Employment Insurance (EI)

Decision

[1] The appeal is dismissed, but I am changing the original decision. The Appellant received earnings. The Canada Employment Insurance Commission (Commission) was right to allocate the earnings, but the way it allocated them wasn’t correct.

Overview

[2] The law says that all earnings have to be allocated to certain weeks. What weeks earnings are allocated to depends on why you received the earnings.^{Footnote 1}

[3] The Appellant started an EI sickness claim in November 2023. She returned to work, but lost her job in September 2024.

[4] The Appellant got some money from her former employer upon the separation from her employment.

[5] The Commission decided that the money is “earnings” under the law because it represented vacation pay and severance pay.

[6] The Commission allocated $45,935, representing $188 in vacation pay, and $45,747 in severance pay.^{Footnote 2} It started the allocation the week of September 22, 2024, at her normal weekly earnings of $1,154.^{Footnote 3} It didn’t allocate a payment of $9,000 that was also paid upon separation.

[7] The Appellant appealed that decision to the General Division of the Tribunal.

[8] The General Division dismissed the Appellant’s appeal but made changes to the allocation.

[9] The Appellant appealed the General Division’s decision to the Appeal Division.

[10] The Appeal Division allowed the appeal based on procedural fairness.

[11] And that is how this appeal has come before me.

[12] The Commission says that upon further investigation, the Appellant had earnings of $54,935.04. It says this amount should be allocated at $1,462.09 per week, starting September 22, 2024.^{Footnote 4}

[13] The Appellant disagrees with the amount of earnings. She says she didn’t receive that much because of deductions, and what she did get went to pay debt.

[14] The Appellant also says that I must take her personal financial circumstances into account. For example, I should recognize that the money she received was gone before it reached her hands.

Matter I have to consider first

I accepted documents sent in after the hearing

[15] I scheduled a case conference but due to a mistake in the invitation, the Appellant and the Commission’s representative attended at different times. So, I asked the Commission’s representative to attend the hearing, which she did.

[16] At the hearing, I asked the Commission some questions about its proposed allocation, especially for the first week. The Commission requested time to answer my question. I agreed to accept its response after the hearing. I told the Appellant that the Commission’s response would be sent to her. I told her that she would have a day to review the Commission’s response. But if she needed more time, she only had to let the Tribunal know.

[17] I received the Commission’s response (RGD09) on July 16, 2025. And the Tribunal sent a copy to the Appellant by email later the same day.

[18] I waited three whole business days. The Appellant didn’t ask for more time to review RGD09, and she didn’t provide a written response. So, I proceeded to make my decision.

Issues

[19] I must decide:

• What money counts as earnings and the amount of those earnings
• How those earnings get allocated to weeks
• What were the Appellant’s normal weekly earnings
• How much she earned in her last week of work

[20] I am also going to look at the benefit period commencement date and the benefit period extension because these issues came up in the earlier proceedings. The parties had a chance to explain their positions on these additional matters.

Analysis

How much did the Appellant receive in earnings?

[21] I find that the Appellant received $54,935 in earnings.^{Footnote 5}

[22] These amounts are all earnings because they represent income paid to her by her former employer.

[23] The law says that earnings are the entire income that you get from any employment.^{Footnote 9} This includes vacation pay. Case law says that severance pay is earnings.^{Footnote 10}

[24] So, the Appellant’s earnings of $54,935 must be allocated to weeks. I’ll explain how the earnings are allocated below.

Incentive bonus

[25] The Appellant also received a performance or incentive bonus. This money is earnings, but it isn’t allocated to the period under appeal.^{Footnote 11} These types of bonuses are allocated to the period when the work was performed.

I can’t consider her personal financial circumstances

[26] The total earnings of $54,935 must be allocated no matter how the Appellant used it. The law doesn’t let me consider what she needed the money for.

The allocation of earnings

[27] The law says that earnings must be allocated to certain weeks. What weeks earnings are allocated to depends on why you received the earnings.^{Footnote 12}

[28] The $54,935 was paid to the Appellant because she was separated from her employment. There is no dispute about this.

[29] The law says that the earnings you get for being separated from your job have to be allocated starting the week of separation. It doesn’t matter when you actually receive those earnings.^{Footnote 13} So, even the amount paid in January 2025 is allocated starting the week of separation.

The week of separation

[30] The Appellant’s last day of work was September 27, 2024. This means that her week of separation is the week of September 22, 2024. There is no dispute about this.

Normal weekly earnings

[31] The Commission says that the Appellant’s normal weekly earnings are $1,462.09.^{Footnote 14} This amount is higher than originally determined because it now includes her regular performance bonus.

[32] The Appellant didn’t dispute the amount of $1,462.09, but she pointed out that the bonus she received was different every year.

[33] Since the Appellant hasn’t said that her normal weekly earnings should be a different amount, I accept the Commission’s determination as fact.^{Footnote 15}

Earnings in last week of work

[34] Since only an amount up to the Appellant’s normal weekly earnings can be allocated to a week, I must determine how much she earned in her last week of work, the week of September 22, 2024.^{Footnote 16}

[35] Recently the employer told the Commission that the Appellant had earnings of $1,004.09 in her last week of work.^{Footnote 17} The Appellant doesn’t dispute this. At the hearing, she agreed that she took vacation and sick time during her last week of work. She didn’t say that her earnings were other than what the employer told the Commission.

[36] I accept as fact that the Appellant’s earnings in her last week of work were $1,004 (rounded to the nearest dollar). The Appellant didn’t say her earnings were a different amount and I see nothing in the file to call this into question.

The allocation

[37] Based on these findings, the Appellant’s earnings are allocated as shown on the next page.

[38] Only $458 is allocated to the week of separation. The most that can be allocated in any week is the amount of her normal weekly earnings from that employment. So, I deducted the amount she earned in her last week ($1,004) from her normal weekly earnings ($1,462) to determine how much could still be allocated to that first week.

[39] The amount of $383 is allocated to the last week, June 15, 2025, because that is the amount left over after allocating an amount equal to her normal weekly earnings in the previous weeks.

[40] I have allocated only whole dollars because the Employment Insurance Regulations say that earnings are rounded to the nearest dollar.^{Footnote 18}

Benefit period commencement

[41] The Commission started the Appellant’s benefit period on September 29, 2024. It says that is the best date for her to start her benefit period because it gives her the benefit of all her insurable hours. Starting the benefit period a week earlier would reduce the total weeks of entitlement.^{Footnote 19}

[42] The Commission explained its position in RGD9, which was sent to the Appellant.

[43] The Appellant didn’t provide any arguments about when her benefit period should start, and she hasn’t disputed anything the Commission said in RGD9.

[44] So, I accept as fact that the Appellant’s new benefit period starts on September 29, 2024.

The benefit period extension

[45] I agree with the Commission that the Appellant’s benefit period is extended by 37 weeks.

[46] When a claimant receives too much in earnings, they aren’t entitled to EI benefits.^{Footnote 20} But if those earnings are because of a separation from employment, the benefit period may be extended.

[47] A claimant’s benefit period will be extended by the total number of weeks that they aren’t entitled to benefits because they are in receipt of earnings from a complete severance of their relationship with their former employer.^{Footnote 21}

[48] The Appellant isn’t entitled to receive benefits for 37 weeks because of the money she received upon the severance of her relationship with her former employer. The amount allocated to the 37 weeks shown in the allocation table above prevents the payment of benefits.

[49] The Appellant isn’t entitled to benefits for the week of September 22, 2024, but that week doesn’t count. This is because the severance money wasn’t the only reason she wasn’t paid benefits that week. Also, that week was in a different benefit period.

[50] So, her benefit period starting September 29, 2024, is extended by 37 weeks.

Conclusion

[51] The Appellant has $54,935 in earnings. That amount is allocated at $1,462 per week (her normal weekly earnings), starting the week of September 22, 2024 (the week of separation).

[52] The Appellant has earnings in her last week of work of $1,004, so the earnings allocated to the week of September 22, 2024, are $458.

[53] Earnings of $383 are allocated to the last week, the week of June 15, 2025.

[54] The allocation is shown in table format in paragraph 37.

[55] The Appellant’s new benefit period starts on September 29, 2024.

[56] That benefit period is extended by 37 weeks.

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