Digest of Benefit Entitlement Principles Chapter 1 - Section 3

1.3.0 Extension of qualifying period

Only the number of insurable hours that fall within the qualifying period may be considered to establish a benefit period ^{Footnote 1} . However, there are four grounds under which the qualifying period may be extended. It is the claimant's responsibility to show that one of these grounds applies in their particular case ^{Footnote 2} .

It should be noted that no extension of the qualifying period may be allowed if a previous benefit period was established during the 52-week period preceding the effective date of the initial claim ^{Footnote 3} . The qualifying period may never be extended beyond the commencement date of any prior benefit period ^{Footnote 4} , and the extended qualifying period may not exceed 104 weeks in total ^{Footnote 5} . The prior benefit period may be cancelled under certain circumstances and is then deemed to have never existed ^{Footnote 6} .

1.3.1 Grounds for extension

The following are the four acceptable grounds for extension of the qualifying period provided they prevented the claimant from being employed in insurable employment ^{Footnote 7} :

1. incapacity for work;
2. confinement in a prison or similar institution; effective June 30, 2013, claims may be granted an extension of the qualifying period when a claimant provides proof they were not found guilty for the charge(s) that lead to the incarceration(s).
3. attendance at a course or other employment related activity following referral by the Commission or designated third party ^{Footnote 8} ;
4. receipt of payments under a provincial law on the basis of having ceased to work because continuing to work would have resulted in danger to the person, her unborn child or a child whom she is breast-feeding.

The common rationale in these four grounds is incapability of insurable employment due to external circumstances beyond one's control ^{Footnote 9} .

An extension of the qualifying period may be granted on any of these four grounds provided the ground arose totally or at least partially during the period that may be extended, i.e. the 52 weeks of the qualifying period ^{Footnote 10} .

Although there are good arguments that other reasons could also constitute grounds for extension, to accept them would be going beyond the scope of the legislation. Accordingly, extensions have been denied to claimants who had to stay home because a family member required attendance ^{Footnote 11} , who were taking law courses ^{Footnote 12} , who were absent from Canada for some time to accompany their spouse ^{Footnote 13} , or who were unemployed by reason of a strike ^{Footnote 14} or lock-out ^{Footnote 15} , or who were employed in a business on their own account ^{Footnote 16} .

1.3.2 Other reasons for not being employed in insurable employment

There may have been more than one reason why a claimant was not employed in insurable employment for a particular period. It may be that one reason may constitute a valid ground for extension of the qualifying period whereas the other does not. The fact that one of the grounds for extension exists, does suffice.

[ February 2004 ]

1.3.3 Calculation of extension

An extension to the qualifying period will be granted where a claimant was not employed in insurable employment during a given period even when another reason also existed which would not be acceptable for extension, no matter what was the chronology of events. An example of this would be the case where a person who was incapable of working due to medical reasons while also on vacation, even outside the country, would have the qualifying period extended for the total duration of the incapacity.

Once the acceptable period for extension purposes has been determined, the number of full calendar weeks within this period is calculated. Where the period includes partial weeks at the beginning or the end, each may be counted as a full week provided that one of the four grounds for extension actually prevented the claimant from either holding insurable employment or from actively seeking such employment in that week. Any week, for which a payment of EI benefit was made or is deemed to have been made, even as little as one dollar, must be excluded ^{Footnote 17} .

The qualifying period is then extended by the remaining number of weeks ^{Footnote 18} . Other grounds for extension may arise at another time during the 52 weeks of the normal qualifying period or during the extended period. In this event, the same procedure is used to further extend the qualifying period ^{Footnote 19} , with the sole restriction that the qualifying period may not be extended beyond the commencement date of any prior benefit period or beyond the maximum 104 weeks mentioned previously ^{Footnote 20} .

In the context of the implementation of the Quebec Parental Insurance Plan on January 1, 2006, a new principle has been established to guarantee equity in the processing of claims for Employment Insurance benefits that are filed throughout Canada. This principle of equivalence ^{Footnote 21} extends to benefits paid under a provincial plan a recognition that is similar to maternity or parental benefits paid under the EI program, applies to any future claim for EI benefits.

According to a regulation ^{Footnote 22} made in this context, the EI qualifying period cannot be extended for any week in which a person has received provincial benefits for a birth or adoption such as QPIP benefits, just as is the case for any week for which a person has received EI benefits ^{Footnote 23} .

[ September 2006 ]

1.3.4 Incapacity for work

The incapacity for work that qualifies for extension purposes is the same as that which enables a person to qualify for sickness or that resulting from pregnancy. To be more specific, it must be an illness, injury, pregnancy or quarantine that has rendered the claimant incapable of performing the functions not only of his or her regular or usual employment but also any other suitable employment ^{Footnote 24} .

The claimant is required to provide medical substantiation as to the illness suffered and the resulting incapacity ^{Footnote 25} . The same applies in the case of incapacity resulting from pregnancy, injury or quarantine.

Incapacity of a family member that necessitates the claimant's presence at home and thus prevents the claimant from being employed in insurable employment does not suffice. It is the claimant's own incapacity for work or quarantine that must be considered ^{Footnote 26} .

In one case, a teacher was forced, for all practical purposes, to wait until the beginning of the next school year to resume her employment even though she had recovered and her convalescence was over. Her argument that she was unable to resume employment in the middle of the school year due to that previous incapacity which had forced her to take a leave of absence was dismissed ^{Footnote 27} .

[ February 2004 ]

1.3.5 Confinement in a prison or similar institution

In order to qualify for an extension on this ground1 the claimant must have been confined in a jail, penitentiary or other similar institution and this condition must be proven in such manner as the Commission may direct ^{Footnote 28} .

Effective June 30, 2013, extensions based on this condition will cease to occur unless the claimant is able to provide proof that they were not found guilty of the offence(s) that led to the incarceration(s).

In one case, a claimant who was on an extended vacation in a country other than Canada was found to be an illegal alien and was advised not to leave that country until his status was cleared up by immigration; this did not amount to confinement in a prison or similar institution ^{Footnote 29} . This also applies where the prohibition to leave the other country is preceded by imprisonment, in which case only the actual period of imprisonment is taken into account for extension purposes ^{Footnote 30} .

It has also been held that a remand by Court Order in a mental institution for the purpose of evaluating one's ability to stand trial as a result of criminal charges does not amount to confinement in a prison or similar institution ^{Footnote 31} .

Absences granted to inmates serving a sentence of imprisonment are a different matter however. They qualify for an extension of the qualifying period provided the conditions imposed on the individual are so restrictive as to likely prevent that person from being employed in insurable employment; this was applied in the case of an inmate authorized to go and reside with his parents on condition that he work on the farm ^{Footnote 32} . Indeed, it appears from the intent of the legislation that the class of individuals confined in a prison or similar institution must include those prisoners who, while not still remaining in physical confinement, are nevertheless still within the class since they are not yet available for employment.

[ February 2004 ]

1.3.6 Referred to a course or other related employment activity by an ESDC designated authority

The period for which the extension applies commences on the day the claimant actually begins the course, or other employment activity. In cases where the referral is made after the course, or other employment activity begins, the period of extension will begin on the day the referral was made. Taking a course, on one's own initiative, i.e. without referral by such authority as the Commission may designate is not a ground for extension ^{Footnote 33} .

The legislative expression "to be in attendance at a course" as well as the interpretation to be given to it where the claimant has failed to attend the course for one or more full calendar weeks, are found in judgments reported in a separate chapter ^{Footnote 34} .

The argument that the course should be considered a designated program because it was approved by the provincial Department of Education and provincial government leaders vigorously encouraged students to attend has been rejected ^{Footnote 35} . Only the Commission may designate the authority that may refer persons to a course, and it is not open to a Board of Referees or Umpire to intervene ^{Footnote 36} .

The purpose of this ground for extension is to disregard the period of time during which a person attends a course following a referral by the ESDC designated authority and thus combine two periods of employment which, separately, would not be sufficient to establish a benefit period. Take the case, for example, of a claimant who was employed in insurable employment for a period of 280 hours which is short of the number required to establish a benefit period, who then registers with an employment center and takes a ten-month course while receiving a training allowance, then finds other insurable employment for a period of 210 hours; by extending the qualifying period beyond the usual 52 weeks, the claimant could accumulate the required hours of insurable employment according to the regional rate of unemployment to establish a benefit period. In that case, the person was in receipt of a training allowance and did not receive unemployment insurance benefits because there was no benefit period in existence while he or she was attending the course.

Part I benefits are paid to individuals who have acquired the number of insurable hours to establish a benefit period and have been referred to a course or other employment related activity ^{Footnote 37} . These claimants will not be granted an extension, even if only one dollar is paid or payable in the weeks in question ^{Footnote 38} .

Part II benefits are paid to individuals who are not able to establish a benefit period or whose benefit period has expired. They have been referred by an ESDC officer or other ESDC designated authority, to a course of instruction or other employment related activity ^{Footnote 39} . Therefore, in this case the extension may be applicable ^{Footnote 40} .

Taking a course or other employment related activity, following referral by an ESDC designated authority constitutes a ground for extension if the claimant is not entitled to benefits by reason of a strike or lockout ^{Footnote 41} .

[ February 2004 ]

1.3.7 Payments for preventative withdrawal of work

Even if there exists another ground for which the person was not in insurable employment during the weeks in question, in which case we would apply the provisions mentioned earlier ^{Footnote 42} . For the purposes of extension, we would count any week in which a person was in receipt of payments under a provincial law on the basis of having ceased work for the reason that continuing to work would have entailed danger to the claimant the claimant's unborn child or the child she is breast feeding ^{Footnote 43} .

The claimant, in order to prove such a situation, is required to provide documentation that specifies the exact nature of the payments as well as the period for which these payments were made ^{Footnote 44} .

[ February 2004 ]