Digest of Benefit Entitlement Principles Chapter 11 - Section 6

11.6.0 Sickness benefits with respect to other provisions of the Act

A claim for sickness benefits is unique regarding the impact that certain provisions of the Employment Insurance Act have during the period that the claimant may be in receipt of sickness benefits. These situations are covered in the sections that follow.

11.6.1 Fishing claims

Fishers can establish a claim for sickness benefits based on their insurable employment in fishing. They will be entitled to sickness benefits if they are major attached^{Footnote 1}, meaning they have $3,760 or more, of insurable earnings as a fisher, in their qualifying period. However, if a fisher has accumulated a violation, more than $3,760 ^{Footnote 2} of insurable earnings will be required.

Like other claimants, fishers are entitled to receive special benefits to a maximum of 102 weeks ^{Footnote 3} .

11.6.2 While disqualified or disentitled

The legislation provides that any disqualification will be deferred ^{Footnote 4} or suspended ^{Footnote 5} during the period that a claimant is in receipt of special benefits, including sickness benefits. There is also a provision stating that any disentitlement under sections 31 to 33 of the EI Act will be suspended to allow the claimant to receive any special benefits, including sickness benefits ^{Footnote 6} .

For the disqualification or the disentitlement referred to above to be deferred or suspended, the claimant must obtain and submit a medical certificate ^{Footnote 7} to the Commission. However, for sickness benefits to be payable, as stated in section 11.3.0 ^{Footnote 8} , even if a medical certificate is provided, the claimant is required to demonstrate that he would have been otherwise available if it had not been for the illness, injury or quarantine.

11.6.3 Labour dispute

A stoppage of work attributable to a labour dispute may affect entitlement to sickness benefits, depending on whether a person is already on sick leave when the stoppage of work occurs ^{Footnote 9} or the inability arises during the stoppage of work. The disentitlement in the latter case may, under certain conditions, be suspended during any period in which the person proves that he or she would have been otherwise available ^{Footnote 10} .

11.6.4 Teaching and non-teaching period

Sickness benefits are payable during the teaching period if the entitlement conditions are met. However, sickness benefits are not payable to teachers during any non-teaching periods unless one of the three conditions found in the regulation ^{Footnote 11} is met.

11.6.5 Being an inmate in any prison or similar institution

It is irrelevant whether a person would be able or unable to work in the situation described in the following provision ^{Footnote 12} :

Except as may otherwise be prescribed, a claimant is not entitled to receive benefits for any period during which the claimant

1. is an inmate of a prison or similar institution;
2. …

The EI Act does not provide for the payment of either sickness benefits or any other type of benefits ^{Footnote 13} to anyone who is an inmate of such an institution. Whether the inability in question already existed before the detention or occurred while the person was incarcerated is irrelevant.

The exception mentioned in the above extract is covered in the following provision of the Regulations ^{Footnote 14} :

A claimant who is an inmate of a prison or similar institution and who has been granted parole, day parole, temporary absence or a certificate of availability, for the purpose of seeking and accepting employment in the community, is not disentitled from receiving benefits by reason only of section 37 of the Act.

The question is therefore primarily one of availability in the labour market ^{Footnote 15} . We are not unfamiliar with this question, as we are well aware that the second entitlement condition for a person who is unable to work is to demonstrate that he or she would be otherwise available for work ^{Footnote 16} .

The fact that a person is an inmate in a prison or similar institution will not be used against the claimant's assertion of being available when he or she has been granted parole, day parole or temporary absence for the purpose of seeking and accepting employment. Sickness benefits will not be denied for the sole reason that the temporary absence has been suspended because the inmate is temporarily unable to work.

The Act refers to a claimant who is an inmate of any prison or similar institution. The test to be applied to determine whether another institution can be described as similar to a prison is whether or not the stay in such a place is for detention or punishment purposes. If that is not the case, it cannot be concluded that the institution is similar to a prison.

Thus, a psychiatric institution in which a person charged with a criminal offence had been interned to evaluate his or her fitness to stand trial is not recognized as an institution similar to a prison ^{Footnote 17} . The finding would be different if the stay in such an institution is part of a prison sentence ^{Footnote 18} .

11.6.6 Outside Canada

It happens from time to time that a person who is temporarily unable to work plans to spend part of his or her convalescence in milder climates outside Canada or, conversely, that a person who is outside Canada suddenly becomes unable to work. Both are entitled to ask whether the situation in question is detrimental to claiming sickness benefits.

It should be said right away that in this respect the EI Act has imposed the following rigorous provisions ^{Footnote 19} :

Except as may otherwise be prescribed, a claimant is not entitled to receive benefits for any period during which the claimant

1. …
2. is not in Canada.

The exception mentioned above is found primarily in the following provision of the Regulations ^{Footnote 20} :

… a claimant is not disentitled from receiving benefits for the reason that the claimant is outside Canada … for the purpose of undergoing, at a hospital, medical clinic or similar facility outside Canada, medical treatment that is not readily or immediately available in the claimant's area of residence in Canada, if the hospital, clinic or facility is accredited to provide the medical treatment by the appropriate governmental authority outside Canada.

Thus, with the exceptions of a person whose most recent interruption of earnings is from insurable employment outside of Canada ^{Footnote 21} and of a person who is absent for specified reasons and duration ^{Footnote 22} , it can be said in general terms that a person must satisfy two specific conditions in addition to the two entitlement conditions to sickness benefits ^{Footnote 23} .

The person who is outside Canada must in fact be undergoing medical treatment in a hospital, medical clinic or similar facility located in a country other than Canada, and the treatment as such must be medical treatment that is not readily available in the claimant's area of residence in Canada.

The Act leaves no room for other circumstances that could occur where a person might, for personal reasons or on the recommendation of a physician, have to stay outside the country, even with a medical certificate establishing the inability to work ^{Footnote 24} .

The prescription is not limited to a person whose inability to work arose before his or her stay outside Canada. It also applies to a person whose inability to work arose while he or she was outside the country. Both must show that they satisfy the two conditions specified in the Regulations.

The question whether the person proves that he or she would be otherwise available for work is always relevant in such a case ^{Footnote 25} .

It must be understood that the person must undergo the treatment in a hospital, medical clinic or similar facility in a country other than Canada, and that it must be a medical treatment that is not readily available in the claimant's area of residence in Canada. It must not be a miracle treatment or any kind of cure that is claimed to be the panacea for all illnesses, but a treatment that, while not necessarily conventional, may be seen as being relatively effective and is recognized by a scientific or medical authority ^{Footnote 26} .

There are several factors that might lead someone who is unable to work to undergo medical treatment in a country other than Canada. It might be due to, amongst others: the urgency of the situation as opposed to the immediate availability of the treatment in a Canadian health institution, the proximity of the residence to the treatment centre, the supposed quality of care, or the technological advancements and expertise of certain medical science authorities or clinics renowned for the treatment of certain illnesses or for certain procedures.

What is critical to determine is whether the treatment is a type that is not readily available in the claimant's area of residence in Canada. The agent will make that determination. It is not necessary that the claimant be hospitalised.

A facility outside Canada that offers a treatment prescribed in Canada is considered to be an accredited facility. The agent follows-up only when there is a reason to doubt the accreditation of the facility.