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Employment Insurance - Collateral Benefits. Sennikova v. Canada (Attorney General)
In Sennikova v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered an aggressive EI appeal where the appellant argued that Ontario SABS benefits were not chargeable collateral benefits against her EI entitlements, as the SABS were privately-contracted for benefits and EI law only charged benefits "under a provincial law":[2] Dissatisfied, Ms. Sennikova appealed the reconsideration decision to the General Division of the Social Security Tribunal. In essence, she argued that the Commission erred in treating her income replacement benefits as earnings and in finding that they were provided by or under provincial law. She maintained that income replacement benefits provided by commercial insurance companies did not fall under paragraph 35(2)(d) of the EI Regulations.
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[11] The Appeal Division examined and considered Ms. Sennikova’s core argument that the income replacement benefits she received from her motor vehicle accident insurance provider did not constitute earnings under paragraph 35(2)(d) of the EI Regulations because the payments she received were not made "“under a provincial law”" but by her private commercial insurance company. Like the General Division, the Appeal Division set out the key parts of this provision, namely that motor vehicle accident insurance payments will be earnings if: (1) the payments are provided under a provincial law; (2) they are loss of employment earnings due to injury; and (3) EI benefits have not already been deducted from the auto insurance payments. The Appeal Division considered the purpose of the provision as interpreted by this Court in Canada (Attorney General) v. Lalonde (1996), 1996 CanLII 3991 (FCA), 142 D.L.R. (4th) 572, [1996] F.C.J. No. 1295 (QL), and agreed with the General Division’s interpretation that payments made under the plan need only be made under a provincially regulated scheme. The Appeal Division then reviewed and accepted the General Division’s reasons for finding that Ms. Sennikova’s income replacement benefits were paid under a provincially regulated scheme. ...
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[13] Generally speaking, the purpose of subsection 35(2) of the EI Regulations is to account for the other sources of income intended to compensate the loss of earnings from unemployment. It sets out several forms of income considered earnings for benefit purposes. Other types of income provided under subsection 35(2) include, for example, workers’ compensation benefits (para. 35(2)(b)), sickness and related benefits (para. 35(2)(c)), and moneys paid on a periodic basis on account of or in lieu of a pension (para. 35(2)(e)). With respect to paragraph 35(2)(d), the intent of the provision is to avoid double compensation where the claimant is also receiving, or entitled to receive, payments under a motor vehicle insurance plan regulated under provincial legislation, and those payments are meant to be compensation for actual or presumed loss of income from employment due to injury from a motor vehicle accident.
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