Digest of Benefit Entitlement Principles Chapter 1 - Section 1

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1.1.0 Authority

The employment insurance program is under the jurisdiction of the federal government Footnote 1 . The basic premise of the current legislation is known as the Employment Insurance Act. This Act allows for the making of regulations to the legislation with approval of the Governor in Council.

The regulatory provisions are otherwise known as the Employment Insurance Regulations Footnote 2 , Employment Insurance (Collection of Premiums) Regulations Footnote 3 and National Employment Service Regulations Footnote 4 .

1.1.1 Summary

In 1935, the federal authorities established for the first time a social plan that included an unemployment insurance scheme. The following year, however, the legislation was found to be unconstitutional.

With the approval of the provinces, the federal government eventually obtained the constitutional authority it needed to establish the Unemployment Insurance Act that came into existence in August 1940. Strictly speaking, however, it was only in January 1942 that the Canadian unemployment insurance scheme came into existence and benefits were paid. It was largely patterned on the British Scheme that had its beginnings at the turn of the century.

Many changes have been made to mold the scheme to the Canadian experience, to reflect changes in the labour market, and to take into account both economic and social circumstances. A major overhaul came about in 1971 when the legislation was amended to extend coverage almost universally to workers in the event of not only shortage of work but also sickness and pregnancy. The legislation was further extended to pay benefits to adoptive parents in 1984 and paternity benefits in special circumstances were introduced in 1987. This evolved to parental benefits in 1990, replacing adoption and paternity benefits.

We cannot forget to mention the Canadian Human Rights Act of 1977 and the assent given to the Canadian Charter of Rights and Freedoms on 17 April 1982, except for Section 15 concerning equality rights which came into force three years later, in 1985. The principles of that Act and the Charter must be respected just as much as those concerning the application of the Employment Insurance Act.

The definition of the term "spouse" was amended in 2000. The term "spouse" refers to someone who is married to the claimant. Equal consideration must be given under this provision to a claimant who is living in a relationship of a conjugal nature with an individual of the same or opposite sex and has so lived with this individual for a period of more than one year or who has a child or is about to have a child with that individual.

The new Employment Insurance Act brought together in a single statute, under the name "Employment Insurance" in 1996, provisions for income support and employment assistance for eligible unemployed persons. Income support is provided in a way that reinforces work. Employment assistance helps maintain a sustainable employment insurance system by helping unemployed persons to be productive participants in the labour force.

The changes embodied in the employment insurance system in this enactment constituted a comprehensive modernization of the system. They reformed many of the core features of the system, introduced a number of new elements and made a number of technical amendments to improve fairness, administration and compliance. The major changes phased in over an extended period beginning in 1996 ending in 2001.

This enactment also continues the National Employment Service and authorizes the establishment of employment benefits, such as wage subsidies or earnings supplements, in order to help eligible unemployed persons get back to work. These provisions are subject to guidelines of harmonization with provincial programs, reduction of dependence on income support, co-operation and partnership with provincial governments and others.

It commits the federal government to work in concert with the provinces in designing, implementing and evaluating these employment benefits. It provides for arrangements to be negotiated for the administration by provinces of the employment benefits. It also provides that the Government of Canada can make financial contributions to similar provincial programs that are consistent with the purposes and guidelines, set out in this enactment. It specifies that assistance for the provision of labour market training in a province would be provided only with the agreement of the provincial government.

There is also a provision for monitoring and assessing how individuals, communities and the economy are adjusting to the changes, including the effectiveness of the employment benefits.

The implementation of the Quebec Parental Insurance Plan (QPIP) on January 1, 2006, has brought about many changes in the rules Footnote 5 respecting the payment of benefits relating to the birth or adoption of a child, which were until then under the jurisdiction of the Employment Insurance (EI) program throughout Canada.

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[ November 2003 ]

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1.1.2 Application

Two government agencies are responsible for the administration of the Employment and Insurance Act: the Canada Revenue Agency and the Department of Employment and Social Development Canada. The first deals with collection of premiums Footnote 6 , the second with payment of benefit Footnote 7 . Neither has the right to delegate those responsibilities to the other Footnote 8 .

The plan is financed by premiums collected from workers and employers Footnote 9 . The accumulated funds cover both the benefits paid to unemployed persons and the costs of administration Footnote 10 .

1.1.3 Determination of questions

The collection of premiums, and more particularly, the resolution of any question as to whether a worker falls under the unemployment insurance plan, the insurability of employment or earnings falls under the jurisdiction of the Minister of National Revenue Footnote 11 . Appeals on these subjects may be made to the Minister of National Revenue Footnote 12 or to the Tax Court of Canada Footnote 13 .

Employment and Social Development Canada (ESDC) is the adjudication authority responsible for the payment of benefit and in particular entitlement to benefit Footnote 14 . Specific instruments of delegation confer this authority to officers in the Service Canada Centres and to certain officers at regional and national levels Footnote 15 . Appeals may be made to a Board of Referees Footnote 16 and, at the next level, to an Umpire Footnote 17 .

The appellant is not responsible for any procedural expenses in connection with a hearing Footnote 18 , except those incurred personally such as hiring a lawyer. The final disposition of the case by the Tax Court of Canada or an Umpire may be subject to appeal or review before the Federal Court Footnote 19 in accordance with procedures and subject to the costs provided by the Court. Finally, any case may be appealed before the Supreme Court of Canada when leave has been granted by that court.

1.1.4 Purpose of unemployment benefits

The purpose of unemployment benefits is to provide the worker who is involuntarily unemployed with some means of subsistence until other employment is found. For this reason, certain criteria having disentitling effects must be introduced to deal with individuals voluntarily unemployed or not actively seeking employment.

Clearly, unemployment benefits are intended to provide compensation to a person available for work. This type of benefit is called regular benefits, as opposed to other types of special benefits that have been introduced over the years to compensate for other kinds of unemployment.

1.1.5 Types of benefits

Although the legislation covers various types of unemployment situations, the benefit payable in each instance is not so defined.

Following are the various types of benefits:

  1. regular benefits; Footnote 20
  2. sickness benefits; Footnote 21
  3. maternity benefits; Footnote 22
  4. parental benefits; Footnote 23
  5. compassionate care benefits Footnote 24
  6. family caregiver benefits for children and family caregiver benefits for adults Footnote 25
  7. fishing benefits; Footnote 26 and
  8. developmental program benefits Footnote 27 .

Each type of benefit (except regular benefits) will be discussed in a separate chapter. Sickness, maternity, parental, compassionate care and family caregiver benefits are referred to as special benefits as opposed to regular benefits paid to claimants while they are looking for work.

Benefits paid to persons engaged in fishing are subject to specific entitlement conditions. The same is true for benefits payable for developmental programs for work sharing, job creation and occupational training. Employment and Social Development Canada (ESDC) also has the authority to make regulations to establish schemes whose objectives are to provide assistance in the development of the labour force Footnote 28 .

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1.1.6 Payment of benefits

The payment of unemployment benefits is not based on the personal needs or financial obligations of an individual. Equally, the fact that one has paid premiums to the EI fund does not by itself give rights to receive benefits Footnote 29 . It is rather a right an insured person may exercise, as would be the case with an insurance policy one has subscribed to, and eligibility depends on abiding by the various conditions established by the law Footnote 30 .

The insured person who wishes to receive benefits must first indicate his or her intention Footnote 31 by making a claim and proving that he or she meets the conditions necessary to establish a benefit period Footnote 32 for which benefits may be payable in that period Footnote 33 . The filing of a claim is the first requirement to be met and it is also the means by which the claimant will officially know whether he or she is entitled to benefits.

There are three types of claims for benefit: the initial, the continuing and the renewal claim Footnote 34 . Only the initial claim is related to establishing a benefit period Footnote 35 . Continuing and renewal claims are claims made for weeks of unemployment during the existence of the benefit period Footnote 36 .

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