LS v Canada Employment Insurance Commission

LS v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2020-07-02 Neutral citation 2020 SST 664 Reference number GE-20-1607 Member Amanda Pezzutto Division General Division Decision Appeal dismissed Decision Content On this page Decision Overview Post-hearing documents Issues Analysis Conclusion Decision [1] I am dismissing the Claimant’s appeal. The Claimant has not shown that she had good cause for her delay in applying for benefits. She has not shown that she has enough hours to qualify for employment insurance benefits. Overview [2] The Claimant stopped working on September 28, 2018. She applied for employment insurance benefits about 18 months later, on March 19, 2020. The Canada Employment Insurance Commission (Commission) decided that the Claimant did not have enough hours to qualify for benefits. The Commission made this decision because it only looked at the hours the Claimant had worked in the past year. The Commission also refused to treat the Claimant’s application as if she had applied immediately after her last day of work. The Claimant asked the Commission to reconsider its decisions. The Commission did not change its decision. The Claimant appealed to the Tribunal. [3] I must decide whether the Claimant has proven that she had good cause when she delayed applying for benefits. The Commission says that the Claimant does not have good cause because she did not take any steps to learn more about her rights and obligations. The Claimant disagrees. She argues that she does not have any experience with the employment insurance program. She did not know that there was a time limit to apply. [4] I must also decide whether the Claimant has enough hours to qualify for benefits. The Commission says that the Claimant does not qualify for benefits because she does not have any hours during her qualifying period. The Claimant says that these are exceptional times because of the Covid-19 pandemic. She has been working and contributing to the employment insurance fund for more than 40 years. She says that there should be an exception in her case. Post-hearing documents [5] After the hearing, the Claimant sent an email with extra information. She described her job search during the period of the delay. She asked for an extension to her qualifying period. [6] I did not ask the Claimant for extra submissions after the hearing. However, I will accept the Claimant’s document. The Commission has had time to review this extra document. There would be no prejudice to the Commission if I accepted this document. Issues [7] I must decide whether the Commission should treat the Claimant’s application as if she had made it immediately after her last day of work. This is called antedating the application. [8] I must also decide whether the Claimant has enough hours to qualify for benefits. I will consider whether her qualifying period should be longer than 52 weeks. Analysis Issue 1: Should the Commission antedate the Claimant’s application? [9] Claimants have to prove two things to have an application for benefits antedated: They had good cause for the delay during the whole period of the delay. They qualified for benefits on the earlier day.Footnote 1 [10] Since the main arguments before me are about whether there was good cause, I will start with that. [11] To show good cause, the Claimant has to prove that she acted like a reasonable and prudent person would have acted in similar circumstances.Footnote 2 The Claimant has to show this for the entire period of the delay.Footnote 3 For the Claimant, the period of delay is from September 28, 2018 to March 19, 2020. [12] The Claimant also has to show that she took reasonably prompt steps to understand her entitlement to benefits and obligations under the law.Footnote 4 If the Claimant did not take these steps, then she must show that there were exceptional circumstances that explain why she did not do it.Footnote 5 [13] The Claimant has to prove that it is more likely than notFootnote 6 that she had good cause for her delay. [14] The Claimant argues that she has good cause for her delay because she did not know there was a time limit for applying. She says that she has contributed to the employment insurance fund for more than 40 years. She has never applied for employment insurance before. She was looking for work during the entire delay. [15] The Commission argues that the Claimant does not have good cause for the delay because she did not take steps to learn more about her entitlement. She did not contact the Commission to ask for more information, even after a Commission agent suggested she apply for employment insurance in February 2019. She decided to look for work instead of investigating the employment insurance program. The Commission argues that ignorance of the law is not the same as having good cause. [16] I find that the Claimant has not proven that she had good cause for her delay in applying for benefits. [17] I accept that the Claimant was looking for a job throughout the delay. I accept that she wanted to find a job, rather than rely on employment insurance benefits. This may have been a good personal decision for the Claimant. However, it does not mean that she had good cause for her delay.Footnote 7 [18] I accept that the Claimant did not have experience with the employment insurance program. I accept that she had not applied for employment insurance benefits before. However, ignorance of the law, even if the Claimant acted in good faith, is not enough to show good cause for a delay.Footnote 8 The Claimant has to show that she took some steps to learn more about her rights. The Claimant did not take extra steps to learn more about employment insurance benefits, even after a Commission agent suggested that she should apply. [19] I accept that the Covid-19 pandemic is exceptional. However, the Claimant has not proven that the pandemic prevented her from applying for employment insurance benefits sooner. The pandemic did not stop her from investigating her entitlement to employment insurance benefits. The Claimant has not proven that the pandemic caused her to delay applying for employment insurance benefits. The pandemic does not give the Claimant good cause for her delay. [20] The law says that the Claimant had to act reasonably quickly to understand her entitlement to employment insurance benefits. I cannot change the law or make an exception to the law for the Claimant. She has not shown that she took reasonably prompt steps to learn more about employment insurance benefits. She has not shown that exceptional circumstances contributed to her delay. She has not proven that she had good cause for her delay in applying for employment insurance benefits. [21] It is not necessary for me to consider whether the Claimant qualifies for benefits on September 28, 2018, because she has not shown good cause for her delay. Issue 2: Does the Claimant have enough hours to qualify for benefits? [22] Not everyone who stops working can receive employment insurance benefits. Claimants have to proveFootnote 9 that they qualify for benefits.Footnote 10 In order to qualify, claimants need to have worked enough hours within a certain timeframe.Footnote 11 This timeframe is called the qualifying period; I will explain what that is in more detail further below. [23] The number of hours that claimants need to have worked in order to qualify is not the same for everyone. It depends on the regional rate of unemployment that applies to that claimant.Footnote 12 [24] The Commission decided that the Claimant’s region was Vancouver and that the regional rate of unemployment on March 15, 2020 was 4.5%. This means that the Claimant would need to have worked at least 700 hours in her qualifying period to qualify for benefits.Footnote 13 [25] The Claimant does not say that she disagrees with the Commission’s decisions about her region or the rate of unemployment. On her application, she said that she lives in the Vancouver region. There is no reason for me to doubt the Commission’s decisions about the region or the unemployment rate. I accept that the Claimant needed 700 hours to qualify for benefits. [26] The Commission counts the hours that the Claimant worked during her qualifying period. A qualifying period is usually the 52 weeks before the start of the benefit period. Footnote 14 The benefit period is the window of time when the Commission pays benefits to claimants. [27] The Commission decided that the Claimant’s qualifying period was 52 weeks. The Commission decided that it ran from March 17, 2019 to March 14, 2020. [28] The Claimant says that the Commission should extend her qualifying period. She argues that the Covid-19 pandemic is an exceptional circumstance that should allow her to extend the qualifying period. [29] The law says that the Commission can only extend the qualifying period if the Claimant was not working for one of these reasons: The Claimant was sick or injured; The Claimant was in jail or a similar institution, and found not guilty of the offense; The Claimant was receiving assistance through an employment benefit program; The Claimant was receiving payments under a provincial plan to protect pregnant or breastfeeding mothers. These are sometimes called “preventative withdrawal payments.”Footnote 15 [30] The Commission can also extend the qualifying period if the Claimant was receiving separation money from her former employer.Footnote 16 [31] The Claimant would have to prove that one of these conditions happened during her regular 52-week qualifying period. If she can prove that she did not work in the past 52 weeks for one of these reasons, then the Commission could extend her qualifying period. [32] The Claimant told the Commission that none of these conditions applied to her. She said the same thing at the hearing. I accept the Claimant’s statements. I accept that the Claimant does not meet any of the conditions in the law to extend her qualifying period. [33] I have to follow the law. I cannot re-write the law or add new provisions to the law, even in the most sympathetic situations.Footnote 17 The law does not give me the power to extend the qualifying period in special circumstances. I can only extend the qualifying period if the law allows it. [34] I find that the Claimant’s qualifying period is 52 weeks long because she does not meet any of the conditions to extend her qualifying period. This means that her qualifying period runs from March 17, 2019 to March 14, 2020. [35] The Claimant’s last day of work was September 28, 2018. She told the Commission that she had not worked anywhere else after her last day of work. She said the same thing at the hearing. [36] The Commission decided that the Claimant did not have any hours during her qualifying period. The Claimant has not given me any evidence to show that the Commission’s decision was incorrect. I accept that the Claimant does not have any hours in her qualifying period. This is because she has not worked any hours since September 2018. [37] The Claimant has not proven that she has enough hours to qualify for benefits. She needed 700 hours to qualify but she has no hours in her qualifying period. I cannot extend the qualifying period beyond 52 weeks because the Claimant does not meet any of the conditions for a qualifying period. [38] I am sympathetic to the Claimant’s situation. I understand that she has been trying to find work. I understand that the Covid-19 pandemic has made it more difficult for her to find work. However, I have to follow the law. The employment insurance program is an insurance plan and the law describes the terms of the plan. The Claimant has to meet the terms of the plan in order to receive benefits. She does not qualify for benefits, and I cannot change the terms of the employment insurance plan to pay her benefits. Conclusion [39] I am dismissing the Claimant’s appeal. Heard on: June 29, 2020 Method of proceeding: Teleconference Appearances: L. S., Appellant Footnotes Footnote 1 Subsection 10(4) of the Employment Insurance Act. Footnote 2 Canada (Attorney General) v Burke, 2012 FCA 139. Footnote 3 Canada (Attorney General) v Burke, 2012 FCA 139. Footnote 4 Canada (Attorney General) v Somwaru, 2010 FCA 336; Canada (Attorney General) v Kaler, 2011 FCA 266. Footnote 5 Canada (Attorney General) v Somwaru, 2010 FCA 336; Canada (Attorney General) v Kaler, 2011 FCA 266. Footnote 6 The Claimant has to prove this on a balance of probabilities which means it is more likely than not. Footnote 7 Canada (Attorney General) v Smith, A-549-92. Footnote 8 Canada (Attorney General) v Carry, 2005 FCA 367, at para. 5. Footnote 9 The Claimant has to prove this on a balance of probabilities which means it is more likely than not. Footnote 10 Section 48 of the Employment Insurance Act. Footnote 11 Section 7 of the Employment Insurance Act. Footnote 12 Paragraph 7(2)(b) of the Employment Insurance Act; section 17 of the Employment Insurance Regulations. Footnote 13 Section 7 of the Employment Insurance Act sets out a chart that tells us the minimum number of hours that a claimant needs depending on the different rates of unemployment. Footnote 14 Section 8 of the Employment Insurance Act. Footnote 15 Subsection 8(2) of the Employment Insurance Act. Footnote 16 Subsection 8(3) of the Employment Insurance Act. Footnote 17 Canada (Attorney General) v Knee, 2011 FCA 301, at para. 9, and Canada (Attorney General) v Pannu, 2004 FCA 90, at para. 4.