Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The Tribunal disagrees with the Appellant.

[2] The Appellant’s Employment Insurance (EI) parental benefits application shows that he selected the extended parental benefits option.

[3] The Appellant argues that he selected this option based on incorrect and incomplete information from his employer and from the Canada Employment Insurance Commission (the ‘Commission’).

[4] However, for the reasons outlined below, the law simply does not allow the Appellant to change his selection to standard parental benefits.

Overview

[5] When you fill out your EI parental benefits application, you need to choose between two options: the “standard option” and the “extended option.”^{Footnote 1}

[6] The standard option pays benefits at the normal rate for up to 35 weeks. The extended option pays the same amount of benefits at a lower rate for up to 61 weeks. Overall, the amount of money stays the same. It is just stretched over a different number of weeks. Once you start receiving parental benefits, you can not change options.^{Footnote 2}

[7] On his application, the Appellant chose extended parental benefits. He started receiving benefits at the lower rate during the week of February 9, 2023^{Footnote 3}. He tried to change his selection on November 17, 2023^{Footnote 4}.

[8] The Appellant says that, prior to applying for benefits, he contacted his employer and the Commission to ask about taking two separate periods of parental leave; one period would be for 10 weeks shortly after his child was born and the second period would be for 24 weeks once was close to turning one year old. The Appellant says that both his employer and the Commission told him there would be no problem with this plan and he was free to take his parental leave in consecutive weeks or in separate periods as he wished.

[9] The Appellant did not discover that this information was wrong until he contacted his employer again close to his second period of parental leave. At that time, his employer explained to him that the Ontario Employment Standards Act (the ‘ESA’) prevents him from dividing his parental leave into two separate periods. As the Appellant’s employer is located in Ontario and is governed by the ESA, they could not permit the Appellant to divide his parental leave in the way he intended.

[10] It is for this reason that the Appellant and his spouse would like to change their choice to receive standard parental benefits instead of extended parental benefits.  

[11] The Commission says that the Appellant made his choice and it is too late to change it because he already started receiving parental benefits.

Matter I have to consider first

[12] The Appellant’s appeal, which bears Tribunal number GE-24-8, is directly related to his spouse’s appeal which bears Tribunal number GE-24-9. As these matters are related, and as both Appellants intended to provide testimony as witnesses during each other’s appeal hearings, I conducted both hearings consecutively on the same day.

[13] The Appellant for Tribunal file GE-24-8 gave his direct testimony and I gave his spouse an opportunity to provide any additional testimony as a witness to that appeal. I then heard the matter for Tribunal file GE-24-9 during which the Appellant for that appeal provided her direct testimony and I gave her spouse an opportunity to provide any additional testimony as a witness to that appeal.

[14] As these two appeals are directly related and as my decision is the same for both matters, the analysis and the prevailing caselaw will be similar for both. 

Issue

[15] Is the Appellant permitted to change his election from extended parental benefits to standard parental benefits?

Analysis

[16] When you apply for EI parental benefits, you need to choose between the standard option and the extended option.^{Footnote 5} The law says that you can not change options once the Commission starts paying parental benefits.^{Footnote 6}

The Appellant’s testimony

[17] The Appellant says that he and his spouse took 18 months of extended parental leave with their first two children and they intended to do the same for their third child who was born on December 30, 2022^{Footnote 7}. The only difference in their plan with their third child is that the Appellant would split his 34 weeks of extended parental leave into two parts. He would take the first 10 weeks shortly after the baby was born in January 2023 and end on approximately March 6, 2023. He would take the remaining 24 weeks approximately one year later from January 2024 to June 2024.

[18] The Appellant says that they had this plan in place to allow his spouse to return to work after one year, as she makes a significant income that they require in order to be financially secure. In addition, the daycare facilities in the area only take children who have learned to walk and, by taking an extended leave, the Appellant and his spouse would ensure that their child was walking confidently before being placed into daycare.

[19] The Appellant says he discussed this plan at length with his manager and with Commission staff. Both assured him and his spouse that their plan was reasonable and neither his manager nor the Commission staff suggested he do any additional research to confirm that his plan was viable.

[20] However, at some point near the end of 2023 and prior to the Appellant beginning his second period of parental leave, his work team transitioned to a new location and a new manager. When the Appellant approached this new manager about taking his second period of parental leave, the manager consulted the Human Resources department who advised him that the Ontario ESA prevents the Appellant from dividing his parental leave in the way he intended. The Appellant’s manager informed him that, as he had already taken a 10 week period of parental leave and had returned to work, he could not permit the Appellant to take a second period of parental leave. The Appellant and his spouse then contacted the Commission and attempted to change their choice to receive standard parental benefits.

[21] The Appellant says that this change in plans caused negative consequences for himself and his family. First, the Appellant’s child had to be placed in daycare sooner. This was difficult to navigate because the Appellant’s child only recently learned to walk and did not qualify for a daycare spot until shortly before the hearing. This meant a constant juggling of the Appellant’s and his spouse’s work schedules (including vacation days, shortened work weeks and other accommodations) to care for their child until she was able to be placed in daycare. Second, the Appellant sacrificed two weeks of salary top up from his employer as he only claimed 10 weeks of top up when he could have qualified for 12 weeks. Third, the Appellant and his spouse received extended parental benefits at the lower rate of 33% when they could have received standard parental benefits at a higher rate of 55%. This means that they endured a lower monthly income, and the Appellant still had to remain at work in 2024 which left 24 weeks of extended benefits unclaimed.  This financial shortfall was stressful and caused several challenges. Finally, both the Appellant and his spouse fully intended that one parent would care for their child for 18 months. The Appellant says, when this plan had to change, they missed out on precious time with their young child which they will not get back.

[22] The Appellant presented his testimony in a detailed and consistent manner and I find him to be credible. I believe the Appellant when he says he investigated his options by speaking with his manager and the Commission staff prior to going on leave. I believe the Appellant when he says that neither his manager nor the Commission ever advised him to consult his provincial employment legislation to ensure that his plan did not violate any legal authority. I believe the Appellant when he says he did not realize his plan was not feasible until November 2023 when his new manager informed him that it violated provisions of the Ontario ESA.

[23] I sympathize with the Appellant and his spouse regarding the difficulties they have experienced. The Appellant and his spouse are educated professionals who value time with their family. They both intentionally took 18 months off to care for their older two children and, through no fault of their own, they were not able to do the same for their third child. This not only had financial implications but also caused emotional consequences and mental stress for the Appellant and his family.

[24] However, regardless of how credible the Appellant is, or how deeply I may sympathize with his situation, the prevailing case law in this area is clear; individuals are not permitted to change their selection for parental benefits once it has been made.

The Variola decision

[25] The Federal Court’s case Canada (Attorney General) v Variola, 2022 FC 1402, addresses a situation that is similar to the one before me. In Variola, the Appellant gathered information from his employer prior to applying for benefits and based his selection on that information. As in the situation before me, the employer in Variola gave the Appellant incorrect information and this partially led to him making a benefit selection which created financial difficulties for him.

[26] Although the Court in Variola acknowledges that the Appellant received incorrect information from his employer, the Court found that “the Commission cannot be held responsible for information provided by an employer to their employees.”^{Footnote 8} The Court goes on to refer to another leading case and says, “the choice between the two parental benefits options made by the claimant on the application form is the claimant’s election (subsection 23(1.1)) and it is irrevocable once payments start (subsection 23(1.2)): Hull at paras 46-49.[Emphasis added]”^{Footnote 9}

[27] This case means that, regardless of whether the Appellant received incorrect or incomplete information from his employer, he is not permitted to change his choice for parental benefits once the payments have started. I have no discretion to change the law in this instance, regardless of how compelling the Appellant’s situation may be.

The Hull decision

[28] Another leading case in this area is Canada (Attorney General) v Hull, 2022 FCA 82 [Hull]. The Hull case, and the rest of the prevailing case law in this area, is clear; individuals are not permitted to change their selection once parental benefits have been paid.  

[29] The Federal Court of Appeal (FCA) conducted a detailed analysis of the law in Hull where the claimant accidently elected to receive extended parental benefits. Although the facts in Hull are somewhat different to the matter before me, the legal analysis and findings are applicable. The FCA determined that the choice made by a claimant becomes irrevocable once the parental benefits have begun to be paid^{Footnote 10}.

[30] As this decision comes from the FCA, I am bound by its findings and I have no discretion to alter those findings. This is true even if I believe the Appellant’s testimony and I sympathize with his situation. I am not permitted to make an exception to the law in this instance.

The Pettinger decision

[31] Finally, and more recently, in Canada (Attorney General) v Pettinger, 2023 FCA 51 [Pettinger], the FCA considered a situation in which the individual did not have all the information he needed to make his choice and, because of this lack of clarity, he made the wrong selection on the application form. Pettinger is similar to the case before me in which the Appellant made a mistake on his application based on incomplete information he received from his employer and the Commission.

[32] However, in Pettinger, the FCA reiterated its findings from Hull and said,

This Court has held that subsections 23(1.1) and (1.2) of the Employment Insurance Act allow for only one interpretation. The word “elect” means “what a claimant indicates as their choice on the application form” and, “once payments of those benefits have started, it is impossible for the claimant, the Commission, the General Division or the Appeal Division to revoke, alter or change the election”: Canada (Attorney General) v Hull, 2022 FCA 82 at paras. 62-64].^{Footnote 11} [Emphasis added]

[33] All of these FCA cases stand for the proposition that, regardless of any incorrect or incomplete information the Appellant may have received at the time of his application, his is bound by the election that appears on the application form and this election is irrevocable once the payment of parental benefits has begun.

[34] Although I sympathize with the Appellant’s situation before me, and I understand the financial challenges and the practical challenges this situation has caused for him and his family, I am bound by these Federal Court of Appeal cases and I am not permitted to change the law. I have no discretion to make any exceptions, regardless of how unfortunate the Appellant’s situation may be. For these reasons, I find that the Appellant is not permitted to change his selection from extended to standard parental benefits.

Conclusion

[35] The Appellant can not change his selection to standard benefits.

[36] This means that the appeal is dismissed.