Employment Insurance (EI)

Decision

[1] The appeal is allowed. The Canada Employment Insurance Commission (Commission) should not have changed the Claimant’s weekly benefit rate. Her weekly benefit rate is $584.

Overview

[2] The Claimant is a fisher. She established an Employment Insurance (EI) fishing benefit period in October 2020, and again in October 2021.

[3] This appeal is about the Claimant’s weekly benefit rate for the 2021 benefit period. The Commission set the Claimant’s weekly benefit rate at $584. After the Claimant received benefits at this rate, the Commission changed her weekly benefit rate to $300.

[4] The Commission says it changed the rate because the original rate of $584 was based on a temporary measure to help claimants during the COVID-19 pandemic. It says that it shouldn’t have used the temporary measure because the temporary measure had already been applied to the Claimant’s 2020 benefit period.

[5] The Claimant says that the Commission shouldn’t have changed the weekly benefit rate because she didn’t need the temporary measure to establish her 2020 benefit period. The Commission confirmed that the Claimant didn’t need the temporary measure to establish her 2020 benefit period, and that the measure had no impact on her benefit rate.

[6] The Commission is right that the temporary measure can only be used once. But the temporary measure is only used when it is needed to establish a benefit period.^{Footnote 1} As the Claimant didn’t need the temporary measure to establish her benefit period in 2020, by law, the temporary measure couldn’t have been applied. So the temporary measure was available to help the Claimant with her 2021 claim.

[7] This means the Commission was right when it used the temporary measure to set her weekly benefit rate at $545. It was wrong when it changed her weekly benefit rate to $300.

Issue

[8] Can the temporary measure set out in section 153.1923 of the Employment Insurance Act (Act) be used to calculate the Claimant’s 2021 weekly benefit rate for EI fishing benefits?

Analysis

[9] A claimant’s weekly benefit rate is calculated using the regional unemployment rate and the claimant’s earnings.

[10] The Claimant doesn’t take issue with the Commission’s mathematical calculations, or the regional unemployment rate used by the Commission.

[11] She says the temporary measure should be used to increase her 2021 earnings, because the temporary measure wasn’t needed for her 2020 benefit period. She says the Commission was right when it set her benefit rate at $545.

What the law says

[12] Section 153.1923(1) of the Act was implemented to help fishers during the COVID-19 pandemic. This section allows a weekly benefit rate to be calculated using the highest earnings from the current season, the 2019-2020 season and the 2018-2019 season.^{Footnote 2}

[13] Section 153.1923(2) of the Act says that a fisher may use the temporary measure to establish one benefit period for a summer fishing claim and one benefit period for a winter fishing claim.^{Footnote 3}

[14] Section 153.1922 of the Act says that a fisher who doesn’t qualify for EI fishing benefits under the regular rules can still receive benefits if they can qualify using the highest rate of earnings determined under section 153.1923.^{Footnote 4}

When the temporary measure is applied

– Temporary measure only applies when needed to qualify for EI fishing benefits

[15] Reading sections 153.1922 and 153.1923 of the Act together, I find that the temporary measures are applied only when the claimant needs them to qualify for EI fishing benefits.^{Footnote 5}

[16] There is also a temporary measure to help claimants qualify for EI regular benefits. The temporary measure for EI regular benefits applies even if the claimant doesn’t need it to qualify for benefits. The difference in application of the temporary measures for EI fishing benefits and EI regular benefits is because the legislature used different wording for the two measures.

[17] The temporary measure for EI fishing benefits is linked to the establishment of a benefit period. The temporary measure for EI regular benefits is not.

[18] Because the Claimant qualified for EI fishing benefits under the regular rules (in other words, without the temporary measure) in October 2020, by law, the temporary measure was not applied.^{Footnote 6}

[19] This means that the temporary measure was available to the Claimant to establish her October 2021 fishing claim.

The Claimant’s weekly benefit rate

[20] The Claimant’s weekly benefit rate is $584.

[21] This is the rate the Commission set using the temporary measure. The Claimant doesn’t dispute the information the Commission used to set this rate or its mathematical calculations. I see nothing in the file that would call this rate into question.^{Footnote 7}

Conclusion

[22] The Claimant’s weekly benefit rate is $584.

[23] The appeal is allowed.