Employment Insurance: Faqs
January 18th, 2010
Please note this document is meant to replace the CPP Disability FAQ sent out via e-mail on November 17th, 2009. Should you have any questions about this document please do not hesitate to contact Andrew Waugh at the Halifax North Office at 420-3450.
Employment Insurance: FAQs
1. Q: What legislation governs Employment Insurance?
A: The Employment Insurance Act.
2. Q: What benefits are available under the Employment Insurance Act?
A: There are 5 types of EI benefits, being:
a. regular;
b. re-employment;
c. sickness;
d. compassionate care; and
e. pregnancy and parental.
These FAQs deal with regular EI benefits.
3. Q: How does someone apply for EI benefits?
A: An application can be started online at http://www100.hrdc-drhc.gc.ca/ae-ei/dem-app/english/home2.html, or in person at a Service Canada Centre. The locations of Service Canada Centres are listed at http://142.236.54.112/eng/gateways/where_you_live/menu.shtml#100. In order to start an application, applicants require Records of Employment from all of their employers over the past 52 weeks.
4. Q: What if my client cannot obtain their Records of Employment?
A: Should someone be experiencing difficulty obtaining their ROEs, they can request assistance from Service Canada by calling 1-800-206-7218.
5. Q: How does someone qualify for Employment Insurance?
A: There are several factors that must be taken into account. First, EI claimants must have worked in “insurable employment” as defined by section 5(1) of the Employment Insurance Act. Further information on what constitutes insurable employment can be found at sections 2 through 9 of the Employment Insurance Regulations. Generally, insurable employment is employment under a contract of service.
Second, claimants, with some exceptions, must have a sufficient number of insurable hours worked during their qualifying period to qualify for benefits. Claimants’ qualifying periods are generally the last 52 weeks. Usually claimants will qualify for EI provided they have worked 700 hours during their qualifying period.
The issue of whether and how long claimants have been in insurable employment is one which neither a Board of Referees nor an Umpire has jurisdiction to decide. The legislation specifically states that such a question will be determined by an authorized office of the Canada Revenue Agency (CRA).[1] Should your client be unsatisfied with the decision of the CRA officer an appeal can be made to the Minister within 90 days from the date the Minister’s decision is communicated to your client.[2] If your client is unsatisfied with the Minister’s decision that decision can be appealed to the Tax Court of Canada within 90 days of the Minister’s decision having been communicated to your client.[3]
6. Q: What are some common reasons that claimants are disqualified from receiving EI benefits?
A: Claimants can be disqualified from receiving benefits if they voluntarily leave their employment without just cause. The term ‘just cause’ is not specifically defined in the Employment Insurance Act, however it is said to exist pursuant to section 29(c) if there was no reasonable alternative to leaving employment or taking leave having regard to all of the circumstances. Section 29(c) goes on to list a series of circumstances that should be taken into account when determining whether or not a claimant had just cause for voluntarily leaving their employment. These circumstances are:
· sexual or other harassment;
· obligation to accompany a spouse, common-law partner or dependent child to another residence;
· discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act,
· working conditions that constitute a danger to health or safety;
· obligation to care for a child or a member of the immediate family,
· significant modification of terms and conditions respecting wages or salary;
· excessive overtime work or refusal to pay for overtime work;
· significant changes in work duties;
· antagonism with a supervisor if the claimant is not primarily responsible for the antagonism;
· practices of an employer that are contrary to the law;
· discrimination with regard to employment because of membership in an association, organization or union of workers;
· undue pressure by an employer on the claimant to leave their employment; and
· any other reasonable circumstances that are prescribed.
Claimants can also be disqualified from receiving EI benefits if they lose their employment by reason of their misconduct. Misconduct is essentially willful conduct, or conduct that is so reckless so as to amount to willfulness, which adversely affects the employment relationship. It must affect a claimant’s job performance and be detrimental to the employer’s interest. Misconduct is often found to exist where a claimant’s actions irreparably damage the trust relationship between employer and employee. It is important to realize that to a certain extent the nature of a claimant’s employment will determine whether the conduct complained of amounts to misconduct.
It is important to understand that dismissal for cause based on a claimant’s conduct is not the same as dismissal for misconduct. For example: incompetence, stupidity, misunderstanding between an employee and employer, momentary carelessness or simple mistakes may be cause for dismissal but are not necessarily equivalent to misconduct.
Another common reason that claimants may be disentitled to EI benefits has to do with ‘availability’.[4] In order to be entitled to benefits claimants must show that they are seeking employment and are available for work. Availability is a willingness to work under regular conditions without unduly limiting the chances of obtaining employment. It is a question of fact, and the burden for proving availability rests upon claimants.
6. Q: Do claimants face more stringent qualification requirements if they have past EI violations?
A: Depending upon the severity of the violation, EI claimants will require additional hours worked during their qualifying period should they have one or more violations in the 5 years before making their application for benefits.[5] It is important to note a limitation period with respect to the increased number of hours required in that claimants with one or more violations will only have to meet the increased hours requirement on two initial applications for benefits.[6]
7. Q: What do I do if my client’s application for EI is denied?
A: The first step in the appeal process is to file a notice of appeal within 30 days of the decision to deny benefits. A notice of appeal form can be found at:
http://www.hrsdc.gc.ca/cgibin/search/eforms/index.cgi?app=profile&form=ins5210&dept=sc〈=e
This form allows you to set out the grounds of appeal and also provides your client with the opportunity to indicate they will be represented by counsel at their appeal hearing. This form should be mailed to your local Service Canada Office. A list of Service Canada locations in Nova Scotia can be found at: http://www.servicecanada.gc.ca/cgi-bin/hr-search.cgi?cmd=lst&pv=ns&ln=eng
After the notice of appeal is received an appeal will be scheduled before the Board of Referees. The Board of Referees is a three member panel made up of a Chairperson who is appointed by the Governor in Council. The two remaining Board members will be an employer and an insured person (or their representatives).
The hearing before the Board of Referees is the first time that your client will have the opportunity to appear in person before a decision maker. Therefore it is a very important opportunity for your client to tell their story to the Board.
Prior to your client’s hearing you will be sent an appeal docket which contains all of the factual information upon which the decision being appealed was based, as well as an explanation of the reasons for the decision. The explanation is essentially a memo of fact and law prepared by an employee of the EI Commission. You should review the appeal docket carefully to ensure that the facts it contains are correct. You should also pay particular attention to the EI Commission’s explanation of the decision under appeal as it will contain case law supporting the Commission’s position that you will want to review prior to your client’s Board of Referees hearing.
8. Q: What rules of procedure are followed at a Board of Referees hearing?
A: The Employment Insurance Regulations require that each party be given a reasonable opportunity to make representations with respect to any matter before the Board.[7]
Practically speaking hearings before the Board of Referees are extremely informal. They generally begin with the Chairperson explaining the role of the Board and a brief synopsis of the issue(s) before it. After those preliminary matters are dealt with the Board simply asks the claimant to present their evidence. When a claimant has legal representation this is done via a standard direct examination. The Board will also have questions for the claimant, and the rules of evidence are much more relaxed than a courtroom setting.
Generally, only the claimant appears before the Board. The EI Commission does not send a representative to the hearing and relies entirely upon its written submissions as contained in the appeal docket. However, if the issue before the Board is misconduct then the employer making the accusation of misconduct will often appear before the Board. In that case the claimant, or the claimant’s representative, is afforded an opportunity to cross examine the employer, and the hearing will be tape recorded.
After all of the evidence has been presented via direct examination, questions from the Board and possibly cross examination, the Board provides the claimant the opportunity to summarize their case and make any legal submissions they wish including presenting the Board with jurisprudence in support of their case. If you intend to rely on case law, you should provide copies to both the Board and any opposing party at the hearing.
9. Q: What is the next step in the appeal process if my client is unsuccessful at the Board of Referees?
A: The next step is to appeal to the Umpire. The appeal must be made in writing within 60 days of the decision of the Board of Referees having been communicated to the appellant.[8] A Notice of Appeal form can be found at:
http://www.hrsdc.gc.ca/cgibin/search/eforms/index.cgi?app=profile&form=ins3042&dept=sc&lang=e
The grounds of appeal to the Umpire are limited, these being:
a. the Board of Referees failed to observe a principle of natural justice or otherwise acted beyond its jurisdiction;
b. the Board of Referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or
c. the Board of Referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it.[9]
An appeal to the Umpire is ‘as of right’ on one or more of the three enumerated grounds set out above. A decision of the Board of Referees may be overturned only upon the grounds enumerated above.
10. Q: What are the rules of procedure before the Umpire?
A: According to the Employment Insurance Act, the Umpire is not bound by legal or technical rules of evidence and appeals are to be dealt with as informally and expeditiously as circumstances and fairness permit.[10] It is important to realize the hearing before the Umpire is not a trial de novo. The Umpire’s role is limited to reviewing the decision of the Board of Referees to determine whether or not it was reasonable. The Umpire does not make findings of credibility and is limited to only considering questions and issues raised before the Board of Referees.
11. Q: What remedial powers does the Umpire possess?
A: The Umpire can order the following remedies being:
a. dismiss the appeal;
b. give the decision the Board of Referees should have given;
c. refer the matter back to the Board of Referees for rehearing or re-determination in accordance with such directions as the umpire considers appropriate; or
d. confirm, rescind or vary the decision of the board of referees in whole or in part.
12. Q: What happens if my client is unsuccessful before the Umpire?
A: The only remaining option at this stage is to seek to have the Umpire’s decision judicially reviewed by the Federal Court of Appeal. You must file an application for judicial review within 30 days of the Umpire’s decision having been communicated to your client.[11] The grounds of review are set out in Section 18.1(4) of the Federal Courts Act.
13. Q: Where can I find case law to use at my client’s hearing before the Board of Referees and the Umpire?
A: One option is to call Andrew Waugh at the Halifax North Office at 420-3450. There are also excellent online databases of EI case law, as described below:
The following link provides case law from the Umpire level and above related to Employment Insurance: http://www.ae-ei.gc.ca/eng/research.shtml
The preceding link contains a jurisprudence library, decisions favourable to workers and judicial interpretations of the guiding principles of the Employment Insurance Act.
Within the jurisprudence library there is also a jurisprudence index at: http://srv130.services.gc.ca/indexjurisprudence/eng/about.aspx. This index allows you to search for cases related to specific employment insurance issues.
Other Resources
Community Legal Education has an EI publication that can be found at:
http://www.cleo.on.ca/english/pub/onpub/subject/work.htm
1
[1] See section 90 of the Employment Insurance Act.
[2] See section 91 of the Employment Insurance Act. See also section 93 of the Employment Insurance Act, which explains how to file an appeal to the Minister.
[3] See section 103 of the Employment Insurance Act.
[4] See section 18 of the Employment Insurance Act.
[5] See section 7.1(1) of the Employment Insurance Act.
[6] See section 7.1(3) of the Employment Insurance Act.
[7] See regulation 83.(1).
[8] See section 116 of the Employment Insurance Act.
[9] See section 115(2) of the Employment Insurance Act.
[10] See section 113(1) of the Employment Insurance Act.
[11] See section 18.1(2) of the Federal Courts Act. See also section 28.1(m) which gives the Federal Court of Appeal jurisdiction to hear and determine judicial review applications made in respect of the Umpire.