Qualifying Conditions

Disclaimer:
*This asterisk denotes recent case law.

Questions to Answer



  1. Interruption of earnings?
  2. Benefit Period Commencement date? 
  3. Qualifying Period dates?
  4. Extension of Qualifying Period applicable?
  5. Sufficient hours of insurable employment in Qualifying Period?


References


 
Act: sections 2 Employment Insurance Act (interruption of earnings), 7 Employment Insurance Act (insured hours required to establish a claim), 7.1 Employment Insurance Act (increase in required hours for violation), 8 Employment Insurance Act (qualifying period), *9 &10(1)(establishment of a benefit period).

Related: Act subsections 30(5) (restriction of qualifying for benefits when a claimant has been disqualified), 30(6) Employment Insurance Act (restriction on number of weeks and rate of benefits when a claimant has been disqualified)

Regulations: sections 12 Employment Insurance Regulations (prescribed hours and prescribed weeks), 14 Employment Insurance Regulations (interruption of earnings) , 35 Employment Insurance Regulations (earnings for benefit purposes)

Legal test


 
Insurable Employment to establish a claim:
Two categories of claimant - Four situations possible: (section 7 of the Act)   Employment Insurance Act. .
  1. New-Entrant or Re-entrant subsections 7(3), 7(4), 7(5) Employment Insurance Act - needs 910 hours in Qualifying Period.
  2. New-entrant or re-entrant with "violation(s)" - needs number of hours specified in subsection 7.1(2) Employment Insurance Act. Claims to which Regulation 77.5 Employment Insurance Regulations applies require the increased hours set out in subsection 77.5(3) Employment Insurance Regulations.
  3. "Regular qualifier" - claimant other than a new-entrant or re-entrant: needs 420 to 700 hours depending on regional rate of unemployment. See TABLE (subsection 7(2) Employment Insurance Act)
  4. Regular qualifier with "violation(s)" subsection 7.1(1) Employment Insurance Act - needs hours per TABLE (subsection 7.1(1) Employment Insurance Act)
Note:
Violations subsections 7.1(4), 7.1(5), 7.1(6) Employment Insurance Act - apply if fraud was committed and the Commission decided to issue the claimant a Notice of Violation for reasons specified in subsection 7.1(4) Employment Insurance Act

Sufficient Insurable Employment to establish a claim must take into account subsections 30(5), 30(6) Employment Insurance Act - applying to claimants who have lost or left an employment.

Onus of proof


 
Claimant must provide proof of qualifying conditions: subsection 49(1). Employment Insurance Act 

Key Case Law


 

*HENDERSON A-455-10: Extended benefits under the long-tenured worker provisions not allowed due to the “…clear wording of section 9 and subsection 10(1) of the Act, which define the establishment of the “benefit period”.”

COTE A-178-86 Judgment Of The Federal Court Of Appeal, HARBOUR A-541-85 Judgment Of The Federal Court Of Appeal:  Establishing a benefit period vs meeting the conditions of entitlement to draw benefits

POULIOT A-1121-87 Judgment Of The Federal Court Of Appeal:  Insurable employment in Qualifying Period.

LESIUK A-281-01 Judgment Of The Federal Court Of Appeal (leave to appeal dismissed by Supreme Court [ 29642 Judgement Of The Supreme Court Of Canada]) sections 6 and   Employment Insurance Act 7 of the Act   Employment Insurance Actdo not contravene the Charter of Rights, PERIGNY A-405-01 Judgment Of The Federal Court Of Appeal: New entrant / re-entrant qualifying conditions - Charter of Rights argument.

LEVESQUE A-196-01 Judgment Of The Federal Court Of Appeal:  One hour short of meeting eligibility requirements - Act allows for no discrepancy or discretion.

SHEBIB A-24-01 Judgment Of The Federal Court Of Appeal:  Extension of Qualifying Period - severance pay does not prevent an interruption of earnings thus no basis for extension.

XUAN A-1393-92 Judgment Of The Federal Court Of Appeal:  Extension of Qualifying Period - confinement to an institution

DIDIODATO A-354-01 Judgment Of The Federal Court Of Appeal, BANWAIT A-470-00 Judgment Of The Federal Court Of Appeal, HABERMAN A-717-98 Judgment Of The Federal Court Of Appeal, VAUTOUR A-733-95 Judgment Of The Federal Court Of Appeal, KAUR A-487-93 Judgment Of The Federal Court Of Appeal:  Jurisdiction to make decisions on insurability and the quantum of insured hours rests with Revenue Canada Taxation

GAUTHIER A-105-98 Judgment Of The Federal Court Of Appeal:  Revenue Canada decision on insurability vs Commission decision on entitlement to benefits

PIRNASAR A-210-94 Judgment Of The Federal Court Of Appeal:  Request to extend Benefit Period - receipt of Wage Loss Insurance

PERRY A-475-05 Judgment of the Federal Court of Appeal, PINKERTON A-354-03 Judgment Of The Federal Court Of Appeal, A-355-03 Judgment Of The Federal Court Of Appeal and A-357-03 Judgment Of The Federal Court Of Appeal, ROY A-635-01 Judgment Of The Federal Court Of Appeal, CLAVET A-638-01 Judgment Of The Federal Court Of Appeal, LAROCQUE A-592-99 Judgment Of The Federal Court Of Appeal, RENY A-909-96 Judgment Of The Federal Court Of Appeal, SAVARIE A-679-95 Judgment Of The Federal Court Of Appeal:  Interruption of earnings - continuing to work

MASSÉ A-307-06 (CUB 65896) Judgment Of The Federal Court Of AppealLEVIS A-79-02 Judgment Of The Federal Court Of Appeal, MARCOUX A-78-02 Judgment Of The Federal Court Of Appeal:  Interruption of earnings - in receipt of accommodation

STOYKO A-448-94 Judgment Of The Federal Court Of Appeal:  Interruption of earnings - contract of employment.

VIEL A-194-97 Judgment Of The Federal Court Of Appeal:  Interruption of earnings - farm income

TJONG A-672-95 Judgment Of The Federal Court Of Appeal:  Benefits paid after the end of a benefit period

BELANGER A-60-00 Judgment Of The Federal Court Of Appeal, DUPERE A-774-99 Judgment Of The Federal Court Of Appeal:  The rate calculation period and preventative withdrawal from work (EI Regulations subsection 14(7) Employment Insurance Regulations).

SZCZECH A-145-04 Judgment Of The Federal Court Of Appeal: Start of the 260 week period for violations.

MAXWELL  A-463-05 Judgment Of The Federal Court Of Appeal, PIOVESAN  A-559-05 Judgment Of The Federal Court Of Appeal: The issuance of a warning is a “penalty” for the purposes of the invoking of a violation pursuant to paragraph 7.1(4)(a) of the EI Act.

SAVARD  A-546-05 Judgment Of The Federal Court Of Appeal: The increase in insured hours provided for in subsection 7.1(1) is based on the claimant's liability for the violation and not on the knowledge of having a notice of violation.

PETRYNA A-773-00 Judgment Of The Federal Court Of Appeal:  The EI Act has no provision to suspend or stay a violation pending the final disposition of any outstanding appeal.

LINGAM A-396-04 Judgment Of The Federal Court Of Appeal, SOMERVILLE A-336-04 Judgment Of The Federal Court Of Appeal: The classification of a violation is based on the amount of the overpayment.

CUB 68438 Umpire Decision, CUB 45378 Umpire Decision: hours required to requalify for benefits following an indefinite disqualification for voluntary leaving or misconduct.



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