do not agree with the Commission’s argument that the parental benefit window applies to prevent claimants from receiving the additional weeks of benefits allowed under section 23(4) of the EI Act, when those benefits are shared by two parents and taken sequentially.

Conclusion

[54] The appeal is allowed.

[55] This means that the Claimant can claim 29 weeks of extended parental benefits, taken immediately after his spouse has completed her maternity and parental benefits.