Archived – Digest of Benefit Entitlement Principles Chapter 8 - Section 10

8.10.0 Suspension of the disentitlement

Under certain conditions, a disentitlement can be suspended during the period where the claimant proves that he or she is otherwise entitled to benefits for those particular reasons ^{Footnote 1} .

8.10.1 Otherwise entitled to benefits

The suspension of the disentitlement, as provided in the text of the legislation ^{Footnote 2} , should not be viewed as not having any distinction to the period of time which can exist in a benefit period or for which a claimant could invoke reasons to claim these benefits. The suspension is only possible during the period for which the claimant proves that he or she is otherwise entitled to benefits for one of the following reasons ^{Footnote 3} : pregnancy, caring for a new-born or a child placed for the purposes of adoption, providing care or support to a family member who is seriously ill with a serious medical condition and significant risk of death within 26 weeks, providing care or support to their critically ill family member, illness, injury, quarantine or attending a course or employment activity to which the claimant was referred by a designated authority. This framework constitutes one of the two prerequisites, which provides for suspension of the disentitlement.

Therefore at the outset it is important to know the reasons why the claimant is requesting benefits during a period of disentitlement under the legislation concerning labour disputes. It is not necessary to go any further if it is not for one of the preceding reasons.

The next step is to determine whether the claimant is otherwise entitled to benefits for the reasons stated if not for the dispute and the work stoppage. It must first be determined whether the claimant meets the qualifying conditions attached to the type of benefits being claimed, such as the required number of hours of insurable employment, documents and proof required to support the declarations and period for which benefits are claimed. A minor attached claimant, for example, cannot receive maternity ^{Footnote 4} , parental ^{Footnote 5} , compassionate care ^{Footnote 6} or family caregiver benefits. The same would apply to a claimant who has already received the maximum benefits payable for sickness ^{Footnote 7} and subsequently claims more of these benefits during the course of the stoppage of work.

The disentitlement imposed as a result of a labour dispute could not be suspended in the case of a woman who, during the work stoppage, is entitled to receive benefits from the Quebec Parental Insurance Plan ^{Footnote 8} ; as a general rule, this woman cannot otherwise prove that she is entitled to EI maternity or parental benefits ^{Footnote 9} .

A claimant may successfully invoke several reasons during the benefit period that would allow for the suspension of the disentitlement. One can think of sickness benefits followed by maternity benefits followed by parental benefits. Each of these reasons must be examined separately with respect to their own conditions of entitlement.

The fact that a person would otherwise be entitled to benefit for the reasons mentioned does not constitute a guarantee that the disentitlement will be suspended. A supplementary condition is provided in the legislative text, and is dealt with in the following heading.

[ October 2013 ]

[ October 2006 ]

8.10.2 Supplementary condition

It is not sufficient that there is a period for which a claimant would otherwise be entitled to benefits, for one of the reasons mentioned ^{Footnote 10} , in order to suspend a period of disentitlement. The claimant must also, according to the wording of the legislation, provide a supplementary condition, namely establish ^{Footnote 11} :

. . . in such manner as the Commission may direct, that before the work stoppage, the claimant had anticipated being absent from their employment because of any reason entitling them to those benefits and had begun making arrangements in relation to the absence.

However, it is not necessary to ask whether this condition is met when a period for which a claimant could otherwise be entitled to benefits, does not exist.

Essentially, this supplementary condition disregards the stoppage of work and permits the claimant, whose absence was anticipated and, who before the stoppage of work had begun making arrangements in this regard, to receive benefits for one of the cited reasons and to which he or she is otherwise entitled. This then blocks access to benefits by those who, during the course of the stoppage of work, seek a way to avoid disentitlement.

It is necessary to determine at what precise moment the stoppage of work occurred in order to be in the position to really determine if the absence was anticipated and if arrangements in respect of that absence had begun before the stoppage of work. This will be more complicated if at the claimant's place of employment there were several stoppages of work due to the same labour dispute and they were of varying duration. In this case we will confine it to the stoppage of work, which is tied to the disentitlement that the claimant is requesting, be suspended.

This supplementary condition imposes a double obligation on the claimant. Not only must there be proof that the absence from employment, for one of the reasons mentioned in the legislation, was anticipated, but also that arrangements for this absence had been begun before the stoppage of work occurred. It is not necessary that the precise period of absence had been fixed or known before the start of the stoppage of work. An anticipated absence for reasons other than those mentioned or which was not accompanied by concrete arrangements to this effect will not fulfill this condition. The same is true when the arrangements were not in relation to the anticipated absence or only commenced during the course of the stoppage of work.

No doubt more than one claimant will allege that he or she fulfills this supplementary condition in order to avoid a disentitlement. A mere statement to that effect is not sufficient. It is incumbent on the claimant to present documents, certificates and any other information required in order to corroborate the allegations.

To support the statement that arrangements with the employer were made, the claimant may submit for example, that he or she advised the employer before the stoppage of work of the anticipated absence, or had at that time requested authorization for the absence. Such arrangements by themselves do not demonstrate that the claimant fulfills the supplementary condition on all points.

In fact, for the person who anticipates an absence from employment, these arrangements with the employer are, more often than not, the last thing the person does. Other arrangements, depending on the reasons for the absence from work, must be made and it is these arrangements that the claimant must furnish to Commission as proof that they were begun before the stoppage of work. There is no requirement that the arrangements have been finalized before the stoppage of work. It must also be realized that a person may have begun making arrangements without saying a word to the employer. The fact that the claimant has absented him or herself from employment with or without the employer's authorization, or even, that the arrangements were made without the knowledge of the employer, is not pertinent.

It rests with the Commission to determine what constitutes an acceptable proof that the claimant fulfills the supplementary condition. Let us now examine this more closely ^{Footnote 12} .

8.10.3 Acceptable proof

There is a need for more than a simple statement from the claimant that his or her absence from employment was anticipated and that arrangements to this effect had begun before the stoppage of work. It is essential that the claimant provide the relevant information, explanations and, when required, documents in support of such a statement, so that it could reasonably be concluded, on the weight of the evidence, that he or she fulfilled the supplementary condition.

In the case of pregnancy acceptable proof is the claimant's declaration as to her pregnancy and her actual or expected date of confinement submitted with the claim for benefit insofar as it establishes that the claimant was pregnant before the stoppage of work.

For those who are caring for a newborn child, acceptable proof may be a confirmation from the employer that a leave for such an absence from employment had been anticipated and requested before the stoppage of work. A person could also demonstrate by the work history that the absence was anticipated and planned in order to take care of the newborn child, as had been the case for the earlier births. Moreover, we could accept an unequivocal statement that demonstrates that all had been in place before the stoppage of work for the claimant to withdraw from the labour market for a certain period of time in order to care for the newborn child.

A statement from a medical doctor or nurse practitioner could also establish that it was known, before the start of the stoppage of work, that the newborn child's state of health would eventually require the father or mother to be absent from work.

In the case of compassionate care leave, the claimant will be required to submit a medical certificate for compassionate care benefits attesting that a family member has a serious medical condition with a significant risk of death within 26 weeks and requires the care or support of one or more family members. Acceptable proof may be confirmation from the employer that the arrangements for the absence from work had begun before the stoppage of work.

Claimants requesting family caregiver benefits are required to submit a medical certificate indicating that the patient is critically ill or injured and requires the care or support of one or more family members, as well as indicate the period during which the patient is expected to require care or support signed by a medical doctor or nurse practitioner. An authorization to release a medical certificate is also required.

With respect to illness, injury or quarantine, the claimant will be required to submit a medical certificate attesting that the absence in question was anticipated before the start of the stoppage of work and that arrangements in that respect had begun before the stoppage of work. We are strictly dealing here with illness or injury for which an absence had been anticipated, be it for treatment, surgery or rest in a detoxification centre, and in respect of which arrangements had begun before the start of the stoppage of work.

What is not considered in this category is an illness or injury that was diagnosed before the stoppage of work, but it had not been anticipated before the start of the stoppage of work that there would eventually be an absence from work. The same would apply in the case of an illness or injury which occurred before the start of the stoppage of work but the claimant had not made any arrangements to be absent from employment until after the start of the stoppage.

It would be acceptable where the illness is related to a chronic or degenerative condition that results in episodic absence from employment whose existence was known before the start of the stoppage of work. One need only think of, amongst others, severe diabetes, chronic depression, heart or pulmonary illness, or complications related to the acquired immune deficiency syndrome.

For those attending a course or employment activity it need only be confirmed by the designating authority that the arrangements for this participation had begun before the stoppage of work.

Finally, a vague possibility of an absence, without further specifics is not sufficient to arrive at the conclusion that the absence was anticipated. It is necessary that the elements of anticipation, planning and organization be found to exist before the start of the stoppage of work in order for an absence to be considered as "anticipated" before the said stoppage. The situation here is one where the claimant had begun making arrangements before the start of stoppage of work and the absence from employment had been one of the anticipated consequences.

[ October 2013 ]

[ October 2006 ]

8.10.4 Period suspended

The suspension of a disentitlement will permit the payment of benefits to which the claimant is otherwise entitled for the reasons stated, regardless of the labour dispute in progress. The fact that there was participation, financing or direct interest will not have any bearing during the period where the claimant fulfills the legislative requirements relating to the suspension of the disentitlement ^{Footnote 13} .

The disentitlement will be suspended for as long as the conditions are met. A claimant who, during the benefit period, is no longer otherwise entitled to benefit for the reasons stated, will automatically have the period of suspension terminated. The disentitlement will be re-imposed. Furthermore, so long as the legislative requirements are met, it is possible that there could be more than one period where the disentitlement is suspended in the course of the same labour dispute or benefit period.

The fact that a labour dispute disentitlement has been suspended will not prevent the labour dispute and the stoppage of work to follow their course, that a resolution between the two parties could occur, or even that the claimant at a certain time could meet the conditions of non-application ^{Footnote 14} . When the situation permits the termination of the disentitlement, there is no need to continue with the question of suspension.

The suspension of a disentitlement does not constitute a safe-passage to immediately receive benefits claimed. During the period of suspension a claimant may be required to serve the waiting period, another disentitlement, an allocation of earnings, or even a disqualification for benefits otherwise payable.