Employment Insurance (EI)

Decision

[1] The appeal is allowed in part. The Commission allocated the wrong week of earnings to the Claimant’s waiting period and is instructed to allocate earnings from the correct week. This means the overpayment remains but may be modified once the correct week is allocated.

Overview

[2] The Claimant is employed by a school board and is regularly laid off for the Christmas, March and summer breaks. She applied for EI benefits for the March 2017 one-week break. The Claimant had to serve a two-week waiting period before she could be paid benefits. So, she did not receive any EI benefits during the March break because it was part of this waiting period. The Claimant next received EI benefits in July 2017. The Commission said the Claimant had earnings during the waiting period and these earnings should have been allocated to (deducted from) the Claimant’s benefits in July 2017. The Commission discovered the error after the Claimant had been paid benefits. This resulted in an overpayment of $484. The Claimant does not agree with the Commission’s decision. She says that she was not paid for the week she claimed EI benefits and that no deduction should be made.

Preliminary Matters

[3] In preparation for this hearing, I asked the Commission for information about the start of the EI claim that led to the waiting period the Claimant served in March 2017. The Commission answered after the hearing. The Claimant was sent a copy of the Commission’s answers. I then gave the Claimant an opportunity to reply to the Commission’s answers if she wished and asked that she do so by October 23, 2020. The Claimant has not replied as of the date of this decision.

Issues

[4] I have to decide whether the money the Claimant received is earnings, as defined by the Employment Insurance Act, and, if I decide the money is earnings, did the Commission allocate the amount correctly from the Claimant’s EI benefits?

Reasons for my decision

[5] The law says that earnings are the entire income of a claimant arising out of any employment.^{Footnote 1} The law defines both “income” and “employment.” “Income” includes any income that a claimant did or will get from an employer or any other person, whether it is in the form of money or something else.^{Footnote 2} “Employment” includes any employment under any kind of contract of service or employment.^{Footnote 3}

[6] There is no dispute that the Claimant received income from her employer for the work she performed. As a result, I find that the money the Claimant received in March 2017, is earnings, as defined by the Employment Insurance Act.

[7] I must now decide if the Commission has correctly allocated those earnings.

[8] The Claimant testified that she stopped working on March 10, 2017 and did not work from March 13, 2017, to March 17, 2017. She was laid off for her school’s March break. The Claimant applied for EI benefits for that week. The application was made on March 21, 2017. The Commission said the Claimant made a renewal application, which means that the Claimant had previously applied for EI benefits and was eligible to receive benefits from that claim.

[9] The Commission says that because the claim the Claimant renewed in March 2017 began in 2016, she was required to serve a two-week waiting period. It says that the two-week waiting period was served from March 12, 2017, to March 25, 2017. The Commission asked the Claimant’s employer for payroll information and was told the Claimant was paid $809.17 for the week beginning March 19, 2017, which the employer said was pay period 9 on the Record of Employment (ROE).

[10] The Claimant testified that she is paid bi-weekly on Friday for the two weeks prior to the current bi-weekly pay period. The Claimant provided a copy of her bank statement showing that she was paid $1,271.76 on March 17, 2017. She explained that the amount she received on March 17, 2017, was for the two weeks she worked from February 20, 2017, to March 3, 2017. The Claimant’s bank statement shows that she was paid $692.34 on March 31, 2017. She explained that amount was for the week of March 6, 2017, to March 10, 2017. She was not paid for the week of March 13, 2017 to March 17, 2017, because she did not work during that week. The Claimant returned to work on March 20, 2017. The Claimant testified that on April 13, 2017, she was paid $1,262.25 for the two weeks she worked from March 20, 2017 to March 31, 2017.

[11] I find that the Commission has not correctly allocated the Claimant’s earnings during the waiting period. The law says that earnings that are payable to a claimant under a contract of employment for the performance of services shall be allocated to the period in which the services were performed.^{Footnote 4} The Commission said the Claimant had earnings of $809.17 for the week commencing March 19, 2017. It says the employer confirmed this amount was paid during that week and referenced pay period 9 on the ROE. The ROE shows that the Claimant was paid bi-weekly. Her final pay period ending date was July 7, 2017. This means that pay period 9 was paid on March 17, 2019. The Claimant’s bank statement taken together with her evidence and the information in the ROE tells me the Claimant’s earnings of $809.17 were for services she performed during the week of March 6, 2017, to March 10, 2017, the week prior to her lay off. She did not receive any earnings during the week of March 12, 2018 to March 18, 2017. Therefore, there are no earnings to allocate to the first week of the waiting period.

[12] I note from the Claimant’s testimony that she did return to work on March 20, 2017, which was the second week of her waiting period. The Claimant had earnings during that week as established by her testimony, her bank statement and the ROE. That evidence tells me she was paid on April 14, 2017, for work performed during the weeks of March 20, 2017, to March 31, 2017. The ROE shows that in pay period 7, the Claimant was paid $1,608.40, for two weeks’ work.

[13] For claims established prior to January 1, 2017, claimants served a two-week waiting period. A claimant does not receive EI benefits during the waiting period even though the claimant might otherwise be eligible for EI benefits. The courts have compared the waiting period to the deductible in a private insurance contract. The purpose of the waiting period is to eliminate short-term claims for very brief periods of unemployment and to allow for effective verification of claims to determine if a person is really unemployed rather than laid off for a few days.^{Footnote 5}

[14] The law says a claimant can have earnings during the waiting period. When that happens, the earnings are deducted from the first three weeks of the claimant’s EI benefits.^{Footnote 6} The most that can be deducted in one week is an amount equal to the weekly EI benefits.^{Footnote 7}

[15] In this case, the Claimant’s two-week waiting period was March 12, 2017 to March 25, 2017. The Claimant began to receive EI benefits on July 2, 2020. She received EI benefits at the rate of $434 per week.

[16] The evidence tells me that the Claimant had earnings during the second week of her waiting period, March 19, 2017 to March 25, 2017. She received those earnings on April 14, 2017. As a result, the earnings the Claimant received for the week of March 19, 2017, to March 25, 2017, should be allocated to (deducted from) her EI benefits beginning on July 2, 2017.

[17] It is not within my jurisdiction to determine the amount of earnings the Claimant had during the week of March 19, 2017, to March 25 2017. Decisions on earnings are made by the Canada Revenue Agency.^{Footnote 8} The Commission is directed to confirm the amount of earnings the Claimant had from March 19, 2017, to March 25, 2017, and allocate that amount to the Claimant’s EI benefits in accordance with the law as explained above.

Conclusion

[18] The appeal is allowed in part.

[19] The Commission did not correctly allocate the Claimant’s earnings during her waiting period because it allocated earnings from a week that was not within the waiting period.

[20] The Commission is directed to determine the Claimant’s earnings for the week of March 19, 2017 to March 25, 2017, and to allocate those earnings to the Claimant’s EI benefits in accordance with the law.

[21] This means that the overpayment remains but may be changed when the correct week of earnings in allocated.