Digest of Benefit Entitlement Principles Chapter 2 - Section 1

2.1.0 Authority

The Employment Insurance Act sets up an insurance scheme under which the beneficiaries are protected against the loss of income resulting from unemployment. The purpose of the scheme is obviously to compensate unemployed persons for a loss; it is not to pay benefits to those who have not suffered any loss ^{Footnote 1} .

That loss is legally referred to as an interruption of earnings ^{Footnote 2} and the Act provides for the making of regulations to further define earnings ^{Footnote 3} . Under the regulatory power, what constitutes earnings has varied from time to time ^{Footnote 4} . An interruption of earnings is one of the conditions that must be met in order to receive benefits ^{Footnote 5} .

2.1.1 Definition

The interruption of earnings of a claimant is defined as, that interruption, which occurs in the earnings at any time and in any circumstances as, determined by the regulations ^{Footnote 6} . This definition, contained in the legislation, upholds any regulated prescription on the issue ^{Footnote 7} and should eliminate the debates caused by the previous definition ^{Footnote 8} .

The prescribed regulation ^{Footnote 9} thus provides at what time and in what circumstances an interruption of earnings occurs. The text of the regulation stipulates that ^{Footnote 10} :

• Subject to subsections (2) to (7), an interruption of earnings occurs where, following a period of employment with an employer, an insured person is laid off or separated from that employment and has a period of seven or more consecutive days during which no work is performed for that employer and in respect of which no earnings that arise from that employment, other than earnings described in subsection 36(13), are payable or allocated.

The exceptions to this general regulation occur in the situations where the claimant:

• ceases to work in that employment by reason of illness, injury, quarantine, pregnancy, or the need to care for a new born or a child placed for the purpose of adoption ^{Footnote 11} ;
• regularly works a greater number of hours, days or shifts than are normally worked in a week by persons employed in full-time employment and is entitled, pursuant to an employment agreement, to a period of leave ^{Footnote 12} ;
• is employed under an employment agreement under which the usual remuneration for that employment is payable in respect of a period greater than a week, regardless of the amount of work performed in that period ^{Footnote 13} ;
• is engaged or employed in the sale or purchase of real estate on a commission basis and holds a license to sell real estate issued by a provincial authority ^{Footnote 14} ;
• is employed under an employment agreement and whose earnings from that employment consist mainly of commissions ^{Footnote 15} .

Each of these situations has their own specific provisions and will be dealt with later in this chapter. Added to this is a provision that deals with a person employed in work sharing employment ^{Footnote 16} .

2.1.2 Scope

An interruption of earnings is required to establish a benefit period. Any interruption of earnings during the qualifying period may be used for this purpose.

The interruption of earnings of a minor attachment claimant is no longer the factor used in determining the claimant's entitlement to sickness benefits. Instead, what must be determined in that case, is whether the claimant ceased work because he or she became incapable of work by reason of illness, injury or quarantine. In such a case the claimant is not entitled to receive benefit while incapable of work for that reason ^{Footnote 17} .

2.1.3 Proof

A claimant's failure to submit the Record of Employment (ROE) will be regarded as failure to prove that an interruption of earnings has occurred ^{Footnote 18} , unless the evidence indicates the employer failed to issue the Record of Employment at the proper time and the claimant has made reasonable efforts to obtain it.

Under a regulatory clause ^{Footnote 19} , the Record of Employment shall be delivered to the insured person not later than five days after the later of

1. the first day of the interruption of earnings, and
2. the day on which the employer becomes aware of the interruption of earnings.

An employer may have issued the Record of Employment to 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 period set by the legislation, the Commission will not establish a benefit period as an interruption of earnings has not occurred.

However, where the Commission becomes aware, after the benefit period has been established that the claimant had returned to work for the same employer before the end of the seven day break period set by legislation, the Commission will only reconsider the decision that led to the conclusion that an interruption of earnings had occurred if there is evidence that the employer issued the Record of Employment knowing that the claimant would return to work within seven days.

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 not return to work for 7 or more days but was called back unexpectedly.

[ February 2004 ]