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EI - COVID. Zhou v. Canada (Attorney General)
In Zhou v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal considered the difficult interaction between the EI 'regular' provisions and those of the COVID EI Emergency Response Benefit:[4] The provisions applicable to this application relate to entitlements to employment insurance (EI) benefits and employment insurance emergency response benefits (EI ERB) and are set out in the Employment Insurance Act, S.C. 1996, c. 23 (EI Act) and the Employment Insurance Regulations, S.O.R./96-332 (EI Regulations). The relevant provisions are numerous and complex and are therefore set out in the Appendix to these reasons.
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A. Did the Appeal Division reasonably conclude that the applicant was entitled to EI ERB as opposed to regular EI benefits in respect of her first claim?
[29] Turning more specifically to the first issue, the applicant argues that she was not entitled to EI ERB by virtue of paragraph 153.9(1)(a) of the EI Act because she was not a Canadian resident and that she ought to have received 36 weeks of regular EI benefits under her first claim. She contends that it was unreasonable for the Appeal Division to conclude otherwise.
[30] I disagree.
[31] As the Appeal Division noted in its decision, paragraph 153.9(1)(a) of the EI Act is not the only provision of relevance. By virtue of the combined effect of section 153.1310, paragraphs 153.9(1)(b), 153.5(2)(b), and subsection 153.5(3) of the EI Act, the benefits the applicant received, which were originally assessed as regular EI benefits under Part I of the EI Act, are deemed to have been EI ERB. Moreover, the Appeal Division reasonably applied subsections 153.8(1), (5) and (6) of the EI Act to end the applicant’s EI ERB benefit period on October 3, 2020. . T-Giorgis v. Canada (Attorney General)
In T-Giorgis v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismisses a judicial review of "a decision of the Appeal Division of the Social Security Tribunal" regarding EI.
Here the court refers to COVID-related EI amendments:[23] Section 153.161 of the EIA was added to the EIA on September 27, 2020, by Interim Order No. 10 Amending the Employment Insurance Act (Employment Insurance Emergency Response Benefit), Canada Gazette, Part II, Vol. 154, No. 21, S.O.R./2020-208. The Explanatory Note to Interim Order No. 10 provides among other things that the interim order enables a modified operational approach to the assessment of availability to work for claimants in training. It also specifies that the provisions made under the interim order will cease to have effect on September 25, 2021.
[24] Section 153.161 of the EIA reads as follows:"Availability"
"Disponibilité"
Course, program of instruction or non-referred training
Cours ou programme d’instruction ou de formation non dirigé
"153.161 (1)"" For the purposes of applying paragraph 18(1)(a), a claimant who attends a course, program of instruction or training to which the claimant is not referred under paragraphs 25(1)(a) or (b) is not entitled to be paid benefits for any working day in a benefit period for which the claimant is unable to prove that on that day they were capable of and available for work."
"153.161 (1)"" Pour l’application de l’alinéa 18(1)a), le prestataire qui suit un cours ou programme d’instruction ou de formation pour lequel il n’a pas été dirigé conformément aux alinéas 25(1)a) ou b) n’est pas admissible au versement des prestations pour tout jour ouvrable d’une période de prestations pour lequel il ne peut prouver qu’il était, ce jour-là, capable de travailler et disponible à cette fin."
"Verification"
"Vérification"
"(2)"" The Commission may, at any point after benefits are paid to a claimant, verify that the claimant referred to in subsection (1) is entitled to those benefits by requiring proof that they were capable of and available for work on any working day of their benefit period. "
"(2)"" La Commission peut vérifier, à tout moment après le versement des prestations, que le prestataire visé au paragraphe (1) est admissible aux prestations en exigeant la preuve qu’il était capable de travailler et disponible à cette fin pour tout jour ouvrable de sa période de prestations." ....
[49] Section 153.161 of the EIA was in effect during the period in which Ms. T-Giorgis received benefits and is therefore relevant to her claim. The text of section 153.161 is clear. A claimant who attends non-referred training is not entitled to be paid benefits for any working day of their benefit period if they are unable to prove that on that day they were capable of and available for work. Also, the Commission may, at any point after benefits are paid to a claimant, verify that the claimant is entitled to those benefits by requiring proof they were capable of and available for work on any working day of their benefit period. In other words, verification of entitlement may occur after benefits have been paid.
[50] Moreover, unlike section 111 of the EIA, which grants the Commission the authority to rescind or amend a decision given in any particular claim if new facts are presented or the decision was given in the absence of or based on a mistake as to a material fact, neither subsection 153.161(2) nor section 52 of the EIA require the existence of new information for the Commission to exercise its discretionary authority. Where new facts are required for a tribunal to reconsider, rescind or amend a previous decision, Parliament usually says so (see, e.g., EIA, sections 41, 65.1(4)).
[51] I acknowledge the wording in the Explanatory Note to Interim Order No. 10, which specifies that the interim order provides authorities related to the transition from the EI-ERB to regular benefits. However, section 153.161 of the EIA was added to Part VIII.5 of the EIA. This part is entitled "“Temporary Measures to Facilitate Access to Benefits”". It is reasonable to conclude that the purpose of section 153.161 of the EIA was to expedite benefit delivery to claimants who were students or receiving training by postponing verification of entitlement until after the payment of benefits, regardless of their transition to regular benefits. Prior to the implementation of section 153.161, applications for benefits would have normally involved assessing entitlement prior to the payment of benefits.
[52] While there may be other available interpretations, including the one advanced by Ms. T-Giorgis, I find that the Appeal Division’s interpretation is reasonable and does not warrant intervention by this Court.
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