Digest of Benefit Entitlement Principles Chapter 1 - Section 2

1.2.0 Establishing a benefit period

In order to have a benefit period established, an insured person must have accumulated the required number of hours of insurable employment in the qualifying period and must have had an interruption of earnings^{Footnote 1}. Any interruption of earnings occurring during the qualifying period would meet this requirement^{Footnote 2}.

The required number of hours of insurable employment for a claimant may be found under it's specific heading^{Footnote 3}.

1.2.1 Qualifying period

The qualifying period is the 52 weeks immediately preceding the commencement of the benefit period^{Footnote 5}; it may be extended under certain circumstances^{Footnote 6}.

Where a previous benefit period had started during those 52 weeks, the qualifying period is limited to the period elapsed between the commencement of that benefit period and the date from which the new benefit period will be effective^{Footnote 7}.

1.2.2 Insurable employment

As of January 1, 1997, the insurability rules changed from the concept of insured weeks to insured hours. The principle of the hours system is simple: regardless of whether an employee is full time, part time, seasonal, casual or on and off during the year, the hours that are worked or on stand-by^{Footnote 8} and paid for are accumulated towards eligibility for EI benefits. By using hours instead of weeks to calculate eligibility, the claimant is credited with all their paid work.

This approach applies to overtime, which is calculated hour for hour no matter what the rate of pay as well as stand-by hours at the workplace only^{Footnote 9} or are paid at a rate equal or higher than the employee's regular rate of pay^{Footnote 10}. As well, paid leave of any type is insured for the number of hours that would normally be worked in that period, regardless of rate of pay.

In some situations where it is difficult to determine the number of hours worked, the Commission may deem the number of hours worked^{Footnote 11}. When the insurability of employment is in question, the matter is referred to Canada Customs and Revenue Agency for a ruling^{Footnote 12}. This employment is not included in the calculation of the claim pending the ruling^{Footnote 13}.

[ May 2004 ]

1.2.3 Number of hours of insurable employment required

In order to establish a benefit period a regular qualifier must accumulate from 420 to 700 hours of insurable employment in the qualifying period. The exact number is found in the Table of Required Hours of Insurable Employment^{Footnote 28} and is dependent on the applicable regional rate of unemployment^{Footnote 29}. The higher the regional rate of unemployment, the lower the number of hours of insurable employment required. Thus, for example, a minimum of 420 hours of insurable employment is required in a region whose rate of unemployment is more than 13%, whereas a minimum of 700 hours would be required where the regional rate of unemployment would be 6% or less^{Footnote 30}.

1.2.4 Increased entrance requirement sanction

The Act has introduced the Increased Entrance Requirement Sanction for those persons who commit fraud against the EI system. Violations range from minor to subsequent^{Footnote 31} with a related increase in the number of hours required to qualify for benefits^{Footnote 32}.

The objective of this measure is to eliminate any advantage gained by the person as a result of the false statements and to deter repetition of such conduct. Under the Act, the Commission can impose penalties or prosecute persons who receive or try to receive benefits by knowingly making false or misleading statements^{Footnote 33}. Any finding for a false or misleading statement will have a notice of violation issued^{Footnote 34}.

1.2.5 Attachment to the labour force–prescribed hours

In calculating the number of hours during which a person was a member of the labour force, account is taken of any hours of insurable employment, any hours for which benefits have been paid or were payable (calculated on the basis of 35 hours per week for each week of benefits paid), as well as any hours prescribed by regulation that "relates to employment in the labour force"^{Footnote 35}.

The above quoted expression is not defined^{Footnote 36}. Its meaning may be construed using the ejusdem generis rule. According to that rule an expression is defined by reference to those preceding it and by assuming that they all refer to similar situations.

Thus, an hour "that relates to employment in the labour force" is one that is related to a situation arising out of insurable employment or a situation which has precluded the payment of benefit. In fact, it seems reasonable to conclude that the "labour force" here refers to that contemplated by the legislation in general, i.e. insurable employment that enables claimants to qualify for benefits^{Footnote 37}.

Therefore, for an hour to be considered, it should relate to employment. There are some exceptions to this, as indicated in the Regulations^{Footnote 38}. The following list can be counted as hours attached to the labour force: 

1. any hours of insurable employment^{Footnote 39}, including fishing;
2. any week served as part of the waiting period^{Footnote 40};
3. week of disqualification^{Footnote 41};
4. any week for which benefits were paid or are deemed to have been paid^{Footnote 42}; benefits here refer to those paid under the Canadian legislation, so that benefits received from another country are to be ignored for this purpose;
5. any week during a benefit period for which EI benefits could have been paid had the earnings to be allocated not been so high^{Footnote 43}, whether or not these earnings arose from insurable employment;
6. any week during which the claimant did not work but nevertheless had earnings that prevented an interruption of earnings, whether or not the claimant had made a claim at the time. For instance, compensatory time off, deferred salary plans and "lay days"^{Footnote 44};
7. any week during which the claimant was attending a course or program following referral by the Commission or an authority designated by Commission^{Footnote 45};
8. any week during which the claimant was employed under the self-employment program or job creation program^{Footnote 46};
9. any week of unemployment resulting from a stoppage of work within the meaning of the legislative provision on labour disputes^{Footnote 47};
10. any week for which workers' compensation payments for an illness or injury, other than a permanent settlement, have been or will be made^{Footnote 48} provided that such compensation relates to the loss of insurable employment or at least that it has precluded the payment of EI benefits^{Footnote 49};
11. any week, where by reason of incapacity, pregnancy, or for the care of one or more new-born infant or one or more children placed for the purposes of adoption^{Footnote 50}, a wage-loss insurance payment has been made or will be made^{Footnote 51}, provided that the indemnity relates to the loss of insurable employment or at least that it has precluded the payment of EI benefits^{Footnote 52};
12. any week, where payments have been or will be made due to the preventative withdrawal of work^{Footnote 53}, and provided that the indemnity relates to the loss of insurable employment or at least has precluded the payment of EI benefits^{Footnote 54};
13. any weeks of income support under TAGS, other than support for early retirement for self-employed and other fishers and plant workers for two years after the last week for which TAGS benefits will be paid.

Any employments prior to January 1, 1997, as well as any of the conditions listed above, are converted from weeks to hours by multiplying the number of weeks by 35^{Footnote 55}.

The total number of hours counted as labour force attachment can be a combination of the above-mentioned situations^{Footnote 56}. However, if the claimant has more than one situation in any one week, the claimant is credited with the situation that has highest number of hours in that week (i.e.: no "doubling up" of the situations). For example, the claimant worked 36 hours in insurable employment, received one day of temporary total Workers' Compensation Benefits (WCB) and received a partial week of EI benefits all in one week. The claimant would only be credited with 36 hours labour force attachment due to the insurable employment, as this is the greater amount of hours (the WCB and EI benefits would only equal 35 hours based upon the conversion factor^{Footnote 57}).

In the context of the implementation of the Quebec Parental Insurance Plan on January 1, 2006, a provision added²⁴ to the regulation dealing with prescribed hours and weeks^{Footnote 58} provides that any week for which provincial benefits - such as QPIP benefits - are paid during the NERE period will be equivalent to 35 prescribed hours that relate to employment in the labour force^{Footnote 59}.

[ September 2006 ]

[ June 2003 ]

1.2.6 Regional rate of unemployment

In order to calculate the regional rate of unemployment, the country has been divided into a number of regions as listed in the Regulations^{Footnote 60}. The regional rate of unemployment applicable to a claimant is the average of the seasonally adjusted monthly rates for the last three month period for which Statistics Canada has produced statistics and which precede the week of the commencement of the benefit period^{Footnote 61}. The seasonally adjusted monthly rate of unemployment is based on the regional rate of unemployment produced by Statistics Canada, which incorporate an estimate of the rates of unemployment of status Indians living on Indian reserves^{Footnote 62}.

For the purposes of establishing a benefit period, as well as the maximum number of weeks for which benefits, other than special benefits^{Footnote 63}, may be payable, the region which must be taken into account is the one in which the claimant was ordinarily resident during the week in which the benefit period commences^{Footnote 64}. If, in this week, the claimant's ordinary place of residence was outside of Canada, then for the purposes of establishing a benefit period, the region to be taken into account is the one in which the claimant last held insurable employment in Canada^{Footnote 65}.

Where the ordinary place of residence or equally, the location of the last insurable employment held in Canada is so close to the boundary of a region so that it is unclear which of the two regional rates of unemployment would apply, the highest regional rate of unemployment is used^{Footnote 66}.

It is possible that a claimant may eventually have sufficient hours of insurable employment to establish a benefit period when there is an increase in the rate of unemployment in the region where he or she ordinarily resides. If a sufficient increase in the unemployment rate subsequently occurs, the claimant is advised by means of a personal notice.

1.2.7 Ordinary residence

The expression "ordinarily resident" is not defined in the legislation^{Footnote 67}. Taking the meaning of the word "resident", it must refer to the place in which a claimant has settled^{Footnote 68}. The modifier "ordinarily" clearly excludes from the definition any stay in a place in which a person has no intention of establishing residence.

Thus, in the case of a married person who is frequently employed away from home or is admitted to a hospital for a period of time, the ordinary residence of that person is the place in which the spouse and children reside^{Footnote 69}. This applies also to persons who maintain a common law relationship or whose family obligations thus attach them more to one place than another.

For an individual who lives alone or has no family obligations, the place in which that individual has settled is the place of ordinary residence; any stay in other locations, even of lengthy duration, does not change this^{Footnote 70}. Therefore, the claimant's stated residence is not always regarded as the ordinary residence.

A change in residence occurs when a person leaves an area with the intention of settling permanently elsewhere and takes along all personal belongings. Sometimes, even the place in which the person temporarily resides before settling permanently may be regarded as the ordinary residence.

It is also possible that the relevant region in which the address falls for postal purposes may be different than the residence. In this case, it is the residence location that is used for regional rate purposes.

1.2.8 Categories of claimants

Once a benefit period has been established, a claimant is regarded as a "major attachment claimant" when there are at least 600 hours of insurable employment in the qualifying period^{Footnote 71}. The claimant is regarded as a "minor attachment claimant" when there are less than 600 hours but the minimum number required has been met^{Footnote 72}.

Both major and minor attachment claimants may qualify for regular benefits^{Footnote 73}. However, only major attachment claimants may qualify for maternity^{Footnote 74}, parental benefits^{Footnote 75}, compassionate care benefits^{Footnote 76} and family caregiver benefits^{Footnote 77}.

A major attachment claimant qualifies for sickness benefit even if the cessation of employment was due to incapacity. A minor attachment claimant who ceases to work due to incapacity is not entitled to sickness benefits^{Footnote 78}.

[ October 2013 ]

[ July 2013 ]

[ September 2006 ]