Employment Insurance (EI)

Decision

[1] I am dismissing the Appellant’s appeal, but I am also changing the allocation amounts. The Canada Employment Insurance Commission (Commission) allocated the Appellant’s fishing earnings to the correct weeks, but the amount allocated to each week is incorrect.

Overview

[2] This appeal is about how the Commission allocated the Appellant’s earnings from fishing.

[3] The Appellant is a fisher. He earned $12,547.99 during a fishing trip from May 21, 2022, to May 27, 2022.

[4] The Employment Insurance Fishing Regulations (Fishing Regulations) say that earnings from a catch consisting of fish other than cured fish must be allocated equally to each day of the fishing trip.^{Footnote 1}

[5] The Commission decided to allocate the Appellant’s earnings over a two-week period. It allocated $2,510 to the week of May 15, 2022, and $10,038 to the week of May 22, 2022.^{Footnote 2}

[6] The onus is on the Appellant to prove that the Commission’s allocation is incorrect.^{Footnote 3}

[7] The Appellant disagrees with the Commission’s allocation. The Appellant says that he didn’t have any earnings the week beginning May 15, 2022. He says he received one cheque for the week ending May 28, 2022, so all his earnings should be allocated to that week.

Issue

[8] Did the Commission allocate the Appellant’s earnings to the correct weeks in the right amounts?

Analysis

[9] The Appellant earned $12,547.99 during a fishing trip he went on in May 2022. There is no dispute these are fishing earnings under the Fishing Regulations.^{Footnote 4} So, under the Fishing Regulations, these earnings must be allocated.^{Footnote 5}

[10] The Fishing Regulations say that fishing earnings from a catch consisting of fish other than cured fish must be allocated equally to each day of the fishing trip.^{Footnote 6}

[11] I accept that the Appellant’s earnings relate to a catch other than cured fish because I see no evidence in the file that the catch consisted of cured fish.

[12] I find that the Appellant’s fishing trip started on May 21, 2022, and ended on May 27, 2022. This is what the record of employment shows, and the employer confirmed the dates with the Commission.^{Footnote 7}

[13] So, by law, one-seventh of the earnings must be allocated to each day of the seven-day trip.

[14] The Appellant earned $12,547.99 but the total earnings to be allocated is $12,548 because earnings are rounded to the nearest dollar.^{Footnote 8}

[15] The Employment Insurance Act (EI Act) says that a “week” is a period of seven consecutive days beginning on and including Sunday.^{Footnote 9}

[16] Since the Appellant’s fishing trip started on Saturday, May 21, 2022, and lasted for seven days, his earnings span two weeks.

[17] So, I find that the Appellant’s earnings are allocated as follows:

[18] The total amount allocated to the week of May 15, 2022, is $1,793, and the total amount allocated to the week of May 22, 2022, is $10,755.

[19] The Appellant says that all his earnings should be allocated to the week of May 22, 2022, because his paystub shows that his earnings were for the week ending May 28, 2022.^{Footnote 11} The week ending on May 28, 2022, is the week of May 22, 2022.

[20] But allocating his earnings that way ignores the clear instructions in the Fishing Regulations. Further, it doesn’t take into account that the fishing trip started on Saturday, May 21, 2022, and although the fishing trip only lasted seven days, those seven days are in two different EI weeks.

[21] The Appellant says he only received one cheque. How many cheques he received isn’t relevant to when the earnings are allocated.

[22] The Commission allocated $2,510 to the week of May 15, 2022, and $10,038 to the week of May 22, 2022. It based its allocation on the Appellant’s earnings per week as reported by the employer.^{Footnote 12} This allocation isn’t correct because it ignores the allocation method set out in the Fishing Regulations.

[23] The Commission suggested that I consider how many days he worked during the fishing trip. Doing this would be a mistake because the allocation isn’t based on how many days he worked, it is based on the date and duration of the fishing trip.

Overpayment

[24] According to the Commission’s Overpayment Breakdown, despite my changes to the amounts allocated to the week of May 15, 2022, and May 22, 2022, benefits are still not payable to the Appellant for these weeks.^{Footnote 13} The Appellant has been overpaid benefits because the Commission paid him benefits for those two weeks. The Appellant must repay the overpayment.^{Footnote 14}

Conclusion

[25] The Appellant received $12,548 in fishing earnings. These earnings are allocated as set out in paragraphs 17 and 18 above.

[26] This means that the appeal is dismissed with modification.