Employment Insurance (EI)

Decision

[1] The appeal is allowed. The Tribunal agrees with the Appellant.

[2] The Appellant’s Employment Insurance (EI) parental benefits application does not clearly show whether she elected to receive extended parental benefits. The Appellant is therefore entitled to amend her application to clarify her election and confirm that she elected to receive standard parental benefits.

Overview

[3] 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}

[4] 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.

[5] Once you start receiving parental benefits, you can not change options.^{Footnote 2}

[6] The Appellant’s baby was born on December 15, 2022^{Footnote 3}. In her application, the Appellant checked the box to select extended parental benefits. However, she also selected “55 weeks”^{Footnote 4} and indicated that her return-to-work date would be December 27, 2023 ^{Footnote 5}. The Appellant started receiving parental benefits at the lower rate the week of April 21, 2023^{Footnote 6}.

[7] The Appellant says that, other than the checked box, her application clearly indicates that she elected to receive standard parental benefits. Both the number of weeks she chose and her predicted return-to-work date confirm her intentions to receive standard parental benefits and return to work approximately one year after her baby’s birth. The Appellant says that she accidentally checked the extended benefits box, but this does not accurately reflect her election.

[8] The Canada Employment Insurance Commission (Commission) says that the Appellant made her choice and that it is too late to change it because she has already started receiving benefits.

Matter I need to address first

[9] At the hearing, the Appellant mentioned that she had additional documents which she wished to include with her appeal. I gave the Appellant until September 29, 2023, to submit these documents to the Tribunal. Once I received these additional documents, they were forwarded to the Commission and I gave the Commission until October 27, 2023, to provide any response. To date, the Commission has failed to respond to these additional documents.

Issue

[10] Which type of parental benefits did the Appellant elect when she made her choice on the application?

Analysis

[11] When you apply for EI parental benefits, you need to choose between the standard option and the extended option.^{Footnote 7} The law says that you can not change options once the Commission starts paying parental benefits.^{Footnote 8}

[12] The prevailing Federal Court Caselaw in this regard is Canada (Attorney General) v Hull 2022 FCA 82. In this decision, the Court gives a detailed analysis explaining why an individual is not permitted to change their election regarding standard or extended parental benefits once they have started to receive parental benefits payments. However, for the following reasons, I find that the situation before me can be distinguished from Hull both on its facts and based on the Court’s own analysis.

The facts are different than Hull

[13] There are two key facts in the situation before me that are different than the facts contained in the Hull decision. First, the Appellant before me did not delay nine months (as the Appellant did in Hull) before contacting the Commission to clarify her election. As will be shown below, this fact supports my finding that the Appellant did not actually choose the extended parental benefits option, but instead chose the standard benefit option.

[14] The second distinguishing fact is that the Appellant in Hull described herself as being “confused” by the information on the application form.^{Footnote 9} In contrast, the Appellant before me works as a paralegal and is familiar with legal forms and applications. Also, the Appellant has an older child for which she took one year of leave from work. This means she has completed an EI application in the past and is familiar with the EI application process for maternity and parental benefits. In short, there is no evidence before me that the Appellant was confused by the application process or misunderstood the difference between standard and extended parental benefits.

[15] The reality here is that the Appellant accidentally selected the extended benefits option. However, she indicates in her application that she intends to take 55 weeks off and also indicates that her return-to-work date is approximately 55 weeks after her baby’s birth^{Footnote 10}. This is not a situation where the Appellant changed her mind, or received incorrect information from the Commission, or received incorrect information from her employer, or was confused by the application process. Instead, the Appellant understood the process, understood the form, provided accurate information, but then accidentally checked the wrong box. It is for these reasons that the case before me is distinguished from the facts in Hull.

The Court’s analysis

[16] In the Hull decision, the Court divides its analysis into three topics in order to give definitive guidance regarding when/if an individual is permitted to change their election for parental benefits^{Footnote 11}. The Court’s analysis is divided into a discussion of the text of the Act, the context and purpose of the application process, and the purpose of this particular area of the legislation. I will address each of these topics in the following.

a) The text of the Act

[17] In Hull, the Court engages in a statutory interpretation analysis, beginning with a discussion of the plain meaning of the term “elect” in the legislation. The Court says:

“The interpretation of the term “elect” is what is at issue. It is not defined in the EI Act. According to the Oxford English Dictionary (Online: https://www.oed.com”, the ordinary meaning of the verb “elect” is “to pick our, choose…to make a deliberate choice…”. The ordinary meaning of the mound “election” is the act of choosing; the exercise of a deliberate choice or preference.” [Emphasis added]

[18] While I agree with the Court’s analysis here, I would also say that it is this very analysis which leads me to find that the Appellant before me did not “elect” to receive extended parental benefits. This is specifically because she did not make a “deliberate choice”. There are several clues that support this assertion. First, the contents of the Appellant’s application form suggest that she did not make a deliberate choice to select extended parental benefits. The Appellant’s return to work date is clearly identified on the application form as December 27, 2023^{Footnote 12}, which is approximately 55 weeks from the date of her baby’s birth on December 15, 2022; this suggests that she did not deliberately choose to take an extended period of time off or receive extended parental benefits. Similarly, the Appellant selected “55 weeks” in her application form. This period of time coincides directly with her expected return-to-work date which supports my finding that she did not deliberately choose to receive extended parental benefits. Therefore, based on the contents of the Appellant’s application form, it cannot be said that she deliberately chose, or elected, to receive extended parental benefits. Instead, she deliberately chose to receive standard parental benefits, but accidentally checked off the wrong box on the application form.

[19] In this same portion of its statutory interpretation analysis, the Court in Hull goes on to say:

“Here, the ordinary meaning of the text of subsection 23(1.1) supports the position that what the respondent elected was what the responded chose in her application form, ie. the extended parental benefits for the precise number of 52 weeks. By choosing this option, she informed the Commission of her choice of extended parental benefits, without anything to indicate that this was not her deliberate choice.” [Emphasis added]

[20] This is another aspect of Hull that can be distinguished from the matter before me. While it is true that the Appellant in Hull gave no other indicia or clues to suggest that she was selecting anything other than extended parental benefits, that is not the case in the matter before me. The Appellant before me clearly indicated in her application that her return-to-work date was December 27, 2023, and the number of weeks she selected (55) corresponds with that date. Unlike in Hull, these are indications that the Appellant did not deliberately choose extended parental benefits. Instead, she attempted to choose standard parental benefits, but accidentally checked the wrong box on one part of the application form. Not only can this set of facts be distinguished from Hull, but the analysis in Hull suggests that if there IS any indication that a Claimant’s election is not deliberate, the Commission has an obligation to investigate that with the Claimant and ensure that their election is a deliberate choice. The Commission’s role in this regard will be discussed further below.

b) The context and purpose of the application process

[21] In Hull, the Court moves next to an analysis of the context of the EI system generally and the parental benefits application process specifically. In its decision, the Court says:

“The process of applying for parental benefits is also important to consider for context…subsection 48(2) further specifies that the Claimant must supply the information in the form and manner directed by the Commission. Once again, the respondent must provide her employment circumstances and other circumstances pertaining to her interruption in earnings in accordance with the form provided by the Commission There is nothing confusing in this process. The language is mandatory. The onus is on the respondent and she is required to provide the information because only she knows of her circumstances. The Commission will review the application only once the relevant information is provided and the form is completed, again, including the election of the specific parental benefit and the number of weeks.”^{Footnote 13} [Emphasis added.]

[22] The Court is correct here; an examination of the application process is crucial to understand the context in which the Commission makes its decision. In fact, the Court makes an important observation that only the Appellant has full knowledge of her circumstances and only the Appellant can provide the information the Commission requires in order to make its decision. However, the Court’s comments imply that, because a Claimant possesses all of the required information, the Commission must effectively review the complete application form to evaluate the Claimant’s intentions and determine their election.

[23] In the matter before me, this means that the Commission was required to review all of the information in the application form including the Appellant’s return-to-work date, the number of weeks requested and the box regarding standard vs extended parental benefits. It would create a procedural absurdity if the Appellant were required to provide all of these details regarding her circumstances, but the Commission was only required to consider one small piece of that information on one checked box to the exclusion of all the other information the Appellant provided. If this were the case, the application form would essentially be comprised of numerous irrelevant questions and a Claimant would be required to provide several irrelevant details, all because the focus of the Commission’s review would be narrowed to one small portion of the application. Based on the application process and the context of the Commission’s decision-making, this absurdity can not be what the legislature intended when it drafted subsection 48(2). Instead, it is incumbent upon the Commission to review the entire application to completely ascertain the Appellant’s circumstances and determine whether the election fits with the rest of the information provided.

[24] Furthermore, subsection 48(2) requires a Claimant to provide “such other information as the Commission may require”. This suggests that the Commission can and should ask questions during the initial decision-making process. If, for example, a checked box on the application conflicts with other information a Claimant provides, it is incumbent upon the Commission to ask for more information and not simply rely on the checked box as confirmation of the Claimant’s election. This implied portion of the process is crucial and failing to adhere to this portion of the process in the matter before me resulted in negative consequences for the Appellant.

[25] Finally, when a Claimant is applying for other EI benefits, it is widely understood that the Commission routinely contacts those Claimants to request additional information and gather additional facts before making their initial entitlement decision. To suggest that a similar information-gathering portion of the decision-making process is not required regarding Claimants for parental benefits is creates a legal absurdity at best, and at worst this practice could be considered discriminatory based on a person’s family status and/or gender. In the matter before me, the Appellant’s election clearly conflicts with her return-to-work date and the number of weeks she selected. For the reasons already stated, and based on the reasoning outlined in Hull, this should have prompted the Commission to ask additional questions before determining that the Appellant elected to receive extended parental benefits. For all of these reasons, I find that the Appellant did not elect to receive extended parental benefits but chose instead to receive standard parental benefits and she should be permitted to amend her application to reflect this election.

c) Purpose of the legislation

[26] The final portion of the Court’s analysis in Hull is a discussion of the purpose of subsections 23(1.1) and (1.2) of the EI Act. These sections prohibit a Claimant from changing their election once they begin to receive parental benefits. The Court says:

“The purpose of irrevocability allows certainty for Service Canada, certainty for the other spouse who may have also applied for benefits, certainty for the Claimant’s employer and I would add certainty for the spouse’s employer. All of these parties may be affected by the Claimant’s election once benefit payments have started….these other parties are equally deserving of certainty and efficiency in their financial planning.^{Footnote 14}” [Emphasis added]

[27] While I agree with the Court, I would add to these comments by saying that this principle of certainty for all parties is completely lost when a Claimant is held to a mistake on their application form. This is true in the matter before me, prior to her taking maternity leave from work, the Appellant’s employer was fully aware that she was returning to work within one year of giving birth and they made staffing decisions based on the Appellant’s intentions.

[28] After the hearing, and with my permission, the Appellant provided ample proof of this by submitting correspondence between herself and her employer dated November 14, 2022.^{Footnote 15}. This letter is between the Appellant and her employer’s Human Resources Analyst and states, “expected return from leave – December 27, 2023”. The corresponding tables and the attached appendix all confirm that the Appellant was expecting to return to work on December 27, 2023, and she elected to extend her health benefit coverage up until that date.

[29] This correspondence between the Appellant and her Employer confirms that all of the parties involved planned for the Appellant to return to work during on December 27, 2023, and this corresponds directly with the return-to-work date the Appellant included in her application form.

[30] The Court in Hull is correct that the purpose of irrevocability is to ensure certainty for all the parties involved. However, in this instance, that certainty was thwarted because the Commission failed to properly investigate and confirm the Appellant’s election. Even though the Appellant checked the box indicating extended parental benefits, the other information she included in the application form as well as the correspondence she had with her employer establish that this box does not reflect her deliberate choice and was instead an accident. While I agree with the Court regarding the importance of certainty throughout this benefit process, I would also note that, when the Commission fails to properly identify a Claimant’s election during the application process, this creates the very uncertainty that the Court is trying to avoid.

[31] For all of these reasons, I find that the Appellant did not make a deliberate choice to receive extended parental benefits. Instead, she provided multiple pieces of information in her application form which indicate she intended to take approximately one year of leave and then accidentally checked the box which indicated otherwise. The Appellant should not be held to this election as it did not represent her deliberate choice and was not a valid election for benefits. Instead, the Commission should have reviewed all of the information the Appellant provided and then asked questions to clarify the Appellant’s choice regarding her benefits. As the Commission failed in this regard, the Appellant should now be permitted to amend her application to reflect her true election for standard parental benefits.

d) Additional information

[32] For the sake of completeness, I have also turned my mind to the issue of why the Appellant delayed contacting the Commission for about 5 weeks after she began receiving extended parental benefits. As mentioned above, this issue is important and was considered in Hull because the Claimant in that case waited almost 9 months before contacting the Commission to change her election. The Court in Hull suggested that this 9-month delay confirmed that the Claimant was confused by the application and she was therefore prevented from changing her election simply because she was confused^{Footnote 16}.

[33] In the matter before me, the Appellant began receiving extended parental benefits on April 21, 2023^{Footnote 17}, and she contacted the Commission on May 30, 2023^{Footnote 18}. The Appellant says this short delay does not indicate that she was confused by the application process or by the benefit payments, but it was instead because she was busy looking after her baby and she believed the Commission had made a mistake in administering her benefits. At the hearing, the Appellant explained that, once she noticed that she was receiving lesser benefits, she fully intended to contact the Commission but was busy looking after her 5 month-old baby. Also, the Appellant assumed that the Commission had made an administrative error regarding her benefits and she intentionally waited a few weeks to give the Commission time to correct its mistake. When the Appellant did contact the Commission, it was because she realized she had accidentally checked the wrong box regarding the standard vs extended benefit election and she requested an amendment to her application. At the hearing, the Appellant provided detailed and consistent testimony regarding the short delay in contacting the Commission and I have no reason to disbelieve her regarding her reasons for the short delay.

[34] This is yet another example of how the matter before me can be distinguished from the facts in Hull. The Appellant did not delay months before contacting the Commission. Instead, the Appellant waited a few weeks because she was understandably busy caring for her baby and she believed the Commission would correct its error without her needing to contact them. This supports the Appellant’s position that she was not confused by the application or the process but instead checked an incorrect box by accident.

[35] Based on the evidence before me and my analysis of the prevailing caselaw, I find that the Appellant did not deliberately elect to receive extended parental benefits and she should be permitted to amend her application to accurately reflect her true election for standard parental benefits.

Conclusion

[36] Based on the evidence before me, I am not satisfied that the Appellant deliberately elected to receive extended parental benefits. Instead, the Appellant chose standard parental benefits.

[37] This means that the appeal is allowed.