Employment Insurance (EI)

Decision

[1] The appeal is allowed.

[2] The Appellant has enough hours to qualify for Employment Insurance (EI) benefits.

Overview

[3] The Appellant filed an application (claim) for EI sickness benefits because she was sick with Covid. Then she felt better, so she went back to work.

[4] Her job was seasonal. When the season ended, she was laid off. She told the Commission she no longer wanted to proceed with her claim for sickness benefits. She says she made a new claim for regular benefits instead.^{Footnote 1}

[5] The Canada Employment Insurance Commission (Commission) says it never received a new claim for regular benefits. It decided that for the original claim the Appellant hadn’t worked enough hours to qualify for benefits.^{Footnote 2} But in appeal, it now says it didn’t use the right qualifying period.^{Footnote 3} It says it’s possible that the Appellant qualifies for benefits if the claim is established at a different date than the one it used.

[6] The Appellant says her claim should be established from the time she stopped work for the season. She argues that if she is given credit for the period when she was sick with Covid, she has enough hours to qualify for benefits.

[7] I have to decide what the correct qualifying period is. Then I have to decide whether the Appellant has worked enough hours to qualify for EI benefits during that period.

Matters I have to consider first

The Appellant wasn’t at the hearing

[8] The hearing began on the date and at the time it had been scheduled, but the Appellant wasn’t present. I asked the Tribunal’s registry office to try to contact her, but it was unable to reach her. I waited for her for 30 minutes, but she never joined the videoconference.

[9] A hearing can go ahead without the Appellant if the Appellant got the notice of hearing.^{Footnote 4} Based on the record, I conclude that the Appellant got the notice of hearing. I have come to this conclusion because:

• she authorized the Tribunal to communicate with her by email
• the notice of hearing was sent to the email address she provided
• the Tribunal contacted her by phone prior to the hearing, and she confirmed that she had received the notice of hearing and would be present

[10] So, the hearing took place when it was scheduled, but without the Appellant.

[11] Nine days after the hearing took place, the Appellant contacted the Tribunal to advise that she didn’t have cellular service on the day of the hearing. However, she didn’t ask for the hearing to be rescheduled.

[12] Since I’m allowing the appeal, I see no fairness considerations which would require me to reschedule the hearing in the circumstances. And, the Appellant never asked for the hearing to be rescheduled even though she wasn’t able to attend.

The Tribunal asked the Commission for more information

[13] After the hearing, I decided I needed further information from the Commission to decide the appeal. I asked it to determine if the Appellant has enough hours to qualify for benefits on three different dates.^{Footnote 5}

[14] In response, the Commission provided Supplementary Representations (in other words, answers), which have been labelled GD6. These now form part of the record. The Supplementary Representations were sent to the Appellant.

Issues

[15] What is the Appellant’s qualifying period?

[16] Has the Appellant worked enough hours during that period to qualify for EI benefits?

Analysis

Qualifying for benefits

[17] Not everyone who stops work can receive EI benefits. You have to prove that you qualify for benefits.^{Footnote 6} The Appellant has to prove this on a balance of probabilities. This means she has to show that it’s more likely than not that she qualifies for benefits.

[18] To qualify, you need to have worked enough hours within a certain timeframe. This timeframe is called the qualifying period.^{Footnote 7}

[19] In general, the qualifying period is the 52 weeks before your benefit period would start.^{Footnote 8} But, it can be extended or shortened in certain cases. One of those cases is when you are sick and unable to work.^{Footnote 9}

[20] Your benefit period isn’t the same thing as your qualifying period. Your benefit period is the time during which you can receive EI benefits. However, the beginning of the benefit period marks the date from which the Commission counts back to establish the qualifying period.

[21] The number of hours you need during the qualifying period usually depends on the unemployment rate in your region.^{Footnote 10} Depending on where you live, you normally need between 420 and 700 hours to qualify for regular benefits. If you claim sickness benefits, you only need 600 hours if you don’t have enough hours to qualify for regular benefits.^{Footnote 11}

[22] However, during the pandemic, the federal government introduced a law to make it easier for claimants to get benefits. For EI claims made between September 26, 2021, and September 24, 2022, an entrance requirement of 420 hours was put in place for most claims, including claims for regular benefits and sickness benefits, regardless of where you live and what the rate of unemployment was in your region.^{Footnote 12}

The Appellant’s qualifying period

[23] The Commission originally decided that the Appellant’s qualifying period was 52 weeks, and that it began on October 3, 2021.^{Footnote 13} But, in its arguments, it says that this was a mistake.^{Footnote 14}

[24] I need to decide when the Appellant’s benefit period began so that I can determine what her qualifying period was.

When did the Appellant’s benefit period begin?

[25] The Appellant filed a claim for sickness benefits on August 4, 2022.

[26] She says that on September 22, 2022, she filed a new claim for regular benefits. But, the Commission says it has no record of a new claim for regular benefits.

[27] Since the Appellant wasn’t at the hearing, I wasn’t able to obtain more information about the claim she says she made on September 22, 2022.

[28] However, from the evidence in the record, it’s clear that the Appellant asked the Commission to treat her claim as a claim for regular benefits rather than as a claim for sickness benefits. She repeated this in her reconsideration request and in her notice of appeal.^{Footnote 15}

[29] It also appears that the Appellant didn’t have an interruption of earnings until after September 15, 2022.  She says that this was the last day that she worked. She didn’t go into work during the last two weeks of September because she had to prepare for a medical procedure and couldn’t work.

[30] According to the revised record of employment (ROE) from X, she continued to earn income until September 30, 2022.^{Footnote 16} However, the Appellant says this is because she only put in her timesheet for the period ending September 15, 2022, on September 30, 2022.

[31] From all of the evidence, I conclude that the Appellant’s interruption of earning occurred the week beginning Sunday, September 18, 2022. I believe that it was during that week that the Appellant realized she would not be returning to work before the end of the season. That would explain why she contacted the Commission on September 22, 2022, to change her claim from a claim for sickness benefits to a claim for regular benefits.

[32] The law says that a claimant’s benefit period begins the later of the Sunday of the week a claim is made, and the Sunday of the week there is an interruption of earnings.

[33] Having decided that the Appellant’s interruption of earnings occurred during the week beginning September 18, 2022, I find that this is the date that her benefit period begins. This is because it is the later of those two dates.

What is the Appellant’s qualifying period?

[34] As mentioned above, the beginning of the benefit period marks the date you have to count back from to establish the qualifying period. The qualifying period is usually 52 weeks, but it can be shortened or extended in certain circumstances. The law provides that a claimant’s qualifying period is extended by the period they can prove they were incapable of working because they were ill, injured, quarantined, or pregnant.^{Footnote 17}

[35] The Appellant says she contracted Covid in July 2022. In her claim for sickness benefits, she said she was sick and unable to work from July 13, 2022, to August 4, 2022. In her request for reconsideration, she says she was off work from the last week of July 2022 until the end of August 2022. 

[36] Since the evidence of when the Appellant was sick isn’t consistent, I’m going to rely on what she said in her claim for sickness benefits. That claim was made at a time that was closest to the period the Appellant was sick. I think it’s more reliable than her later recollection of the dates she was sick. And, in the claim she attests to the fact that the information it contains is true. So, I find that she was sick and unable to work from July 13, 2022, to August 4, 2022.

[37] The Commission says it has to do further fact finding regarding the period the Appellant claims to have been ill and unable to work. This is because the revised ROE from X indicates that the Appellant received earnings in the pay period from July 16 to July 31, 2022, when she claims to have been sick and off work.

[38] I can only decide this appeal based on the evidence that I have. That evidence convinces me that the Appellant was sick and unable to work from July 13, 2022, to August 4, 2022. The Appellant said she submitted her time for the period prior to September 15, 2022, after that date. I conclude that she likely did the same with respect to her time prior to July 13, 2022. This explains why she would have had income in the period from July 16 to July 31, 2022.

[39] Since I have decided that the Appellant’s benefit period started on September 18, 2022, that is the date I will count back from.

[40] Because the Appellant was sick and unable to work during three weeks of her qualifying period, I find that the Appellant’s qualifying period should be extended by three weeks.

[41] Counting back 55 weeks from September 18, 2022, I find that the Appellant’s qualifying period began on August 29, 2021, and ended on September 17, 2022.

The hours the Appellant worked

[42] I asked the Commission to determine whether the Appellant has sufficient hours to qualify for benefits using September 18, 2022, as the start date of her benefit period.

[43] Its preliminary conclusion is that she has 425 hours from August 29, 2021, to September 17, 2022.

[44] Because her claim was made during the period where the universal 420-hour requirement was in effect, this means she has enough hours to qualify for benefits.

[45] The Appellant has produced three ROEs in support of her appeal.^{Footnote 18}

[46] From my review of these ROEs, I see no evidence that would lead me to believe that the Commission’s calculation isn’t correct. So, I accept as fact that the Appellant has 425 hours during her qualifying period.

[47] As I mentioned, above, the Commission says it may have to do further fact finding to understand why the Appellant received income during the July 16 to July 31, 2022, pay period. This is because she claims to have been sick and unable to work from July 13 to August 4, 2022. However, the evidence is to the effect that the Appellant had to submit a record of her time in order to be paid. So, I conclude that the period in which she was paid didn’t always correspond to the period that she worked.

[48] Based on my assessment of the evidence in the record, I’m satisfied that the Appellant has enough hours to qualify for benefits.

Conclusion

[49] The Appellant has enough hours to qualify for benefits.

[50] This means that the appeal is allowed.