Difference between pages "Penalties, Violations, and Offences with Employment Insurance (8:VIII)" and "Keeping Out of Trouble on Employment Insurance (8:IX)"

Revision as of 23:45, 20 September 2020

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July, 2019.

A. Job Search Record

Once a claim is established, the basic eligibility requirement to receive regular EI benefits is that claimants be able to prove that they are “capable of, and available for work and unable to find suitable employment”. To help prove this, the claimant should keep a job search record. This may make disentitlement less likely, and improve the chances of success should an appeal be necessary. In fact, the Commission may send to the claimant a form that is essentially a job search record. This is called an “active job search statement”. The statement will require the claimant to provide:

names of the businesses applied to and the names of the persons who interviewed the claimant;
type of employment applied for;
date of the application or contact;
results of applications

Potential employers need not sign the statement or record. They, however, may be contacted by the Commission to confirm the facts reported. If the form is not returned, disentitlement may follow.

Even though an “active job search statement” may not be required, the claimant should keep a job search record with this same information. The job search record should include everything done to look for work. It should be made clear that every attempt or type of attempt counts (including such things as contacting family members about employment opportunities, “cold calling,” etc.). The difficulty is that many claimants do not keep such records even though they have been warned to do so. In such cases, the claimant’s representative can only do the following:

a) advise the claimant to keep such lists in the future; and
b) (if true) argue that the claimant did not know that they had to keep such a list, and that any list now composed from memory is not a complete one, as the claimant cannot remember the details of all the employment opportunities they pursued.

Every regular benefit claimant must also register with the Commission. Claimants should visit the job board at least once a week and record these visits. Many EI offices now maintain electronic job boards that can be accessed from computer kiosks in the offices, or from home, like the Canada Job Bank.

Claimants should also keep a record of all telephone calls and any other kind of contact for further evidence of job searching. An example “job search record”:

June 12– 15: Checked The Sun and The Province want ads every day.

June 12: Phoned Ajax Plumbing: George Brown, Manager, said not to send in a written application, but to call back in a month.

June 13: Checked bulletin board at the Canada Employment Centre and copied down one possible job: phoned XYZ Deliveries, but position already taken.

June 14: Wrote letter to Acme Amigos: no response.

June 15: Searched Internet job sites from Frank’s house. Printed out some likely prospects.

The claimant should make the job search record as detailed and complete as possible. Include friends contacted regarding job openings, and all efforts made to look for a job. The claimant must at all times try to convince the Commission that they are making a great effort to find a job.

B. Interviews with an Investigation and Control Officer

At some point, the claimant may be summoned to the local EI office for an interview regarding his or her job search. Typically the Investigation and Control Officer asks the claimant questions and makes a “Report of Interview,” which is later reviewed by an Insurance Officer who will, on the basis of the Report, decide whether or not benefits are to continue. The claimant does not need to sign or affirm the report, though it is supposed to be read to him or her, and a copy should be provided for the claimant’s records.

The Commission can disqualify a claimant for 7-12 weeks if the claimant fails to attend, without good cause, an interview the Commission asks him or her to attend (EI Act, s 27(1)(d)). The claimant must either attend the interview or phone to make a new appointment and confirm the new appointment in writing.

1. Keeping the Record Straight

To protect against a potentially misleading report, the claimant should try to be as general as possible in his or her report. However, telling the truth during the interview is imperative. For example, the client should state, if true, that he or she would accept the going rate rather than stating his or her desired wage.

If the claimant decides, after the Report is read to them, that it is incorrect or misleading, the claimant should tell the Officer immediately because the Officer may correct the report immediately. If the Officer refuses or if the claimant later decides that they disagree, the claimant should write a letter stating their position. This is important since an appeal may be necessary and such an immediate reaction by the claimant may convince the Board of his or her honesty and integrity. It may also lead to the earlier reinstatement of a claimant who is disentitled for unreasonably restricting his or her job search.

2. Disputing the Report at an Appeal

If there is a disentitlement based on the Report of Interview and an appeal follows, the SST may be willing to accept explanations and modifications of the report. There must be evidence to support these modifications. Further, their usual position will be that since the statement was read to the claimant, it must be true. There is an established principle supported by several court decisions to the effect that “statements made before disentitlement are to be believed more than statements made after disentitlement,” the latter suspected of being self-serving. One effective way for a claimant to demonstrate willingness to accept wages lower than the figure stated on the application form or in an interview report is to prove that they actively pursued a job possibility paying a lower amount after learning what the salary was.

C. Reporting

In order to receive continued benefits, individuals must send in reports on a regular basis. They are usually due and cover every two calendar weeks (from Sunday to Saturday). There are three ways to send in these reports:

the Telephone Reporting Service;
the Reporting Service by Internet at http://www.servicecanada.gc.ca/eng/ei/service/interdec_report.shtml#How; and
the paper “Report Card” system.

The timing and due dates of these reports depends on each individual claim. This information will be available to each claimant shortly after applying to EI when the Benefit statement and Access Code is received in the mail.

NOTE: The paper "Report Card" method is only available to a claimant who cannot otherwise transmit his or her report card online or by phone. The standard ways of processing and paying EI benefits are the Reporting Service by Internet and the Telephone Report Service.

1. What to Include in Reports

Be careful to include the following in each report:

gross income;
earnings for the week they are earned, not the week they are received; and
all money received and declared should include some reference to the source and reason for the payment since it may or may not count as earnings (EI Regulations, s 35).
Money received from a private or individual insurance plan paid for by the claimant should not be included.

The information given must be accurate, otherwise the claimant could be accused of a false or misleading statement. If the claimant needs to update a report, for example to change the amount of earnings reported, they should call the Telephone Reporting Service immediately. The Commission has a policy that they will not charge or prosecute a claimant for giving false or misleading information if the claimant volunteers the correct information before an investigation begins.

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-== A. Imposing Penalties ==
+== A. Job Search Record ==
-Sections 38 and 40 of the ''EI Act'' allow the Commission to impose a penalty of up to three times the weekly rate of benefit on a claimant who '''knowingly''' makes a false or misleading representation to the Commission in relation to his or her claim for benefits. The claimant must actually know that the statement is false or misleading, and the onus of proving this is on the Commission.
+Once a claim is established, the basic eligibility requirement to receive regular EI benefits is that claimants be able to prove that they are “capable of, and available for work and unable to find suitable employment”. To help prove this, the claimant should keep a job search record.  This may make disentitlement less likely, and improve the chances of success should an appeal be necessary. In fact, the Commission may send to the claimant a form that is essentially a job search record. This is called an “active job search statement”. The statement will require the claimant to provide:
-The court applies a subjective knowledge test to decide whether the claimant intended to make false statements to the commission. Following ''Canada v Gates'' (1995), 125 D.L.R. (4th) 348, the Court in ''David Moretto v AG Canada'', [1998]  F.C.J. No. 438, confirmed that even if a claimant’s statement is found to be false, no penalty should be levied unless the finder of fact is  satisfied that the claimant “subjectively knew” the statement was false. It is not enough to say that they should have known, or should have asked someone, or that a reasonable person would have known.
+*names of the businesses applied to and the names of the persons who interviewed the claimant;
+*type of employment applied for;
+*date of the application or contact;
+*results of applications
-== B. Types of Penalties ==
+Potential employers need not sign the statement or record. They, however, may be contacted by the Commission to confirm the facts reported. If the form is not returned, disentitlement may follow.
-Types of penalties include warning letters, penalties, monetary penalties, prosecutions, and violations (discussed below). Most often, the  Commission chooses to issue a monetary penalty (a fine). For relatively minor cases, they may issue a warning letter.
+Even though an “active job search statement” may not be required, the claimant should keep a job search record with this same information. The  job search record should include everything done to look for work. It should be made clear that every attempt or type of attempt counts  (including such things as contacting family members about employment opportunities, “cold calling,” etc.). The difficulty is that many claimants do not keep such records even though they have been warned to do so. In such cases, the claimant’s representative can only do the following:
-Alternatively, a claimant could be prosecuted criminally (summarily). Section 135(3) of the ''EI Act'' sets the minimum fine at $200 for fraud  relating to a person’s employment and Record of Employment. The maximum fine is $5,000 and where appropriate, twice the amount of benefits falsely obtained, or the fine plus imprisonment for a term of up to six months (s 135(3)). In practice, criminal court cases are very rare,  even when a claimant asks to be prosecuted. The Commission need only write a decision letter to the claimant to impose a very large penalty, which is much simpler than proceeding with a court case, and the standard of proof is much higher in a criminal court than for the Commission
+*a) advise the claimant to keep such lists in the future; and
+*b) (if true) argue that the claimant did not know that they had to keep such a list, and that any list now composed from memory is not a  complete one, as the claimant cannot remember the details of all the employment opportunities they pursued.
-=== 1. Appealing a Decision to Impose a Penalty ===
+Every regular benefit claimant must also register with the Commission. Claimants should visit the job board at least once a week and record these visits. Many EI offices now maintain electronic job boards that can be accessed from computer kiosks in the offices, or from home, like the Canada Job Bank.
-If the Commission imposes a '''penalty under s 38''' (or s 39 in the case of employers), '''a client should be advised to appeal''' in all but the clearest of circumstances. Regardless of what the Commission says, it has the burden of proving that the claimant knew that the statement was false or misleading at the time it was made. If the claimant has a reasonable explanation (e.g. confusion regarding the intent of the question), the appeal should be allowed.
+Claimants should also keep a record of all telephone calls and any other kind of contact for further evidence of job searching. An example “job search record”:
-:'''NOTE:''' The Commission cannot impose a penalty under ss 38 or 39 if 36 months have elapsed since the act or omission. For a case that discusses when time limits start to run see ''Attorney General of Canada v Kos'', 2005 FCA 319. The key issue here was whether file notes by an  insurance officer constituted a “decision” that triggered the time limit. The court ruled that it did not, in part because the notes were not communicated to the claimant.
+:June 12– 15: Checked The Sun and The Province want ads every day.
-=== 2. Appealing the Amount of a Penalty ===
+:June 12: Phoned Ajax Plumbing: George Brown, Manager, said not to send in a written application, but to call back in a month.
-The SST has jurisdiction over the amount of the penalty assigned. While the amount of the penalty can also be appealed, a penalty cannot be  reduced simply because the SST considers it a bit too high. However, they can reduce a penalty if the decision is unreasonable, e.g. where  Commission has erred by ignoring relevant circumstances such as the claimant's ability to pay, or health problems, or where it took irrelevant circumstances into account. It is not necessary to prove that the Commission was unfair, just that it was not made aware ofall the relevant circumstances.
+:June 13: Checked bulletin board at the Canada Employment Centre and copied down one possible job: phoned XYZ Deliveries, but position already taken.
-== C. The Violation System ==
+:June 14: Wrote letter to Acme Amigos: no response.
-Section 7.1 of the ''EI Act'' outlines the increased qualifying requirements for claimants who are found to have committed fraud after June  30, 1996. These requirements increase depending on how the violation is classified (minor, serious, or very serious). If the Commission  chooses to simply issue a warning letter (possibly accompanied by a fine), then as per s 7.1(5), no such classification is made.
+:June 15: Searched Internet job sites from Frank’s house. Printed out some likely prospects.
-=== 1. Increased Number of Hours Required to Qualify ===
+The claimant should make the job search record as detailed and complete as possible. Include friends contacted regarding job openings, and '''all  efforts''' made to look for a job. The claimant must at all times try to convince the Commission that they are making a great effort to find a job.
-Section 7.1(1) provides that an insured claimant (other than a new or re-entrant) must have a greater number of hours to qualify if that person has accumulated one or more violations in the 260 weeks before making their claim. This adds a significant barrier for receiving benefits. The increased hours required to qualify after a violation are outlined in the '''s 7.1(1) Table''', on the following page:
+== B. Interviews with an Investigation and Control Officer ==
-'''Section 7.1(1) Table'''
+At some point, the claimant may be summoned to the local EI office for an interview regarding his or her job search. Typically the Investigation and Control Officer asks the claimant questions and makes a “Report of Interview,” which is later reviewed by an Insurance Officer who will, on the basis of the Report, decide whether or not benefits are to continue. The claimant does not need to sign or affirm the  report, though it is supposed to be read to him or her, and a copy should be provided for the claimant’s records.
-{| class="wikitable"
+The Commission can disqualify a claimant for 7-12 weeks if the claimant fails to attend, without good cause, an interview the Commission asks him or her to attend (''EI Act'', s 27(1)(d)). The claimant must either attend the interview or phone to make a new appointment and confirm the new appointment in writing.
-! Regional Rate Of Unemployment
-! colspan="4" | Violation Severity
-|-
-|
-| '''Minor'''
-| '''Serious'''
-| '''Very Serious'''
-| '''Subsequent'''
-|-
-| '''6.0% and under'''
-| 875
-| 1050
-| 1225
-| 1400
-|-
-| '''over 6.0% to 7.0%'''
-| 831
-| 998
-| 1164
-| 1330
-|-
-| '''over 7.0% to 8.0%'''
-| 788
-| 945
-| 103
-| 1260
-|-
-| '''over 8.0% to 9.0%'''
-| 744
-| 893
-| 1041
-| 1190
-|-
-| '''over 9.0% to 10.0%'''
-| 700
-| 840
-| 980
-| 1120
-|-
-| '''over 10.0% to 11.0%'''
-| 656
-| 788
-| 919
-| 1050
-|-
-| '''over 11.0% to 12.0%'''
-| 613
-| 735
-| 858
-| 980
-|-
-| '''over 12.0% to 13.0%'''
-| 569
-| 683
-| 796
-| 910
-|-
-| '''over 13.0%'''
-| 525
-| 630
-| 735
-| 840
-|}
-:'''NOTE:''' Violations should always be appealed.
+=== 1. Keeping the Record Straight ===
-=== 2. Issuing Violations ===
+To protect against a potentially misleading report, the claimant should try to be as general as possible in his or her report. However, telling the truth during the interview is  imperative. For example, the client should state, if true, that he or she would accept the going rate rather than stating his or her desired wage.
-Pursuant to s 7.1(4), the Commission may issue a violation notice for:
+If the claimant decides, after the Report is read to them, that it is incorrect or misleading, the claimant should tell the Officer immediately because the Officer may correct the report immediately.  If the Officer refuses or if the claimant later decides that they disagree, the claimant should write a letter stating their position.  This is important since an appeal may be necessary and such an immediate reaction by the claimant may convince the Board of his or her honesty and integrity.  It may also lead to the earlier reinstatement of a claimant who is disentitled for unreasonably restricting his or her job search.
-*a) one or more penalties imposed under ss 38, 39, 41.1 or 65.1 as a result of acts or omissions mentioned in ss 38, 39 or 65.1;
+=== 2. Disputing the Report at an Appeal ===
-*b) a finding of guilt for an offence under ss 135 or 136; or
-*c) a finding of guilt of one or more offences under the ''Criminal Code'' as a result of acts or omissions relating to the application of the ''EI Act''.
-=== 3. Classifying Violations ===
+If there is a disentitlement based on the Report of Interview and an appeal follows, the SST may be willing to accept explanations and  modifications of the report. There must be evidence to support these modifications. Further, their usual position will be that since the statement was read to the claimant, it must be true. There is an established principle supported by several court decisions to the effect   that “statements made before disentitlement are to be believed more than statements made after disentitlement,” the latter suspected of being self-serving. One effective way for a claimant to demonstrate willingness to accept wages lower than the figure stated on the application form or in an interview report is to prove that they actively pursued a job possibility paying a lower amount after learning what the salary was.
-If a violation is found to have occurred, as determined by the above criteria, it must be classified for purposes of the '''s 7.1(1) Table''', and  also for new and re-entrants. The ''EI Act'' classifies violations in the following manner under s 7.1(5)(a):
+== C. Reporting ==
-*a) Minor violation: if the value of the violation is less than $1,000;
+In order to receive continued benefits, individuals must send in reports on a regular basis. They are usually due and cover every two calendar  weeks (from Sunday to Saturday). There are three ways to send in these reports:
-*b) Serious violation: if the value of the violation is less than $5,000 (but more than $1,000), it is a serious violation;
-*c) Very serious violation: if the value of the violation is over $5,000, it is a very serious violation.
-Under s 7.1(6), the value of a  violation for purposes of classification is the amount of overpayment of benefits resulting from acts on which the violation is based. If the claimant is disqualified or disentitled, the value is the total amount of benefits they would have collected, divided by two.
+#the Telephone Reporting Service;
+#the Reporting Service by Internet at http://www.servicecanada.gc.ca/eng/ei/service/interdec_report.shtml#How; and
+#the paper “Report Card” system.
+The timing and due dates of these reports depends on each individual claim. This information will be available to each claimant shortly after applying to EI when the Benefit statement and Access Code is received in the mail.
+:'''NOTE:''' The paper "Report Card" method is only available to a claimant who cannot otherwise transmit his or her report card online or by phone. The standard ways of processing and paying EI benefits are the Reporting Service by Internet and the Telephone Report Service.
+=== 1. What to Include in Reports ===
+Be careful to include the following in each report:
+*gross income;
+*earnings for the week they are earned, not the week they are received; and
+*all money received and declared should include some reference to the source and reason for the payment since it may or may not count as earnings (''EI Regulations'', s 35).
+*Money received from a private or individual insurance plan paid for by the claimant should not be included.
+The information given must be accurate, otherwise the claimant could be accused of a false or misleading statement. If the claimant needs to update a report, for example to change the amount of earnings reported, they should call the Telephone Reporting Service immediately. The  Commission has a policy that they will not charge or prosecute a claimant for giving false or misleading information if the claimant volunteers the correct information before an investigation begins.
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