Employment Insurance (EI)

Decision

[1] The Claimant can receive five weeks of shared standard parental benefits.

[2] This means that the appeal is allowed in part.

Overview

[3] The Claimant’s baby was born on June 26, 2020. On June 30, 2021, he applied for standard parental benefits. On his application form, he asked for nine weeks of shared standard parental benefits, to start effective July 4, 2021. At the hearing he clarified that he wished to receive six weeks of shared parental benefits.

[4] The Commission refused the Claimant’s request to claim parental benefits. It decided that the Claimant cannot receive any weeks of shared parental benefits because standard parental benefits are only payable within the 52-week “parental benefit window” set out in section 23 of the Employment Insurance Act (EI Act).

[5] The Claimant is appealing the Commission’s decision to the Social Security Tribunal.

Post hearing submissions

[6] After the hearing, I asked the Commission to clarify its interpretation of section 23 of the EI Act and it made additional representations. I sent the Commission’s representations to the Claimant and gave him time to respond. The Claimant did not reply to the Commission’s new submissions.

Issue

[7] Can the Claimant receive shared standard parental benefits more than 52 weeks after the week of the birth of his child?

Analysis

[8] 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}

[9] 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.

[10] The law also says that when a claimant claims 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}

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

Additional weeks of shared parental benefits

[12] 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.

[13] 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.

Can the Claimant receive standard parental benefits more than 52 weeks after the birth of his baby?

[14] I find that the Claimant can receive five weeks of shared parental benefits more than 52 weeks after the birth of his baby. The parental benefit window does not apply to prevent him 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

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

[16] 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. It relies on the decision of a former Umpire in CUB 46747, which held that a claimant did not qualify for benefits because they claimed benefits more than 52 weeks after the child was placed.^{Footnote 7}

[17] I respectfully disagree with the Commission’s argument that the wording of section 23 of the EI Act on this issue is clear. I also note that CUB 46747 was decided before Bill C-86 was passed to add the additional shared parental benefits to the EI Act.

[18] In this case, the Claimant’s spouse claimed 15 weeks of maternity benefits, followed by 34 weeks of standard parental benefits. The Claimant wishes to claim six weeks of standard parental benefits, bringing the total shared parental benefits to the maximum of 40 weeks.^{Footnote 8} The Claimant says that the couple reviewed Service Canada documents before making the claim, to clarify the rules regarding shared parental benefits. He left work on June 30, 2021, and made a claim for parental benefits.

[19] The Claimant’s application was denied, and he called Service Canada to discuss the reason for the Commission’s refusal.^{Footnote 9} He says that an agent told him this was a “common error that many people make.” The agent advised him to make a request for reconsideration and his claim would be approved.^{Footnote 10} The Claimant requested reconsideration, and the Commission again denied his claim.^{Footnote 11}

[20] The Claimant argues that the benefits application form clearly states that EI benefits are a “shared responsibility,” and that one of the duties of the Commission is to “give you accurate information about your claim, including how you may share parental benefits with your EI eligible spouse or common-law partner.”^{Footnote 12}

[21] If section 23 of the EI Act is clear on the interaction between the parental benefit window and the additional shared parental benefits, it is surprising that Commission agents are providing such divergent advice on this issue. In fact, the lack of clarity over whether the parental window applies to the additional shared benefits under section 23(4) of the EI Act has led to a great deal of confusion.

[22] 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 13} This, in itself, is one significant indicator that the wording of the legislation is unclear.

[23] I acknowledge that in most 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.

[24] So, Commission agents have given conflicting advice on when claimants can receive the additional shared parental benefits. But confusion on this issue goes well beyond 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

[25] First, the Commission argues that parental benefits must be claimed within a 52-week parental benefit window. But if a 52-week parental benefit window must be met, it is not mathematically possible for two parents to take all 40 weeks of standard shared benefits sequentially, after a childbearing parent completes 15 weeks of maternity benefits. This is because 15 weeks of maternity benefits, followed by 40 weeks of shared standard parental benefits include a total of 55 weeks of benefits. This does not include any weeks allowed for a waiting period.

[26] The Commission argues that section 23(4) of the EI Act does not indicate when or prescribe the window for when the maximum 40 weeks of shared parental benefits can be paid.^{Footnote 14} I agree. But section 23(4) also does not state that it is limited to the parental benefit window under section 23(2) of the EI Act. Given the mathematical impossibility of two parents taking all 40 weeks of standard parental benefits sequentially, I think that the two sections are in conflict.

[27] 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, 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.

[28] I find it unlikely that the government would have introduced additional weeks of shared benefits only to require that the shared benefits must be taken by both parents at the same time. Allowing additional weeks of benefits, but requiring that the weeks overlap, does not necessarily enable a childbearing parent to return to work earlier.

There is no reference to the additional shared parental benefits in the parental window provisions of the EI Act

[29] Second, there is no reference to the additional shared weeks of benefits in sections 23(2) to (3.4) of the EI Act (the parental benefit window provisions). It is true that 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.”

[30] But the wording used in section 23(4) of the EI Act is very similar to the wording used in section 23(2). Section 23(4) (which allows the additional shared weeks of benefits) expressly refers to the amount of shared weeks of parental benefits as the “weeks of benefits payable under this section [...] up to a maximum of 40.”^{Footnote 15} This suggests that the additional shared weeks of benefits are allowed, independent of the parental benefit window.

[31] So, 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 contain important clarifications

[32] Third, when the additional shared benefits were added to the EI Act, Bill C-86 included important clarifications so that there was no misunderstanding about a claimant’s entitlement to benefits.

[33] Section 23(4) of the EI Act says that where two major attachment claimants each make a claim for standard parental benefits, the weeks of benefits payable may be divided between them, up to a maximum of 40 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.

[34] 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).

[35] But while Parliament was careful to emphasize any limits on the additional benefits, there is no reference in Bill C-86 to clarify that there is a “parental window” limit and that when maximum benefits are claimed, shared parental benefits must overlap.

[36] 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

[37] 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.

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

[39] During legislative debate on Bill C-86, 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.

[40] Mr. Joël Lightbound sponsored second reading of Bill C-86 on November 1, 2018.^{Footnote 16} 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)

[41] Ms. Pam Damoff also spoke in the Legislature at second reading.^{Footnote 17} 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.

[42] 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.

[43] 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:^{Footnote 18}

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.

Legislative ambiguity should be resolved in favour of the Claimant

[44] 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 19}

[45] 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 20}

[46] 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 additional weeks of parental benefits?

[47] The Claimant can receive five weeks of shared parental benefits. He cannot receive all six weeks of the shared parental benefits he requested, because he did not apply for benefits until 52 weeks after his child was born. I find that the EI Act allows shared parental benefits, including the five additional weeks of standard parental benefits, to be claimed sequentially when the benefits are shared between two parents.

[48] 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 standard parental benefits.

[49] 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 one after the other.

Conclusion

[50] The Claimant can receive five weeks of shared standard parental benefits.

[51] This means that the appeal is allowed in part.