Digest of Benefit Entitlement Principles Chapter 24 - Section 10

24.10.0 Entitlement to benefits

Having successfully established a claim for EI self-employment special benefits does not mean that payment of the requested benefit type(s) is automatic. While the condition of whether a claim may be established is objective and based entirely on legislated requirements, the latter, i.e., payment of benefits, is not. Whether one is entitled to receive benefits depends on the entitlement conditions required to receive the benefit type requested. Unlike the requirements necessary to establish a benefit period, where the qualifying conditions are the same regardless of the type of benefits requested, entitlement conditions vary depending on the specific type of special benefits. For example, sickness benefit payment first requires the provision of a medical certificate Footnote 1 , which is not the case in order to receive maternity benefits.

Further, the determination of entitlement, although foundationally based in the legislation, also requires consideration of a claimant's unique situation. In adjudicating entitlement to self-employment special benefits, the legislation provides the legal tests; jurisprudence provides the guiding principles and consideration for each claimant's specific circumstances is considered in rendering any decision.

24.10.1 Disentitlement

Under the Employment Insurance legislation, the term "disentitlement" has a specific meaning and refers to the situations described in the legislation that result in the non-payment of benefits as a result of one or more required conditions not being met Footnote 2 .

24.10.1.1 Effect of disentitlement

Generally, a disentitlement is applicable on a day-to-day basis, and no benefits can be paid for any day to which a disentitlement is applied. A one-day disentitlement, therefore, carries a value of one-fifths (1/5th) the weekly rate of benefit as EI is payable from Monday to Friday of any given week.

In practice, a disentitlement may be imposed for an indefinite period of time commencing on any working day of the week, and continues as long as the situation remains unchanged. Whenever a change occurs, a decision can then be made as to whether it warrants terminating the disentitlement or rescinding it completely.

When a disentitlement covers a full week, it can be regarded as delaying the payment of benefit within a benefit period without reducing the maximum number of weeks payable. However, once the benefit period terminates, no further entitlement to benefit from that period remains Footnote 3 . Moreover, this may mean that a lengthy period of disentitlement, in fact, effectively reduces the number of weeks of benefits paid to a claimant Footnote 4 .

24.10.2 Length of disentitlement

The legislation does not provide for a half-day disentitlement Footnote 5 . When it is determined that a claimant should be disentitled, the disentitlement must be applied for a minimum of one day; otherwise, none must be applied.

Extenuating circumstances cannot reduce a period of disentitlement. The starting date of the disentitlement may be determined ahead of time, for example, in cases of an intended absence abroad that does not meet the provisions to allow benefits while out of Canada Footnote 6 . However, the end of the disentitlement period cannot be pre-determined since another ground may arise in the meantime or the same ground may continue to prevail longer than initially expected.

For the purposes of self-employment special benefits, a disentitlement continues as long as the ground sustaining it continues to exist. However, a new ground generally calls for a new decision.

A disentitlement from benefits in general may be brought about by several concurrent reasons; then, there are really several disentitlements and no benefit can be paid as long as one of them continues.

24.10.3 Grounds for disentitlement

Some of the following situations automatically result in disentitlement whereas others are not specifically defined:

  1. no week of unemployment Footnote 7 ;
  2. failure to prove incapacity for work in the case of sickness benefits Footnote 8 ;
  3. failure to prove one would be otherwise working Footnote 9 ;
  4. confinement in a prison or similar institution Footnote 10 ;
  5. being out of Canada Footnote 11 ;
  6. delay in making a renewal or continuing claim Footnote 12 ;
  7. failure to provide information upon request Footnote 13 ;
  8. not entitled to compassionate care benefits Footnote 14 ;
  9. not entitled to parental benefits Footnote 15 ;
  10. not entitled to family caregiver benefits Footnote 16
  11. having received or being entitled to receive provincial benefits in respect of the birth Footnote 17 or the adoption of a child under a provincial plan Footnote 18 .

There are four circumstances where a disentitlement could apply regardless of the type of benefits sought. Being out of Canada applies to all claimants, however there are some notable exceptions depending on the benefit type sought. One's incarceration is another disentitlement which applies to all benefit types, as does the condition of not meeting the definition of a week of unemployment. These three potentially disentitling conditions are detailed below. A fourth disentitlement may be imposed for delaying in making a renewal or a continuing claim, using the adjudication principle of good cause for antedate request Footnote 19 . For those disentitlements which relate specifically to a benefit type, they are addressed in detail in this Chapter under the relevant special benefit to which they apply.

[ September 2013 ]

24.10.4 Disentitling condition: No week of unemployment

While an interruption of earnings Footnote 20 must be experienced in order to be able to establish a claim for benefits in the first instance, a week of unemployment must also be present for each and every week where EI benefits are sought. The legal definition Footnote 21 of a week of unemployment contains the same criteria as that of an interruption of earnings, that is:

"…a week of unemployment for a self-employed person is…a week in which the person reduces the time devoted to their business activities by more than 40% of the normal level."

The legislation goes on to say that a self-employed person is deemed to be not working if they are not engaged in the normal activities of their business; and the normal activities for the continuation of their business Footnote 22 .

Therefore, the definition of a week of unemployment for a self-employed claimant provides flexibility in the event that some work in the business must continue to be performed at the same time benefits are required. Nonetheless, where ones' business activities increase beyond this threshold, a week of unemployment is not proven and therefore the disentitling condition of being 'not unemployed' is to be applied.

24.10.5 Disentitling condition: When out of Canada

Sub-section 37(b) of the EI Act addresses the issue of a claimants' entitlement to benefits despite being out of Canada succinctly:

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

  1. is not in Canada."

This passage clearly allows for exceptions, and there are some.

The EI Regulations contain the conditions under which a claimant may be eligible for benefits. In some cases, the type of benefits requested will dictate the exceptions to being disentitled from benefits while out of Canada. These conditions are found elsewhere in this Chapter Footnote 23 .

There are other exceptions to being disentitled, however, and they are applicable to all claimants, regardless of benefit type. The Regulations stipulate that a claimant may remain entitled to benefits and be out of Canada for the following reasons:

  • for a period of up to seven consecutive days to attend the funeral of a member of the self-employed persons' immediate family or a family member named in the Regulations Footnote 24 ;
  • for a period of up to seven consecutive days to accompany a member of the self-employed person's immediate family to an accredited hospital, medical clinic or similar facility for medical treatment not readily or immediately available in the family member's area of residence in Canada Footnote 25 ; and
  • for a period of up to seven consecutive days to visit a member of the self-employed persons' immediate family who is seriously ill or injured Footnote 26 .

In cases where a claimant is out of the country to visit a relative who is seriously ill or injured, and during their absence from Canada, that family member passes away, the claimant may benefit from the exceptions under EIR 55(1)(b) and 55(1)(d), and potentially be entitled to benefits for 14 days while out of the country Footnote 27 .

[ December 2011 ]

24.10.6 Disentitling condition: Being an inmate in any prison or similar institution

The legislation dictates that a claimant is disentitled from benefits when imprisoned Footnote 28 . It does not matter what type of benefit is requested:

"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;…"

Therefore, one's personal situation forming the basis for the benefits requested (illness, maternity, etc.) is irrelevant in determining if one is entitled to benefits or not while incarcerated.

However, the exception mentioned in the above extract is stated in the Regulations as follows Footnote 29 :

"A self-employed person who is an inmate of a prison or similar institution and who has been granted parole, day parole or a temporary absence is not disentitled from receiving benefits by reason only of section 152.2 of the Act."

This prescription allows the payment of special benefits to individuals released from incarceration for the period of their release.

A further issue arises with respect to imprisonment and temporary granted absences from the institution, however as it applies to sickness benefits only; it is detailed under that type of benefit Footnote 30 .

24.10.6.1 Similar institution

The Act makes specific reference to a claimant who is an inmate of any prison or similar institution Footnote 31 . 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 their fitness to stand trial is not recognized as an institution similar to a prison Footnote 32 . The finding would be different if the stay in such an institution is part of a prison sentence.

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