Digest of Benefit Entitlement Principles Chapter 8 - Section 10

8.10.0 Suspension of the disentitlement

Under certain conditions, a disentitlement can be suspended during any period where the claimant proves they are otherwise entitled to other types of benefits (Digest 8.10.1).

8.10.1 Otherwise entitled to benefits

The suspension of the disentitlement is only possible during a period for which the claimant proves they are otherwise entitled to benefits for one of the following reasons:

• pregnancy,
• caring for a new-born or a child placed for the purposes of adoption,
• providing care or support to a family member with a serious medical condition,
• illness, injury, or quarantine, or,
• attending a course or employment activity to which the claimant was referred by a designated authority of the Commission (EI Act 12(3) and EI Act 25).

It is important to know the reasons why the claimant is requesting benefits during a period of disentitlement due to a labour dispute. Suspension of the disentitlement is not considered if the reason is not one of those mentioned above.

The first step is to determine whether the claimant is otherwise entitled to benefits for the reasons stated, despite the work stoppage. The claimant must first meet the qualifying conditions for the type of benefits being requested, such as having accumulated the required number of hours of insurable employment, and having any documents to support their declarations for the period during which benefits are requested. A minor attached claimant (has less than 600 hours in their qualifying period), for example, cannot receive maternity (EI Act 22(1)), parental (EI Act 23(1)), compassionate care (EI Act 23.1(1)) or family caregiver (child and adult) benefits (EI Act 23.2(1) and EI Act 23.3(1)). The same would apply to a claimant who has already received the maximum benefits payable for sickness (EI Act 12(3)) and subsequently requests additional weeks of these benefits, during the course of the stoppage of work.

The disentitlement imposed as a result of a labour dispute would not be suspended in the case of a person who, during the work stoppage, is entitled to receive benefits from the Quebec Parental Insurance Plan. As a general rule, this person cannot prove that they are otherwise entitled to EI maternity or parental benefits (EI Regulation 76.09).

A claimant may provide several reasons during the benefit period, that would allow for the suspension of the disentitlement. For example, sickness benefits followed by maternity benefits followed by parental benefits. Each of these types of benefits must be examined separately with respect to their own conditions of entitlement.

The fact that a person would otherwise be entitled to benefits for the reasons mentioned does not guarantee that the disentitlement will be suspended. A supplementary condition provided in the legislative text must also be met, and is dealt with in the following heading.

8.10.2 Supplementary condition

A period of disentitlement cannot be suspended simply because there is a period during which a claimant could otherwise be entitled to other types of benefits (Digest 8.10.1). Pursuant to EI Act 36(3), the claimant must also meet a supplementary condition.

The claimant must prove that, before the work stoppage, they had

1. anticipated being absent from their employment because of the reason for which they are requesting benefits, and
2. begun making arrangements in relation to the absence.

The supplementary condition does not come into play when there is no period during which the claimant could otherwise be entitled to benefits.

Essentially, this supplementary condition disregards the stoppage of work and permits the claimant to receive another type of benefits when the absence was anticipated and arrangements for the leave had begun before the stoppage of work. This prevents access to benefits by those who may attempt to avoid disentitlement, during the course of the stoppage of work.

It is necessary to determine at what precise moment the stoppage of work occurred in order to accurately determine if the absence was anticipated and if arrangements for that absence had begun before the stoppage of work. This will be more complicated if at the claimant's place of employment there were several stoppages of work due to the same labour dispute and they were of varying duration. In this case it will be considered to be the stoppage of work which is tied to the disentitlement that the claimant is requesting be suspended.

This supplementary condition imposes two separate obligations on the claimant. Not only must there be proof that the absence from employment, for one of the reasons mentioned in the legislation, was anticipated, but also that arrangements for this absence had begun before the stoppage of work occurred. It is not necessary that the exact period of absence had been fixed or known before the start of the stoppage of work. An anticipated absence for reasons other than those mentioned, or which was not accompanied by concrete arrangements to this effect, will not fulfill this condition. The same is true when the arrangements were not in relation to the anticipated absence or only started during the course of the stoppage of work.

A statement from the claimant that arrangements were started is not sufficient to avoid a disentitlement. The claimant must substantiate the statements with documents, certificates and/or any other supporting information. For example, the claimant may show that they advised the employer before the stoppage of work, of the anticipated absence, or had at that time requested authorization for the absence. Such arrangements by themselves may not demonstrate that the claimant fulfills the supplementary condition on all points.

In fact, for the person who anticipates an absence from employment, these arrangements with the employer are, more often than not, the last thing the person does. Other arrangements, depending on the reasons for the absence from work, must be made and it is these arrangements that the claimant must furnish to the Commission as proof that they began before the stoppage of work. There is no requirement that the arrangements be finalized before the stoppage of work. It must also be realized that a person may have begun making arrangements without saying a word to the employer. The fact that a claimant has absented themselves from employment with or without the employer's authorization, or even, that the arrangements were made without the knowledge of the employer, does not change the fact that arrangements had begun.

It rests with the Commission to determine what constitutes acceptable proof that the claimant fulfills the supplementary condition

8.10.3 Acceptable proof

More than a simple statement is needed from the claimant, indicating that their absence from employment was anticipated and that arrangements to this effect had begun before the stoppage of work. It is essential that the claimant provide the relevant information, explanations and, when required, documents in support of such a statement, so that it could reasonably be concluded that they fulfilled the supplementary condition.

In the case of pregnancy, acceptable proof is the claimant's declaration as to her pregnancy and the actual or expected date of the child’s birth, submitted with the claim for benefits, as it establishes that the claimant was pregnant before the stoppage of work.

For those who are caring for a newborn child, acceptable proof may be a confirmation from the employer that a leave for such an absence had been anticipated and requested before the stoppage of work. A person could also demonstrate by their work history that the absence was anticipated and planned in order to take care of a newborn child, if this had been the case for an earlier birth. Moreover, a statement can also be accepted if it demonstrates that arrangements were in place before the stoppage of work, for a claimant to take a leave for a certain period of time, to care for the newborn child.

A statement from a medical practitioner could also establish that it was known, before the start of the stoppage of work, that a newborn child's state of health would eventually require one of the parents to be absent from work.

In the case of compassionate care leave, the claimant will be required to submit a medical certificate for compassionate care benefits attesting that a family member has a serious medical condition with a significant risk of death within 26 weeks and requires the care or support of one or more family members. Acceptable proof may be confirmation from the employer that the arrangements for the absence from work had begun before the stoppage of work.

Claimants requesting family caregiver benefits are required to submit a medical certificate signed by a medical professional. An attestation by the medical professional is required, indicating that the family member is critically ill or injured and requires the care or support of a family member. The medical must also indicate the period during which the family member is expected to require care or support.

With respect to illness, injury or quarantine, the claimant will be required to submit a medical certificate attesting that the absence was anticipated before the start of the stoppage of work and that some arrangements in that respect had begun before the stoppage of work. This refers strictly to an illness or injury for which an absence had been anticipated, be it for treatment, surgery or a stay in a detoxification centre, and in respect of which arrangements had begun before the start of the stoppage of work.

What is not included in this category is an illness or injury that was diagnosed before the stoppage of work, but before the start of the stoppage of work, it had not been anticipated that there would eventually be an absence from work. The same would apply in the case of an illness or injury which occurred before the start of the stoppage of work, but the claimant had not made any arrangements to be absent from employment until after the start of the stoppage.

It would however, be acceptable where the illness is related to a chronic or degenerative condition that results in episodic absences from employment, whose existence was known before the start of the stoppage of work.

For those attending a course or employment activity, it need only be confirmed by the designating authority that there was in fact a referral made to attend a course or employment activity, and that arrangements for participation had begun before the stoppage of work.

Finally, a vague possibility of an absence, without further specifics is not sufficient to arrive at the conclusion that the absence was anticipated. It is necessary that the elements of anticipation, planning and organization exist before the start of the stoppage of work in order for an absence to be considered as "anticipated" before the stoppage. The situation here is one where the claimant had begun making arrangements before the start of stoppage of work and the absence from employment had been one of the anticipated outcomes.

8.10.4 Period suspended

The suspension of a disentitlement will permit the payment of the type of benefits to which the claimant proves entitlement, regardless of the labour dispute in progress. The fact that there was participation, financing or direct interest will not have any bearing during the period where the claimant fulfills the legislative requirements relating to the suspension of the disentitlement (EI Act 36(3); Digest 8.10.1 and Digest 8.10.2).

The disentitlement will be suspended for as long as the conditions are met. Once the claimant is no longer otherwise entitled to another type of benefits during the benefit period, the disentitlement due to the labour dispute will automatically be re-imposed. Furthermore, as long as the legislative requirements are met, it is possible that there could be more than one period where the disentitlement is suspended during the course of the same labour dispute or benefit period.

The fact that a labour dispute disentitlement has been suspended will not prevent the labour dispute and the stoppage of work to follow their course, that a resolution between the two parties could occur, or even that the claimant, at a certain time, could meet the conditions of non-application (EI Act 36(4) and Digest 8.1.4). When the situation permits the termination of the disentitlement, the question of suspension becomes irrelevant.

The suspension of a disentitlement does not mean that the claimant will immediately receive the benefits claimed. During the period of suspension, a claimant may be required to serve the waiting period, another disentitlement, an allocation of earnings, or even a disqualification for benefits otherwise payable. No benefits can be paid until any or all of these have been served.

[April 2019]