Qualifying for Employment Insurance (8:III)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 1, 2023.

A. Insurable Employment

Sections 5(1) and (2) of the EI Act set out what is and what is not insurable employment. Please note that s. 5(2) outlines specific instances of employment that are not insurable (e.g., employment in Canada by an international organization, by a foreign government, or by His Majesty in right of a province). When in doubt, the reader should consult s. 5 of the EI Act and s. 3 of the EI Regulations.

Generally, if the employer has deducted EI premiums, then the employment is insurable. However, it is the nature of the employment, and not the premiums paid, that is determinative.

Some disputes are determined solely by the Canada Revenue Agency (“CRA”). These disputes concern s. 90(1) of the EI Act, and include:

(a) whether an employment is insurable;

(b) how long an insurable employment lasts, including the dates on which it begins and ends;

(c) what is the amount of any insurable earnings;

(d) how many hours an insured person has had in insurable employment;

(e) whether a premium is payable;

(f) what is the amount of a premium payable;

(g) who is the employer of an insured person;

(h) whether employers are associated employers; and

(i) what amount shall be refunded under s. 96(4) to (10).

Appeals of decisions by the CRA are made first to the Minister of National Revenue (within 90 days of being informed of the decision), and then to the Tax Court of Canada (EI Act, s. 103). Tax Court decisions can be appealed to the Federal Court of Appeal under s. 27 of the Federal Court Act, RSC 1985, c. F-7.

B. Qualifying Period

1. General

To qualify for EI benefits, a claimant must have worked a certain number of hours of insurable employment during the claimant’s qualifying period. The required number of hours may vary according to the location of the claimant, and the unemployment rate in the region they live in. The definition of qualifying period is set out in s. 8(1) of the EI Act. This is usually the shorter of either:

(a) the 52-week period immediately before the benefit period commences under s. 10(1);

(b) the period that begins on the first day of an immediately preceding benefit period and ends with the end of the week before the beginning of a benefit period under s. 10(1) – i.e., the period between the beginning of a prior claim and the beginning of the present claim.

2. Extensions of the Qualifying Period

The qualifying period may be extended (i.e., the Commission will look further back in time) up to a maximum of 104 weeks, as set out in s. 8(7) of the EI Act. It may be extended if the claimant can prove that they were unable to work during any of the weeks of the qualifying period because of:

(a) illness, injury, quarantine, or pregnancy;

(b) confinement in a jail, penitentiary, or other similar institution and was not found guilty of the offence for which the person was being held or any other offence arising out of the same transaction;

(c) receiving assistance under employment benefits; or

(d) the claimant has left the job due to hazardous work or working conditions. This covers situations where the claimant has ceased to work because to continue would have entailed danger to the worker, the worker’s unborn child, or a child whom the worker was breast-feeding (EI Act, s. 8(2)).

Note: The extension under subsection (d) is limited to situations where a worker would receive payments under provincial law. Many provinces, including BC, do not yet provide for such payments. Consequently, BC workers cannot use (d) as a ground to extend the qualifying period.

The absolute maximum extension of a qualifying period is 104 weeks (two years). After 104 weeks, no extensions can be made to the claimant’s qualifying period.

It is worth noting that the same insurable hours cannot be used for two separate claims.

C. Minimum Hours of Employment Required

1. Required Hours

The number of hours needed to establish a claim for EI regular benefits is based on the regional variable entrance requirements for all claimants. This is based on the regional rate of unemployment in the region where the claimant ordinarily resides.

A claimant will need to have accumulated between 420 and 700 hours of insurable employment during their qualifying period to be eligible to receive EI regular benefits (EI Act, s. 7(2)).

Unemployment rates for EI Economic Regions can be found online at https://srv129.services.gc.ca/ei_regions/eng/rates_cur.aspx.

You can find your economic region by searching your postal code at the following link: https://srv129.services.gc.ca/ei_regions/eng/postalcode_search.aspx.

The number of hours that an insured person needs under s. 7 to qualify for benefits is increased to the number shown under s. 7.1(1) of the EI Act if one or more violations have occurred in the 260-week period prior to the initial claim (see Section IX: Keeping Out of Trouble).

Note: Due to COVID-19, for EI claims established between September 26, 2021 and September 24, 2022, claimants only needed 420 hours of insurable employment to qualify for regular benefits, regardless of where they lived in Canada. These were temporary measures enacted during the COVID-19 pandemic and have since reverted to the regular entrance requirements.

2. Youth and EI

When a minor is engaged in insurable employment and is making contributions to the plan, they are eligible for EI benefits in the same manner as an adult.

D. Interruption of Earnings

To establish a claim, the worker must have an “interruption of earnings.” An interruption of earnings is defined in EI Regulations s. 14 as occurring when:

an insured person is laid off or separated from an employment and has a period of seven or more consecutive days during which no work is performed for that employer and no earnings are payable from that employment.

Layoff, the end of a contract, and dismissal can all be causes of an interruption of earnings.

A substantial reduction in work hours, such as transitioning from full-time employment to one day a week or less, does not meet the criteria for an interruption of earnings for regular benefits. Therefore, an individual whose work hours are substantially reduced cannot file a claim unless they experience a complete week of unemployment. Special benefits may be an exception to this rule. However, if there is an interruption of earnings from one of two part-time jobs with the same employer, the claimant may be eligible.

Note: In the case of special benefits, an interruption of earnings is deemed to have occurred when a worker experiences a reduction in earnings exceeding 40% of their normal weekly earnings.

1. Weeks of Unemployment

A “week of unemployment” is defined in s. 11(1) of the EI Act as “a week in which the claimant does not work a full working week.” However, the subsequent subsections of s. 11 describe situations which do not amount to an interruption of earnings as defined in s. 14.

E. Record of Employment

Typically, the record of employment (“ROE”) serves as the primary proof to establish an interruption of earnings. Employers have an obligation to issue an ROE for an insured individual when there is an interruption of earnings (EI Regulations, s. 19(2)).

An employer who completes a paper form must provide an employee with an ROE within five days of the first day of the interruption of earnings, or the day on which the employer becomes aware of the interruption of earnings.

However, when the ROE is completed in electronic form, it must be submitted to the Commission no later than five days after the end of the pay period in which the first day of the interruption of earnings occurred. The rules governing this process are outlined in s. 19(3.1) of the EI Regulations. If there are thirteen or fewer pay periods within a year, the ROE must be submitted to the Commission no later than fifteen days after the first day of the interruption of earnings. It is important to note that when an employer completes an ROE in electronic form, they are not required to provide a copy to the employee.

The ROE contains crucial information for an EI claim. It sets out the first and last dates of employment, the total hours worked, and the total earnings. These details are utilized to calculate the eligible amount of benefits. Additionally, the ROE indicates the reason for separation. In cases where it states that the claimant resigned or was terminated, the Commission is obligated to investigate the circumstances and reasoning. Based on the Commission’s findings, the claimant may be disqualified from receiving regular benefits entirely (see Section VI.C: Effect of Earnings).

If the claimant disagrees with statements in the ROE, they can ask the employer to correct them. The claimant should also bring the errors to the Commission’s attention at the time of application.

Note: It is crucial for claimants who have held multiple jobs during the qualifying period to retain the ROEs from each employer.

F. Filing an Application

Applications should be filed during the first full week of unemployment (see Appendix A: Checklist for Initial Application for EI Applications). However, as a matter of policy, applications will be automatically “antedated” (see Section V.B: Antedating) for up to four weeks following the week of the interruption of earnings. If the claimant delays longer than this, they may lose benefits unless they are able to show “good cause” for the delay. Because of this, if a claimant cannot get an ROE immediately, they should still go to the nearest Canada Employment Insurance Commission office and complete an application. Usually, the Commission will want to have an ROE before they process the claim. However, claimants should always ensure they apply on time even if they do not yet have their ROE. The Claimant should make efforts to get the ROE from the employer. If the Claimant is unsuccessful, the Commission will contact the employer if the record is not completed on time. If necessary, a claimant may prove their employment history and insurable earnings by filing an application supported by pay slips and cheque stubs, etc.

Note: Applications may be filed online through the ESDC website. Applicants filing online must still submit their ROE(s) by mail or in person. If the claimant’s ROE has a “W” or “S” serial number, their employer has provided the ROE electronically to the local office and the claimant is not required to submit the paper copy. Claimants may review and edit their claim information online by using their My Service Canada Account (“MSCA”).

For general information about filing an application and about the EI system, visit: https://www.canada.ca/en/services/benefits/ei/ei-apply-online.html.

© Copyright 2023, The Greater Vancouver Law Students' Legal Advice Society.