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Employment Insurance - Parental Benefits. Canada (Attorney General) v. Pettinger
In Canada (Attorney General) v. Pettinger (Fed CA, 2023) the Federal Court of Appeal held that when an EI claimant elected for 'standard', as opposed to 'extended' parental benefits, that choice could not be later altered - despite the fact that the choice was financially sub-optimal:[1] Shortly before his child’s first birthday, John Calvin Pettinger took a 15-week parental leave from his employment and applied for 15 weeks of parental benefits under the Employment Insurance Act, S.C. 1996, c. 23.
[2] The Employment Insurance Act provides that a claimant for parental benefits "“shall elect”" the maximum number of weeks of benefits and that the election is irrevocable once benefits are paid: subsections 23(1.1) and 23(1.2).
[3] In his application, Mr. Pettinger chose standard parental benefits. Because standard parental benefits are available only during the 52 weeks following the child’s birth, Mr. Pettinger received only two weeks of benefits.
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[11] This Court has held that subsections 23(1.1) and (1.2) of the Employment Insurance Act allow for only one interpretation. The word "“elect”" means "“what a claimant indicates as their choice on the application form”" and, "“once payments of those benefits have started, it is impossible for the claimant, the Commission, the General Division or the Appeal Division to revoke, alter or change the election”": Canada (Attorney General) v. Hull, 2022 FCA 82 at paras. 62-64 [Hull].
[12] Notwithstanding that the Appeal Division issued its decision before this Court’s decision in Hull, that decision is unreasonable for the reasons given in Hull. Once Mr. Pettinger made his election and benefits were paid, his election could not be changed by him, the Commission, or the Social Security Tribunal.
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