Digest of Benefit Entitlement Principles   Chapter 21 - Section 4

21.4.0 Who proves what

21.4.1 Responsibilities of the claimant and the Commission

There are many instances in the Act where a statutory requirement or a specific mention in the legislation determines which party is obliged to provide proof on a claim. For example, the Regulation Footnote 1 states that a claimant who alleges an incapacity for work is required to furnish a certificate completed by a medical doctor or other medical professional attesting to the claimant's incapability to work. Quite clearly, the claimant must provide proof to be eligible for sickness benefits. When the proof is not provided, there can be no eligibility.

However, in the case of false or misleading statements, jurisprudence consistently maintains that the Commission bears the full weight of proof and is responsible for confirming that the person not only made false or misleading statements but also made them knowingly Footnote 2 . The Act Footnote 3 provides for imposition of a penalty in these instances. For example, when a claimant fails to report earnings on the report form, that report form is evidence that a false statement was made. However, before a penalty can be imposed the Commission must prove that the claimant knew that his or her statement was false.

Objective questions such as "Did you work?" are generally easier to prove because they are based on tangible facts, e.g. earnings. Subjective questions such as availability are more difficult to prove, but in either case, the claimant must be given the opportunity to explain the statement: when the explanation is credible, it cannot be concluded that the statement was intended to mislead; when the reverse is true, the claimant becomes subject to a penalty.

In all cases a thorough review of all available material relevant to the matter, including the verification and assessment of the credibility of the evidence must take place. Only then will the agent, using judgement, logic, and experience, make a decision.

21.4.2 Common situations and the proof required

A summary of some of the most common situations where proof, what constitutes proof, and who must provide the proof is an issue follows. This is intended only as a summary, each situation is covered in-depth throughout the Digest of Benefit Entitlement Principles (cross-references indicated).

21.4.3 Proof of an interruption of earnings

The Regulation Footnote 4 defines when, following a period of employment with an employer, an insured person has or is deemed to have, an interruption of earnings.

The claimant must submit a record of employment to support the interruption of earnings. Failure to do so is regarded as failure to prove that an interruption of earnings has occurred Footnote 5 , 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.

The Digest reference for proof of an interruption of earnings and exceptions is Chapter 2 Footnote 6 .

21.4.4 Antedating of an initial claim

The Act Footnote 7 unequivocally places on the claimant the onus of proving good cause for the delay in making the initial claim.

The reasons and circumstances surrounding the delay in making the claim must constitute good cause under the Act. A claimant demonstrates good cause when able to show that he or she took action that any reasonable person would take in a similar situation to ensure awareness of his or her rights and obligations under the Act.

The Digest reference for proof with respect to antedating of an initial claim is Chapter 3 Footnote 8 .

21.4.5 Week of unemployment

The onus is on the claimant to prove that he or she was unemployed during any week for which benefit is claimed.

The claimant must provide any relevant information or documentation that the Commission deems necessary in his or her case; otherwise payment of benefit may be denied.

The Digest reference for proof with respect to a week of unemployment is Chapter 4 Footnote 9 .

21.4.6 Earnings

The claimant is required to report and describe all moneys paid or payable and all non-pecuniary considerations given. It is up to the agent to determine if the moneys received constitute earnings pursuant to the Regulations and if so, allocate them accordingly.

The Digest reference for proof with respect to earnings and allocation of earnings is Chapter 5.

21.4.7 Voluntarily leaving employment with just cause

A claimant who voluntarily left his or her employment must provide reasons for that decision and show that the decision was justified within the meaning of the Act. The claimant must show that leaving was the only reasonable alternative in the circumstances. The agent will provide an opportunity to the employer to provide information as to the reasons for the loss of employment and where any such information is provided, take it into account in determining the claim Footnote 10 .

The Digest reference for voluntarily leaving employment with just cause is Chapter 6. It is suggested that the entire chapter be referenced.

21.4.8 Misconduct

It is the responsibility of the agent to gather all of the information required to determine whether or not the claimant lost his or her employment by reason of his or her own misconduct. The agent will obtain the information needed to make a decision from the claimant, the employer, and if necessary, from those directly involved or eyewitnesses to the events.

The Digest reference for misconduct is Chapter 7. It is suggested that the entire chapter be referenced.

21.4.9 Labour disputes

The claimant bears the onus of proof of entitlement to benefits and must show that his or her case is not subject to the legislative provisions relating to labour disputes, that these cannot apply given his or her specific situation, or that they no longer affect his or her entitlement.

The Commission is responsible for assembling and reviewing all relevant information on the dispute. Before ruling on the claimant's entitlement, the elements that will result in disentitlement Footnote 11 to benefits as well as the exempting conditions Footnote 12 must be considered.

The Digest reference for proof with respect to labour disputes is Chapter 8 Footnote 13 .

21.4.10 Refusal of employment

The Act specifically stipulates that the claimant must prove that no circumstances or conditions exist that have the effect of disqualifying him from receiving benefit Footnote 14 . When there is an indication that employment was refused, the agent will initiate fact finding and make a decision after considering whether or not there was a refusal of suitable employment with or without just cause.

The Digest reference for proof with respect to refusal of employment is Chapter 9 Footnote 15 .

21.4.11 Availability

The Act clearly and specifically requires claimants to prove their availability for work Footnote 16 . Availability must be proven on a day-to-day basis.

The agent may consider a statement from the claimant as sufficient proof of availability for the first weeks of unemployment, provided there are no apparent restrictions connected with the claimant's willingness to accept work or with his or her employability.

As the period of unemployment gets longer, the claimant may be required to provide a detailed account of his or her efforts to find work and the results of these efforts, as well as clarify any restrictions which may be reducing his or her employment opportunities.

The Digest reference for proof with respect to availability for work is Chapter 10 Footnote 17 .

21.4.12 Sickness benefits

In order to establish eligibility for sickness benefits the claimant must demonstrate that he or she is incapable of work by reason of a prescribed illness or injury, and would otherwise be available for work.

Exception: Claimants in receipt of EI parental benefits who wish to convert their parental benefits to sickness benefits, and who provide proof of incapacity, are exempt from proving they are otherwise available for work.

The claimant may be required to provide a medical certificate completed by his or her physician or appropriate medical authority, as proof of the inability to work.

The claimant is required to provide a medical certificate as proof of the inability to work completed by his or her physician or appropriate medical authority.

The Commission has medical advisers available to act as resource persons for those complex or ambiguous questions that require a medical opinion or recommendation.

The Commission also has full authority to require the claimant to undergo an independent medical examination if it considers it appropriate to do so in order to prove incapacity. Failure to comply may be a ground for denying benefits.

Referral by the agent to a medical adviser, of referral of the claimant to an independent medical examination occurs only when it is considered necessary so as to counterbalance certain information on file, to answer questions on the state of the claimant's health, or to clarify cases of incapability that are complex, ambiguous or contradictory.

Because sickness benefits are limited to persons who would be entitled to regular benefits were it not for their illness or injury; the claimant must also prove that he or she would have been otherwise available for work (other than while receiving parental benefits). Availability will be determined in the same way as if the person was capable of work, i.e. reason for separation, personal situation, intentions, requirements and restrictions in relation to the labour market Footnote 18 .

Sickness benefits and what constitutes proof in these situations are discussed in Chapter 11 Footnote 19 .

[ March 2013 ]

21.4.13 Maternity benefits

In the case of a claim for maternity benefits the onus is on the claimant to provide a statement advising of her pregnancy and her expected or actual date of confinement.

[ October 2013 ]

21.4.14 Parental benefits

For parental benefits, a declaration by the claimant advising the infant's date of birth or for the purposes of adoption, their intent to adopt as well as the placement date and the name and address of the adoption authority is accepted as proof Footnote 20 .

[ October 2013 ]

21.4.15 Compassionate care benefits

In order to receive compassionate care benefits, medical proof must be furnished to the Commission indicating that the gravely ill family member has:

  1. a serious medical condition with a significant risk of death within 26 weeks, and
  2. requires the care or support of one or more family members.

[ October 2013 ]

21.4.16 Family Caregiver benefits (FCB)

FCB benefits require medical proof signed by a medical doctor or nurse practitioner which states that:

  1. the patient is critically ill and requires the care or support of one or more of their family members; and
  2. sets out the period during which the patient requires that care or support.

[ October 2013 ]

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