Employment Insurance (EI)

Decision

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

Overview

[2] The Respondent, K. D. (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 48 weeks of benefits. She was issued her first payment of parental benefits around February 12, 2021. On February 25, 2022, 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’s election of extended parental benefits was invalid. 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 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.

Preliminary matters

[8] The Claimant did not attend the hearing in this matter. I am satisfied that she received the Notice of Hearing and was aware of the hearing date and time. I proceeded with the hearing in the Claimant’s absence.

Issues

[9] The issues in this appeal are:

1. a) Did the General Division err in law by failing to apply section 23(1.2) of the EI Act?
2. b) Did the General Division err in law by failing to meaningfully analyze the evidence?
3. c) Did the General Division base its decision on an erroneous finding of fact when it decided that the application form misled the Respondent?
4. d) If so, how should the error be fixed?

Analysis

[10] 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

[11] 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.

[12] The EI Act says that a claimant must elect to receive standard or extended parental benefits and that the choice is irrevocable once parental benefits have been paid.^{Footnote 2}

[13] The Claimant applied for maternity and parental benefits on October 19, 2020.^{Footnote 3} She 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 48 weeks from the drop down menu.^{Footnote 4}

[14] The Claimant’s first payment of extended parental benefits was processed on February 12, 2021.^{Footnote 5} She contacted the Commission on February 25, 2021 to request to change to standard parental benefits.^{Footnote 6}

[15] 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

[16] The General Division allowed the Claimant’s appeal. It found that the Claimant chose extended parental benefits on her application form but this choice was invalid.^{Footnote 7} It found that she would have chosen standard benefits if the information on the application form was clear.^{Footnote 8}

[17] The General Division found that the Claimant planned to take one year off work after taking a one-week vacation. On her application form, she stated that she would return to work on October 26, 2021.^{Footnote 9}

[18] The General Division found that the information on the application form misled the Claimant. It found that the Claimant was not aware that she was choosing the number of weeks of parental benefits only. The Claimant chose 48 weeks of extended benefits believing that this included the 15 weeks of maternity benefits.^{Footnote 10}

[19] The General Division found that the application form does not provide clear information. It found that the form does not clearly explain that maternity benefits are not included in the number of weeks a claimant elects to receive benefits.^{Footnote 11} It found that the number of weeks the Claimant indicated, 48, was contradicted by the return to work date that she provided.^{Footnote 12}

[20] The General Division found that the Claimant was prevented from making a valid election on her application form because the information was not clear.^{Footnote 13} It found the Claimant’s election invalid and rescinded the Commission’s decision to pay her extended parental benefits. Because the election was invalid, the General Division determined that the Claimant was entitled to elect standard parental benefits.^{Footnote 14}

The Commission’s appeal

[21] The Commission applied for leave to appeal the General Division decision. Another member of the Appeal Division dismissed the application and the Commission applied for judicial review to the Federal Court.

[22] The Federal Court found that the decision not to grant leave to appeal was unreasonable.^{Footnote 15} The Court considered another decision of the Federal Court, Karval v Canada^{Footnote 16} and found that there is a strong argument it applies despite factual differences.^{Footnote 17} It confirmed the Court’s finding in Karval that the application form is not confusing and does not lack information.^{Footnote 18} The matter was returned to the Appeal Division for redetermination.

[23] The Commission argues that the General Division made errors of fact and law in its decision when it found that the Claimant’s election of extended parental benefits was invalid. It makes the following arguments:

• The General Division erred in law by failing to apply 23(1.2) of the EI Act;
• The General Division based its decision on an erroneous finding of fact when it found that the application form misled the Claimant; and
• The General Division erred in law by failing to meaningfully analyze the evidence.

The General Division failed to meaningfully analyze the evidence

[24] In its decision, the General Division found that the Claimant was prevented from making a valid election because she was misled by the information on the application form.^{Footnote 19} The General Division found that the application form does not make it clear that the number of weeks of benefits she was requesting should only include parental benefits. It found that the Claimant was not aware that her choice would result in a lower amount of benefits.^{Footnote 20}

[25] The General Division noted that the Claimant provided a return to work date that contradicted her choice of extended parental benefits. It also relied on the Claimant’s evidence that supported her return to work after one year of maternity and parental leave.^{Footnote 21}

[26] The Commission argues that the General Division failed to meaningfully analyze the evidence in making this determination. It argues that the application form clearly states that there are different benefits rates for the two types of benefits. The form is also clear that the choice the Claimant makes is irrevocable once she starts receiving benefits.

[27] The application form explains the differences between the standard and extended option and clearly indicates the different benefits rates. After a claimant chooses between standard and extended benefits, the form asks: “How many weeks do you wish to claim?”

[28] The question on the application form is clear. The Claimant was asked how many weeks she wished to claim and there is nothing on the form to suggest that she is being asked how many weeks she will be off work. As confirmed by the Federal Court in Karval and De Leon, the application form is not confusing or lacking in information.^{Footnote 22}

[29] The General Division finding that the Claimant was misled by the application form ignores the clear information about the different benefit rates. The General Division failed to meaningfully analyze this evidence, which was an error of law.

[30] 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

[31] At the hearing before me, the Commission argued that, if the General Division made an error, then I should give the decision the General Division should have given.^{Footnote 23}

[32] 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

[33] 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.

[34] A recent decision of the Federal Court of Appeal, Canada (Attorney General) v Hull (Hull), considered the proper interpretation of sections 23(1.1) and 23(1.2) of the EI Act.^{Footnote 24}

[35] 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.

[36] 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 25}

[37] The Federal Court of Appeal (Court) interpreted the meaning of “elect” in section 23(1.1) of the EI Act. It considered the text, context and purpose of sections 23(1.1) and 23(1.2) and determined that there is only one reasonable interpretation of the section.^{Footnote 26}

[38] The Court found that the ordinary meaning of the text supports that the choice made on the application form, for standard or extended benefits, along with the specific number of weeks is the claimant’s election.^{Footnote 27} It found that section 23(1.2) is clear that the choice made by a claimant becomes irrevocable upon the payment of benefits.^{Footnote 28}

[39] The Court considered the context of these provisions. It looked at the sections of the EI Act that provide for parental benefits, the application process and the form of the application.^{Footnote 29} The Court found that this context also supported the interpretation that the act of selecting the option for standard or extended benefits and the number of weeks on the application is the election.^{Footnote 30}

[40] The Court examined the purpose of sections 23(1.1) and 23(1.2) of the EI Act. It found that Parliament chose to make a claimant’s election irrevocable to allow for certainty and efficiency for other parties affected by a claimant’s choice.^{Footnote 31}

[41] The Court concluded that the text, context and purpose support only one interpretation of “elect” in section 23(1.1): a claimant’s election is the choice that they make on the application form.^{Footnote 32}

[42] 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 48 weeks. Once the payment of those benefits began, the election was irrevocable.

[43] The Federal Court in Karval and De Leon confirmed that the application form is not confusing or lacking in information. It also confirmed that there may be some relief available to a claimant who is actually misled by the Commission. However, the claimant must be misled by relying on official and incorrect information.^{Footnote 33} The application may not have been clear to the Claimant but it cannot be said to contain incorrect information.

[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 34} 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.