AB v Canada Employment Insurance Commission

AB v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2024-10-08 Neutral citation 2024 SST 1618 Reference number GE-24-3249 Member Nathalie Léger Division General Division Decision Appeal dismissed Related decisions SST - AB v Canada Employment Insurance Commission - 2025 SST 15 - 2025-01-08 - Appeal Division Decision Content [TRANSLATION] Citation: AB v Canada Employment Insurance Commission, 2024 SST 1618 Social Security Tribunal of Canada General Division Employment Insurance Section Decision Appellant: A. B. Respondent: Canada Employment Insurance Commission Decision under appeal: Canada Employment Insurance Commission reconsideration decision (662941) dated August 21, 2024 (issued by Service Canada) Tribunal member: Nathalie Léger Type of hearing: Teleconference Hearing date: October 4, 2024 Hearing participant: Appellant Decision date: October 8, 2024 File number: GE-24-3249 On this page Decision Overview Issues Analysis Conclusion Decision [1] The appeal is dismissed. The Appellant received money. The Canada Employment Insurance Commission (Commission) correctly determined that the money is earnings under the Employment Insurance Act (EI Act) and allocated those earnings to the right weeks. Overview [2] The Appellant reached an agreement about his leaving with his former employer. This agreement says that the employer will pay him [translation] “the sum of fifteen thousand dollars ($15,000) as a retirement allowance.”Footnote 1 [3] The Commission decided that the money is “earnings” under the law. The law says that all earnings have to be allocated to certain weeks. What weeks earnings are allocated to depends on why you received the earnings.Footnote 2 [4] The Appellant disagrees with how the Commission classifies the money received. He says that the money isn’t earnings because it is a repayment of the contributions he made to a deferred profit sharing plan (DPSP).Footnote 3 [5] The Appellant doesn’t dispute how the money was allocated, only how the money was classified before that allocation. Issues [6] I have to decide the following two issues: a) Is the money that the Appellant received earnings? b) If the money is earnings, did the Commission allocate the earnings correctly? Analysis Is the money that the Appellant received earnings? [7] Yes, the $15,000 that the Appellant received is earnings. Here are my reasons for deciding that the money is earnings. [8] The law says that earnings are the entire income that you get from any employment.Footnote 4 The law defines both “income” and “employment.” [9] Income can be anything that you got or will get from an employer or any other person. It doesn’t have to be money, but it often is.Footnote 5 [10] Employment is any work that you did or will do under any kind of service or work agreement.Footnote 6 [11] The Appellant has to prove that the money is not earnings. The Appellant has to prove this on a balance of probabilities. This means that he has to show that it is more likely than not that the money isn’t earnings. [12] The Appellant received $15,000 from his former employer. The Commission decided that this money is earnings under section 35(2) of the Employment Insurance Regulations (EI Regulations) since the payment was made because he was separated from his job.Footnote 7 So, the Commission said that this money is earnings under the law. [13] The Appellant disagrees. He says that the money isn’t earnings because it is money that his employer owes him. The Appellant explained to the Commission and the Tribunal that he was paying into a DPSP. He said that after he was separated from his job, he got a statement showing that his DPSP balance was zero. Although he can’t keep the money paid by the employer because he worked for the company for less than two years, he should be able to keep the money that he himself paid into the plan. [14] When he reached an agreement with the employer, it was clear to him that the money he would get was really a repayment of what he had paid into his DPSP up to that point. He testified that he said yes to his lawyer on the amount of the agreement, but that he wasn’t involved in writing it. [15] The Appellant uses section 35(7)(d) of the EI Regulations to argue that retirement payments should not count as income.Footnote 8 But this section refers to “retroactive increases in wages or salary” and doesn’t apply in this case. [16] The Appellant also uses section 147(2) of the Income Tax Act to argue that the money paid into a DPSP was already taxed. So, it should not count as earnings under the EI Act.Footnote 9 This argument doesn’t work because the Income Tax Act and the EI Act are separate. Each law has its own rules and definitions, and one doesn’t affect how the other applies. [17] Finally, the Appellant points to section 7 of the EI Act, saying that it [translation] “defines the types of earnings subject to contributions.”Footnote 10 But section 7 of the EI Act doesn’t cover that. It sets out the conditions for receiving benefits and isn’t part of this case. [18] After carefully analyzing the exceptions set out in section35(7) of the EI Regulations and discussing them with the Appellant at the hearing, I find that none of them apply to his situation. [19] I find that the Appellant didn’t show that the money isn’t earnings under the EI Act. Even though I sympathize with the Appellant and see that his lawyer probably gave him poor advice, I don’t have the power to change the Act or make a decision based only on fairness. I have to apply the Act as it is written.Footnote 11 Did the Commission allocate the earnings correctly? [20] The law says that earnings have to be allocated to certain weeks. What weeks earnings are allocated to depends on why you received the earnings.Footnote 12 [21] The Appellant’s earnings are a retirement allowance. The employer paid the Appellant as part of a separation agreement.Footnote 13 [22] The law says that the earnings you get for being separated from your job have to be allocated starting the week you were separated from your job. It doesn’t matter when you actually receive those earnings. The earnings have to be allocated starting the week your separation starts, even if you didn’t get those earnings at that time.Footnote 14 [23] The Appellant doesn’t dispute how the earnings were allocated, and I have no reason to think he has any issue with it. So, I find that the Commission allocated the earnings correctly. Conclusion [24] The appeal is dismissed. Footnotes Footnote 1 See GD3‑17. Footnote 2 See section 36 of the Employment Insurance Regulations (EI Regulations). Footnote 3 See GD2‑1. Footnote 4 See section 35(2) of the EI Regulations. Footnote 5 See section 35(1) of the EI Regulations. Footnote 6 See section 35(1) of the EI Regulations. Footnote 7 See GD4‑5. Footnote 8 See GD2‑2. Footnote 9 See GD2‑1. Footnote 10 See GD2‑19. Footnote 11 See Canada (Attorney General) v Hamm, 2011 FCA 205; and Pannu v Canada (Attorney General), 2004 FCA 90. Footnote 12 See section 36 of the EI Regulations. Footnote 13 See GD3‑16 and following. Footnote 14 See section 36(9) of the EI Regulations.