Digest of Benefit Entitlement Principles Chapter 2 - Section 1

2.1.0 Authority

The Employment Insurance (EI) Act (the act) sets up an insurance scheme to protect against the loss of income resulting from unemployment. The purpose of the scheme is to compensate unemployed persons for a loss; it is not to pay benefits to those who have not experienced any loss (FCA A-263-78, CUB 55181). That loss is legally referred to as an interruption of earnings (EI Act 2(1)). Subsection 54(u) of the act provides for the making of regulations to further define when an interruption of earnings occurs. An interruption of earnings is one of the conditions that must be met in order to establish a benefit period and subsequently receive benefits (EI Act 7(2)(a)).

2.1.1 Definition

The interruption of earnings of a claimant is defined in EI regulation 14(1), as occurring when an insured person is laid off or separated from an employment and has a period of seven or more consecutive days during which no work is performed for that employer and no earnings are payable from that employment. Certain types of earnings will not prevent an interruption of earnings from occurring (EI Regulation 35).

Exceptions to the general rules occur when the claimant:

• stops working because of illness, injury, quarantine, pregnancy, the need to care for a new born or adopted child, or the need to provide care or support to a seriously ill family member (EI Regulation 14(2))
• regularly works more hours, days or shifts than is normally considered full-time employment and, pursuant to an employment agreement, is entitled to a period of leave to compensate for the extra hours worked (EI Regulation 14(3) and EI Act 11(4))
• is employed under an employment agreement for which they are paid for the specific period covered by the agreement, regardless of the amount of work performed in that period or when payment is made (EI Regulation 14(4))
• is employed in real estate on a commission basis and holds a provincial real estate license (EI Regulation 14(5)(a))
• is employed under an employment agreement under which their earnings consist mainly of commissions (EI Regulation 14(5)(b))

Each of these situations has their own specific provisions and will be dealt with later in this chapter.

An interruption of earnings for persons employed in work sharing employment is determined based on the provisions of EI Regulation 43.

An interruption of earnings for self-employed workers is determined based on the provisions of EI Regulation 14.01. Detailed information regarding entitlement to benefits for self-employed workers is available in chapter 24 of this digest.

2.1.2 Scope

An interruption of earnings is required to establish a benefit period. An interruption does not need to be from the most recent employment; any interruption of earnings during the qualifying period may be used for this purpose.

2.1.3 Proof

Generally, the proof required to support that an interruption of earnings has occurred is the record of employment (ROE). Employers are required to complete a ROE for an insured person when they have an interruption of earnings (EI Regulation 19(2)). It is usually considered that a claimant who does not submit their ROE has not proven that an interruption of earnings has occurred. However, it will be accepted that an interruption of earnings has occurred if the claimant can show that they have made reasonable efforts to obtain the ROE but the employer has failed to issue it at the proper time. The timeframes within which the employer must issue the ROE are outlined in regulation 19(3)(a) and (19)(3.1).

An employer may have issued the ROE for the insured person prior to the end of the seven-day interruption of earnings period. When the Commission becomes aware, before the benefit period is established, that the claimant has returned to work for the same employer before the end of the seven day break, the Commission will not establish a benefit period, as legally, an interruption of earnings has not occurred.

However, where the Commission becomes aware, after the benefit period has been established, that the claimant returned to work for the same employer before the end of the seven day break, the Commission will only reconsider the decision to establish the benefit period, if there is evidence that the employer knew the claimant would be returning to work within seven days, when they issued the ROE.

The purpose of this policy is to prevent the voiding of a claim because there was no interruption of earnings in situations where the employer issued the ROE believing that the person would be off work for seven or more days, but was called back unexpectedly.

[ February 2019 ]