Employment Insurance (EI)

Decision

[1] Leave (permission) to appeal is refused. The appeal will not proceed.

Overview

[2] A. R. is the Claimant in this case. She had a baby on August 14, 2021, and took 6 weeks off from work. Her spouse was the first one to apply for Employment Insurance (EI) parental benefits. He elected (chose) the standard option in his application.^{Footnote 1} And the Canada Employment Insurance Commission (Commission) paid him around 10 weeks of parental benefits.

[3] The Claimant submitted her own application for parental benefits after her spouse, on October 12, 2022. She asked for 18 weeks of parental benefits, also electing the standard option in her application.

[4] The Commission decided that it could not pay the Claimant parental benefits because she applied more than 52 weeks after the birth of her child (the parental benefit window period).^{Footnote 2}

[5] The Claimant appealed that decision to the General Division. The General Division agreed with the Commission and dismissed her appeal. It decided that, under the standard option, she could not receive parental benefits outside of the 52-week parental benefit window period (August 8, 2021, to August 13, 2022). It also decided that the Claimant could not switch to the extended option, even though that would have lengthened the parental benefit window period.

[6] The Claimant is now asking for permission to appeal the General Division decision to the Appeal Division.^{Footnote 3}

[7] The Claimant’s appeal has no reasonable chance of success. So, I cannot give her permission to appeal the General Division decision.

Issue

[8] Could the General Division have based its decision on an important mistake about the facts or made an error of law when it decided that the Claimant was not entitled to parental benefits?

I am not giving the Claimant permission to appeal

[9] An appeal can proceed only if the Appeal Division gives permission to appeal.^{Footnote 4} 

[10] I must be satisfied that the appeal has a reasonable chance of success.^{Footnote 5} This means that there must be some arguable ground upon which the appeal might succeed.^{Footnote 6}

[11] I can only consider certain types of errors. I have to focus on whether the General Division could have made one or more of the relevant errors (the relevant errors are also known as “grounds of appeal”).^{Footnote 7}

[12] The possible grounds of appeal to the Appeal Division are that the General Division:

• proceeded in a way that was unfair;
• acted beyond its powers or refused to exercise those powers;
• made an error of law; or
• based its decision on an important error of fact.^{Footnote 8}

[13] For the appeal to proceed, I have to find that there is a reasonable chance of success on one of the grounds of appeal.

The Claimant says that the General Division made an error of fact

[14] In her application to the Appeal Division, the Claimant said that the General Division made an error of fact.^{Footnote 9} She did not refer to any specific facts that the General Division got wrong, but her written arguments say that the Commission should be responsible for the false and misleading information that it provided to her and that caused her a financial loss.^{Footnote 10}

[15] The Claimant also highlights how the Commission was able to retroactively pay her maternity benefits outside of the 17-week maternity window period in which they are payable.^{Footnote 11} Because of this, she says that the Commission should make an exception and pay her parental benefits outside of the 52-week parental benefit window period.

The General Division’s decision

[16] The General Division confirmed that the Claimant’s child was born on August 14, 2021. It decided that the 52-week parental benefit window ran from August 8, 2021 to August 13, 2022.^{Footnote 12}

[17] The General Division said that the Claimant was bound by her spouse’s election for the standard option because he had already been paid parental benefits for about 10 weeks.^{Footnote 13}

[18] The General Division determined that the Claimant had applied for parental benefits after her spouse, on October 12, 2022. It decided that her application was outside of the 52-week parental benefit window and that she could not change her election to the extended option.^{Footnote 14}

[19] The General Division considered the Claimant’s argument that she was misinformed by more than one Service Canada agent. It was sympathetic to the Claimant’s situation but decided that the law could not be changed.^{Footnote 15}

There is no arguable case that the General Division made an error of fact or an error of law

[20] The Claimant is arguing that the General Division made an error of fact, but the essential facts do not appear to be in dispute between the parties. I have also considered whether the General Division made an error of law, but there is no arguable case on that ground either.

[21] The Claimant’s spouse was the first one to apply for parental benefits. He chose the standard option. The spouse received around 10 weeks of parental benefits. The Claimant applied for parental benefits later, also asking for the standard option. However, she applied outside of the 52-week parental benefit window period.^{Footnote 16} She asked the Commission to change the election from standard to extended, but that was only after her spouse had already received payment.^{Footnote 17}

[22] The General Division relied on the relevant sections of the law to support its decision. The law does not allow a person to change their election once parental benefits have been paid.^{Footnote 18} This means that, once the Claimant’s spouse received payments under the standard option, the Claimant was bound by her spouse’s choice and could not change to the extended option.

[23] The law is very clear that, regardless of any misinformation a person might have received, the election is the one they made on the application, and it cannot be changed once the Commission starts making payments.

[24] In recent decisions, the Federal Court of Appeal has confirmed that neither the Commission nor the Tribunal can change a person’s election, even if the Commission gave them bad or misleading information.^{Footnote 19}

[25] The Claimant’s argument that she was misled into choosing the standard option has no reasonable chance of success.

[26] I reviewed the file, listened to the audio recording of the General Division hearing, and examined the General Division decision.^{Footnote 20} I did not find relevant evidence that the General Division might have ignored or misinterpreted. As well, the General Division applied the relevant sections of the law.

Conclusion

[27] Permission to appeal is refused. This means that the appeal will not proceed.