Eligibility for benefits

I. The Legislation

a. Generally

In order to establish a claim for benefits, a claimant must establish two things; first, that he or she has suffered an "interruption of earnings" and second, that he or she has the minimum amount of insurable employment required by the legislation.

b. Interruption of Earnings

An interruption of earnings occurs when a person is laid off or separated from his or her employment and, has a period of seven or more consecutive days during which no work is performed for that employer and no earnings arise from that employment.

Where a person stops working because of illness, injury, quarantine, pregnancy or the need to care for a child or children, an interruption of earnings occurs at the beginning of the week in which a reduction of more than forty percent in the person's normal weekly earnings occurs.

Where a claimant is, pursuant to his or her contract of service, entitled to a period of leave, he or she shall not be regarded as having had an interruption of earnings.

Claimants who are real estate agents will not be considered to have suffered an interruption of earnings until their licence to sell real estate is surrendered, suspended or revoked or, they stop working as a real estate agent because of illness, injury, quarantine, pregnancy or the need to care for a child or children.

Claimants who are employed under a contract of employment and whose earnings consist mainly of commissions suffer an interruption of earnings when the contract of employment is terminated or the claimant stops working in that employment because of illness, injury, quarantine, pregnancy or the need to care for a child or children.

Claimants who take a period of leave from their employment under an agreement with their employer and, who continue to be an employee of the employer and, who receive remuneration that was set aside during a period of work, shall not be considered to have suffered an interruption of earnings regardless of the time or manner in which the remuneration is paid.

Claimants who are pregnant or who are breast-feeding, and who accept less remunerative work with their employer because the continuation of their work represents a physical danger to them, to their unborn child or the child they are breast-feeding, and who, as a result, receive a wage supplement under a provincial law, suffer an interruption of earnings on their last day of work before the beginning of the less remunerative work.

c. Minimum Eligibility Requirements

The provisions of the  Employment Insurance Act mandate a regime based on hours worked for minimum eligibility requirements. These eligibility requirements are essential to the proper functioning and effectiveness of the insurance scheme. Although they may have a detrimental effect on claimants who are not able to meet the threshold number of hours of insurable employment, this negative effect does not overwhelmingly outweigh the positive social effects of the employment insurance scheme.

Canada (A.G.) v. Lesiuk, [2003] F.C.J. No. 1, File No. A-281-01 Judgment Of The Federal Court Of Appeal

The minimum eligibility requirements do not demean human dignity in the context of section 15 of the Charter   Canadian Charter Of Rights And Freedoms. The requirements are not a manifestation of a lack of respect or of dignity. They are an administratively necessary tool tailored to correspond to the requirements of a viable contributory insurance scheme.

Canada (A.G.) v. Lesiuk, [2003] F.C.J. No. 1, File No. A-281-01 Judgment Of The Federal Court Of Appeal

The minimum eligibility requirements of the Act do not allow any discrepancy and provides no discretion. Neither the Board of Referees or the Umpire can remove the defect from the claim.

Canada (A.G.) v. Lévesque, [2001] F.C.J. No. 1557, File No. A-196-01 Judgment Of The Federal Court Of Appeal (F.C.A.) October 16, 2001

d. Insurable Employment

i. General

The  Employment Insurance Act requires a claimant to have a certain number of hours of insurable employment.

Under the  Employment Insurance Act, a new entrant or re-entrant to the labour force must have 910 hours or more of insurable employment in his or her qualifying period.

A new entrant or re-entrant to the labour force is defined in the legislation. Whether a claimant is a new entrant or re-entrant depends upon his or her situation during the fifty-two (52) weeks immediately preceding the commencement of his or her qualifying period. The qualifying period is the shorter of: (1) the fifty-two (52) weeks preceding the commencement of the claim; or (2) the period between the start of a prior benefit claim and the start of the new benefit claim. The qualifying period can be extended if the criteria set out in the legislation are met. However, the maximum length of a qualifying period is 104 weeks.

A person who is not a new entrant or re-entrant is also required to have a certain number of weeks or hours of insurable employment during their qualifying period. However, the number of weeks or hours depends upon the regional rate of unemployment for the region in which the claimant is ordinarily resident.

ii. Definition of Insurable Employment

The legislation distinguishes between two types of employment; "insurable" and "excluded". Employment falls into either one of these two categories. Benefits are payable to those persons who were engaged in insurable employment. Both terms are defined in the Act. Generally speaking, insurable employment is employment under a contract of service. However, the Commission has the power to make regulations which extend the scope of insurable employment.

iii. Determination of Insurable Employment

If there is any question as to whether employment is "insurable", an application may be made to the Minister of National Revenue for a determination. Any appeal from the Minister's decision must be made to the Tax Court of Canada.

II. Principles of Law

Please see the following topics:

• Interruption of Earnings
• Insurable Employment
• Qualifying Period

III. Related Topics

• Availability
• Claim Procedure and Entitlement to Benefits
• Interruption of Earnings
• Insurable Employment
• Qualifying Period