Employment Insurance (EI)

Decision

[1] The appeal is allowed. The Claimant elected to receive extended parental benefits and her election was irrevocable.

Overview

[2] The Respondent, H. W. (Claimant), applied for and received Employment Insurance (EI) maternity benefits followed by parental benefits. She selected extended parental benefits on her application for benefits, which pays a lower rate of benefits over a longer period of time.

[3] The Claimant indicated on the application form that she wanted to receive 52 weeks of benefits. She applied for benefits on August 9, 2021 and stated that she planned to return to work on September 7, 2022. After receiving her first payment of parental benefits, the Claimant contacted the Appellant, the Canada Employment Insurance Commission (Commission) and asked to switch to the standard benefit option.

[4] The Commission refused the Claimant’s request. It said that it was too late to change after parental benefits had been paid. The Claimant requested a reconsideration and the Commission maintained its decision.

[5] The Claimant successfully appealed to the General Division of the Tribunal. The General Division decided that the Claimant made a mistake when she clicked the button to choose extended parental benefits. It found that she meant to choose standard parental benefits and that she wanted one year of maternity and parental benefits combined.

[6] The Commission is now appealing the General Division decision to the Tribunal’s Appeal Division. It argues that the General Division exceeded its jurisdiction, made errors of law and based its decision on an erroneous finding of fact in allowing the appeal.

[7] I have decided that the General Division erred in law. I have also decided to give the decision that the General Division should have given, which is that the Claimant elected to receive extended parental benefits and that this election was irrevocable.

Issues

[8] I have focused on the following issues:

1. a) Did the General Division err in law by failing to consider and apply binding case law?
2. b) If so, what is the best way to fix the General Division’s error?

Analysis

[9] I can intervene in this case only if the General Division made a relevant error. So, I have to consider whether the General Division:^{Footnote 1}

• failed to provide a fair process;
• failed to decide an issue that it should have decided, or decided an issue that it should not have decided;
• misinterpreted or misapplied the law; or
• based its decision on an important mistake about the facts of the case.

Background

[10] There are two types of parental benefits:

• Standard parental benefits – the benefit rate is 55% of an applicant’s weekly insurable earnings up to a maximum amount. Up to 35 weeks of benefits is payable to one parent.
• Extended parental benefits - the benefit rate is 33% of an applicant’s weekly insurable earnings up to a maximum amount. Up to 61 weeks of benefits is payable to one parent.

[11] The Claimant made an application for maternity and parental benefits effective August 8, 2021.^{Footnote 2} In her application, the Claimant said that her last day of work was June 25, 2021 and that she planned to return to work on September 7, 2022.^{Footnote 3}

[12] The Claimant indicated that she wanted to receive parental benefits immediately after maternity benefits. She chose the option for extended parental benefits. The Claimant was asked how many weeks of benefits she wished to receive and she chose 52 weeks from the drop down menu.^{Footnote 4}

[13] The Claimant’s first payment of extended parental benefits was issued on November 26, 2021.^{Footnote 5} The Claimant contacted the Commission on November 30, 2021 to request to change to standard parental benefits.^{Footnote 6}

[14] The Commission refused the Claimant’s request. The Commission said that it was too late for the Claimant to change options because she had already received parental benefits. The Claimant made a request for reconsideration but the Commission maintained its decision.

The General Division decision

[15] The General Division allowed the Claimant’s appeal. It found that the Claimant intended to choose standard parental benefits and did not want extended benefits.^{Footnote 7} It accepted the Claimant’s testimony that she intended to take one year off from work and thought she had to choose the extended option to select 52 weeks of total benefits.^{Footnote 8} The General Division found that the Claimant made a mistake when she asked for 52 weeks of parental benefits because she wanted 52 weeks of parental and pregnancy benefits combined.^{Footnote 9}

[16] The General Division found that it must consider all relevant evidence when determining which option the Claimant chose on her application for benefits.^{Footnote 10} The General Division found that the Claimant intended to choose standard parental benefits. It relied on the fact that the Claimant provided the dates of her planned absence from work, which supported that she wanted 52 weeks of pregnancy and maternity benefits combined.^{Footnote 11}

[17] The General Division found that there were inconsistencies in the Commission’s evidence, including that a certificate 9 showed a benefit period that ends on July 31, 2022, which does not match a claim for 52 weeks of parental benefits.^{Footnote 12} It preferred the Claimant’s evidence and decided that it was more likely than not that the Claimant chose standard parental benefits when she applied.^{Footnote 13}

[18] The General Division found that the Claimant would have appreciated the financial impact of choosing extended benefits. It considered that it would not make sense for her to choose extended benefits given her return to work date.^{Footnote 14} It found that there is a clear conflict between the Claimant’s apparent choice of extended parental benefits and the plans she made with her employer for a one-year maternity leave.^{Footnote 15}

[19] Based on all of the evidence, the General Division accepted that the Claimant clicked on extended benefits by mistake. It found that she tried to indicate on her application form that she wanted benefits to cover one year of maternity leave from her job. The General Division found that ticking a box was not sufficient proof of an election of extended benefits when other evidence suggested that that she elected to receive standard parental benefits.^{Footnote 16}

The Commission’s appeal to the Appeal Division

[20] The Commission argues that the General Division made several errors in its decision. It makes the following arguments:

• The General Division erred in law by effectively changing the Claimant’s election from extended to standard after benefits had been paid to her;
• The General Division exceeded its jurisdiction by determining what option the Claimant elected; and
• The General Division erred in law by failing to consider relevant case law from the Federal Court.

The General Division erred in law by failing to follow binding case law

[21] In its decision, the General Division considered the Federal Court decision of Karval.^{Footnote 17} The General Division found that there were significant factual differences between the facts in that decision and the Claimant’s circumstances.^{Footnote 18} However, it did not refer to or apply the Federal Court’s findings regarding the clear references to benefit rate and irrevocability of an election on the application form.

[22] In the Karval decision, the Federal Court found that it is the responsibility of claimants to carefully read and try to understand their entitlement options. If they are unclear, they should ask the Commission. It found that the questions on the application form are not objectively confusing and the explanations on the form are not lacking in information.^{Footnote 19}

[23] The Federal Court in Karval stated that the different benefit rates (55% of weekly earnings for standard and 33% for extended) and the irrevocability of the election are both clearly stated on the application form.^{Footnote 20}

[24] The Karval decision is binding jurisprudence. This means that the General Division was required to consider it. If the General Division chose not to follow the principles in Karval, it needed to explain why.^{Footnote 21}

[25] The General Division explained that the facts in Karval were different because the claimant in that case asked for 61 weeks of extended benefits and only asked to switch to standard after 6 months of receiving parental benefits.^{Footnote 22}

[26] The General Division did not consider the comments in Karval that it is fundamentally the responsibility of a claimant to carefully read and try to understand their entitlement options. The decision states that a claimant who carefully reads the application form would see that the benefit rate for extended benefits will be reduced to 33% of weekly earnings. The claimant would also read that their choice is irrevocable once benefits have been paid.

[27] In a recent decision from the Federal Court of Appeal in Canada (Attorney General) v. Hull (Hull), the Court found that the principles in Karval applied despite factual differences.^{Footnote 23} In that case, the claimant also requested 52 weeks of extended parental benefits, wanting one year of maternity and parental benefits combined. The Court confirmed the principle from Karval that “there is no legal remedy available to claimants who base their election on a misunderstanding of the parental benefit scheme.”^{Footnote 24}

[28] The General Division found that the Claimant mistakenly selected extended benefits wanting to claim 52 weeks of combined pregnancy and parental benefits. The General Division erred in law by failing to apply the binding Federal Court decision in Karval when making this determination.

[29] As I have found that the General Division erred, I do not have to address the balance of the Commission’s arguments.

I will fix the General Division’s error by giving the decision it should have given

[30] At the hearing before me, both parties argued that, if the General Division made an error, then I should give the decision the General Division should have given.^{Footnote 25}

[31] I agree. I find that this is an appropriate case in which to substitute my own decision. The facts are not in dispute and the evidentiary record is sufficient to enable me to make a decision.

The Claimant elected to receive extended parental benefits and the election was irrevocable

[32] The Appeal Division and the General Division have issued a number of decisions concerning the election of standard or extended parental benefits. In many of these decisions, the Tribunal has considered which type of benefits the Claimant actually elected. Where there is conflicting information on the application form, the Tribunal has determined which election the Claimant is more likely to have chosen. In other cases, the Tribunal has considered the Claimant’s intention in making the election.

[33] The recent decision of the Federal Court of Appeal in Hull, considered the proper interpretation of sections 23(1.1) and 23(1.2) of the EI Act.^{Footnote 26} Section 23(1.1) is the section that says a claimant must elect standard or extended benefits when they make a claim for parental benefits. Section 23(1.2) says that the election is irrevocable once benefits are paid.

[34] In Hull, the claimant had selected the option of extended parental benefits on her application form and requested 52 weeks of parental benefits, following maternity benefits. The claimant received extended parental benefits for several months before realizing her mistake. She had been confused by the application form and had intended to receive one year of maternity and parental benefits combined. The General Division found, on a balance of probabilities, that she had elected to receive standard parental benefits.

[35] The Court in Hull stated:

The question of law for the purpose of subsection 23(1.1) of the EI Act is: does the word “elect” mean what a claimant indicates as their choice of parental benefit on the application form or does it mean what the claimant “intended” to choose?^{Footnote 27}

[36] The Court found that a claimant’s election is what they choose on their application form, and not what they may have intended.^{Footnote 28} It also found that once payment of parental benefits has started the election cannot be revoked, by the claimant, the Commission, or the Tribunal.^{Footnote 29}

[37] Applying the Court’s decision in Hull to the Claimant’s circumstances, it is clear that she elected to receive extended parental benefits. This was the option chosen on the application form. She chose to receive extended parental benefits for 52 weeks. Once the payment of those benefits began, the election was irrevocable.

[38] The Claimant said that she is an educated person and found the forms confusing. She selected 52 weeks because she planned to be off for a year, which was confirmed with documentation from her employer and daycare. Her intent was always to be off for a year. The Claimant argues that the form is very unclear and it is unfair that so many women have found themselves in the same situation as her.

[39] The Claimant says that the evidence all shows that it was always her intent to take a one year leave and she chose extended parental benefits by accident. It was mistake and as soon as she realized her mistake she put in a request to switch to standard benefits. She argues that the form needs to be clearer so this doesn’t happen to more people.

[40] It is clear that the Claimant did not intend to ask for 52 weeks of extended parental benefits after 15 weeks of maternity benefits. I agree with the General Division that the evidence suggests that it was always her intention to be off for one year. Unfortunately, the Federal Court of Appeal in Hull has made it clear that the box chosen on the application form, and the number of weeks, are the election regardless of what a claimant may have intended.

[41] I have considered whether the return to work date that the Claimant provided on the application form has any impact on her election. She provided a return to work date that was about one year after she left work. This supports that she wanted one year of pregnancy and parental benefits combined. It also conflicts with the choice to receive 52 weeks of extended benefits after pregnancy benefits for a total of 67 weeks.

[42] In Hull, the Court stated that there is only one reasonable interpretation of section 23(1.1) of the EI Act. It found that the choice of standard or extended on the application form, along with the number of weeks a claimant wants to claim, is the election. It found that this is the evidence of the election a claimant makes and the Commission is not involved in determining whether a claimant has selected the right option.^{Footnote 30}

[43] The Court in Hull stated that the election is the choice that the Claimant makes on their application, for standard or extended parental benefits. I understand that the Claimant’s return to work date contradicts this choice along with the documents she provided from her employer and daycare. However, it is not required that a claimant provide a return to work date, and this date may be subject to change. The legislation does require that a choice between standard and extended benefits be made and the Federal Court of Appeal has stated that this is the Claimant’s election even if it is not what she intended.^{Footnote 31}

[44] Parliament chose not to include any exceptions to the irrevocability of the election. It is unfortunate for the Claimant that a simple mistake on an application form can have significant financial consequences for her. Her circumstances are sympathetic. However, I must apply the law as it is written.^{Footnote 32} I find that the legislation and the case law confirm that an election cannot be revoked on the basis of a mistake.

[45] A claimant is permitted to change their election after the application form is submitted but before parental benefits have been paid. Claimants can create an account with Service Canada to review the start date and the benefit rate of their maternity and parental benefits. This does provide the ability for claimants to ensure that the choice they made on their application form was the choice that they intended.

[46] I understand that the Claimant’s election of extended parental benefits was a mistake. She intended to choose standard parental benefits. However, the Federal Court of Appeal has made it clear that her intention at the time that she filled out the form is not relevant to her election.

[47] The Claimant chose extended parental benefits on her application form. This was her election and, after benefits were paid to her, it became irrevocable.

Conclusion

[48] The appeal is allowed. The Claimant elected extended parental benefits and the election was irrevocable.