Digest of Benefit Entitlement Principles Chapter 1 - Section 3

1.3.0 Extension of qualifying period

Claimants must work a minimum number of insurable hours in their qualifying period to be eligible for benefits. Claimants who were prevented from working in insurable employment, due to one of several grounds, during any week of their qualifying period, may have their qualifying period extended. An extension cannot be granted for any week during which one of these grounds applied, if the claimant was in receipt of EI benefits or Quebec Parental Insurance Plan benefits for that same week.

An extension of the qualifying period can make the difference between whether or not a claimant has sufficient insurable hours to qualify, and can affect the number of weeks of benefits a claimant may receive. An extension of the qualifying period may also allow a claimant to qualify to receive special benefits.

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 (EI Act 8(2)).

The qualifying period may never be extended beyond the start date of any prior benefit period (EI Act 8(1)(b)), and the extended qualifying period may not exceed 104 weeks in total (EI Act 8(7)).

1.3.1 Grounds for extension

The qualifying period may be extended when claimants are able to show that they were prevented from working due to one of the following (EI Act 8(2)):

  1. incapable of work because of an illness, injury, quarantine, or pregnancy;
  2. confined in a jail, prison or similar institution and not found guilty of the charge(s) that led to the confinement;
  3. receiving assistance under employment benefits;
  4. receiving payments under a provincial law for preventative withdrawal.

The common rationale in these four grounds is incapability of working in insurable employment due to external circumstances beyond one's control.

An extension of the qualifying period may be granted on any of these four grounds, provided one of the grounds occurred totally or partially during the period that may be extended, i.e. the 52 weeks of the qualifying period.

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. Extensions have been denied to claimants who worked reduced hours while awaiting surgery (CUB 64198), , who were taking courses on their own initiative (CUB 53428), who were absent from Canada for some time (CUB 75264), or who were unemployed by reason of a strike or lock-out (CUB 53548). Incapacity for work

The incapacity for work that qualifies for extension purposes must be an illness, injury, pregnancy or quarantine that has made the claimant incapable of performing the duties not only of their regular or usual employment, but also any other suitable employment (EI Regulations 40(4), 41(2).

The claimant must be able to provide medical proof as to the illness and the resulting incapacity, if requested by the Commission (CUB 73770). The same applies in the case of incapacity resulting from pregnancy, injury or quarantine.

Incapacity of a family member that requires the claimant's presence at home and prevents the claimant from being employed in insurable employment is not sufficient; it is the claimant's own incapacity for work or quarantine that must be considered (CUB 63413). Confinement in a prison or similar institution and not found guilty of the charge(s)

In order to qualify for an extension on this ground the claimant must have been confined in a jail, penitentiary or other similar institution and be able to provide proof that they were not found guilty of the offence(s) that led to the confinement. This could mean that the charges were later withdrawn, or the claimant was in fact found not guilty, and therefore not convicted (EI Act 8(2)(b)).

To qualify for this extension the claimant must provide a letter from the institution in which they were incarcerated, to prove the actual dates of incarceration. The claimant must also provide proof that they have not been found guilty of the charge(s). A letter from a claimant’s lawyer or the provincial/territorial/federal court to prove that they were not found guilty of the offence(s), and confirming that the time served is not being credited to any other charges, is acceptable proof. A “charging document" by itself is insufficient proof, as it does not reflect whether other charges are pending.

If there is a stay of proceedings, or if the charges for which the claimant was held are withdrawn, and there is no finding of guilt, the claimant is considered not to have been found guilty. In addition, if the time period during which the Attorney General can resume the proceedings has elapsed, and therefore the proceedings will no longer be pursued, the claimant would then be entitled to an extension, as they would not be found guilty.

The claimant must not be found guilty of, not only the offence for which they were detained, but also any other offences related to the same event/incident (e.g. plea bargains or new evidence). When a claimant is held for multiple offences, they must not be found guilty of any of the offences for which they were detained. Receiving assistance under employment benefits

The purpose of this ground for extension is to disregard the period of time during which a person attends a course that was referred by the Commission or its designated authority (EI Act 8(2)(c)). This allows for insured hours in the extended portion of the qualifying period to be added to the hours in the qualifying period, which may otherwise not be sufficient to establish a benefit period.

For example, a claimant who requires 700 hours of insurable employment, and was employed in insurable employment for 580 hours in their qualifying period, would not have sufficient hours to establish a benefit period. If, during their qualifying period, this claimant had taken a ten-month training course, approved by a designated authority, while receiving a training allowance, the qualifying period would be extended by ten months. Any hours worked during the extended qualifying period would be added to the 580 already worked, which could potentially allow the claimant to establish a benefit period.

It must be kept in mind that claimants who have been referred to a course or other employment related activity and who are in receipt of Part I benefits (i.e. EI benefits) are not eligible for an extension of the qualifying period. In the above example, as the person was in receipt of a training allowance and did not receive EI benefits, an extension could be granted.

The period for which the extension applies starts from the week the claimant actually started 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 from the week the referral is effective, provided the claimant was not employed in insurable employment that week.

Part II benefits may be paid to individuals who are not able to establish a benefit period or whose benefit period has expired (EI Act 58). In these cases, as there was a referral to a course of instruction or other employment related activity by the Commission or a designated authority, and no EI benefits were paid, an extension of the qualifying period may be applicable. Receiving payments for preventative withdrawal work

Any week in which a person was in receipt of payments under a provincial law for having stopped work because continuing to work would have caused danger to the claimant, the claimant's unborn child, or a child she is breast feeding, would be counted as a week for the purposes of extending the qualifying period (EI Act 8(2)(d)).

In order to prove such a situation, the claimant is required to provide documentation that specifies the exact nature of the payments, as well as the period for which these payments were made.

1.3.2 Periods not counted for qualifying period extensions

The following weeks are considered weeks of benefits paid or weeks containing insurable employment. Even if 1 of the 4 grounds detailed in section 1.3.1 is present, these weeks are not considered for a qualifying period extension (EIA 8(5)).

These are all weeks in which:

  • at least $1 of EI benefits was paid
  • a definite disqualification was served
  • Benefits were used to reimburse an overpayment or a penalty under EIA 38
  • benefits were withheld for an assignment of benefits
  • benefits were withheld pursuant to a Family Order Agreement, or
  • claimant received provincial benefits for a birth or adoption, such as Quebec Parental Insurance Plan (QPIP) benefits

Employer-paid leave, such as wage loss insurance (WLI) payments, may or may not be insurable. When insurable, employees are deemed to be working in insurable employment and are accumulating the number of insurable hours they would normally have accumulated had they worked during the leave period. This is true regardless of whether the earnings received during that period are less than they would normally receive (EIR 10.1(1)).

For the purposes of extending the qualifying period:

  • during weeks in which leave payments are determined to be insurable, the qualifying period cannot be extended as the claimant is considered to have insurable employment in those weeks
  • where leave payments are not insurable, the qualifying period is extended because there is no insurable employment in those weeks and the claimant meets the condition of being incapable of working due to a prescribed illness, injury, quarantine or pregnancy (EIA 8(2))

When there is doubt about whether an employer-paid leave is insurable, an insurability ruling must be requested from the Canada Revenue Agency (CRA), as it has the sole authority to make determinations on the insurability of employment or other payments.

1.3.3 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 during a particular period. One reason may constitute a valid ground for extension of the qualifying period while the other may not. The fact that one of the grounds exists is sufficient.

For example, 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.

1.3.4 Calculation of the extension

Once the acceptable period for extension has been determined, the number of 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 one of the four grounds for extension actually prevented the claimant from either holding insurable employment or from actively seeking employment, at any time during that week. Any week for which EI benefits were paid, or deemed paid, even if only for one dollar, cannot be included (EI Act 8(5); Digest 1.9.6).

The qualifying period is then extended by the number of weeks calculated. Other grounds for extension may exist at other times during the 52 weeks of the normal qualifying period, or during the extended period. In these cases, the same procedure is used to further extend the qualifying period (EI Act 8(4)). In all cases, the qualifying period may not be extended beyond the start date of any previous benefit period, or beyond the maximum 104 week qualifying period (EI Act 8(7)).

[October 2018]

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