Benefit Period of Employment Insurance (8:V)

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

A. Introduction

When a claim is established, the claimant’s “benefit period” will begin. Under s. 10(1) of the EI Act, the benefit period begins on the Sunday at the beginning of the week in which the interruption of earnings occurs, or on the Sunday of the week in which the initial claim for benefit is made, whichever is later.

Benefits will only be paid during the benefit period.

B. Antedating

If an application for EI benefits was not filed within the first four weeks after the week in which the claimant experienced their interruption of earnings, they can ask that the claim be antedated back to the first date when it could have been filed under s. 10(4). The claimant must establish that good cause existed for the delay in filing. “Good cause” must be demonstrated for each day until the date the application was actually made. If the claim is filed within the first four weeks, it is automatically antedated to the first date of eligibility.

What is “Good Cause”? Good cause has typically been interpreted narrowly. Simple ignorance of the requirements of the EI Act has not been considered good cause, though reasonable reliance on bad advice from the employer, union, a legal advisor, or the Commission itself usually meets the requirements.

In Attorney General v Burke, 2012 FCA 139, a claimant asked for his application to be backdated because he had expected to be rehired and hence did not apply for EI until after the regular deadline. The Federal Court of Appeal upheld the previous decisions granting an antedate on the basis that the claimant had done what a reasonable person would do.

C. Income That is Treated as Earnings

Section 35(2) of the EI Regulations defines what will be considered earnings for EI purposes.

Income that counts as “earnings” includes, but is not limited to:

a) wages, salary, or commission;

b) retirement pension;

c) bonuses and gratuities;

d) severance pay;

e) vacation pay;

f) workers’ compensation payments;

g) group wage-loss insurance.

It is important to note that some income, while generally considered as earnings, will not prevent an interruption of earnings. For example, receiving severance pay or vacation pay following a layoff will not delay the occurrence of an interruption of earnings. The claimant should still apply for EI as soon as possible after they stop working to make sure their application is not late, even if the money they get from the employer due to the layoff may delay the start of their actual EI benefits.

Although the claimant will need to wait until the received funds are exhausted before being eligible to receive benefits, they must still apply for EI immediately. In such cases, the benefit period will be extended to make up for the weeks it takes to use up these earnings.

D. Income That Is Not Treated as Earnings

Section 35(7) of the EI Regulations exempts certain sources of income from being regarded as earnings. These include:

• disability pension or a lump sum or pension paid in full and final settlement of a claim made for workers’ compensation payments;
• payments under a sickness or disability wage-loss indemnity plan that is not a group plan;
• relief grants in cash or in kind;
• retroactive increases in wages or salary;

For more details, see section 35(7) of the EI Regulations.

Cases suggest that in certain circumstances some earnings may not delay the start of an EI claim. In Attorney General of Canada v Bielich, 2005 FCA 363, the court allowed a $24,000 payment to be exempted from the claimant’s allocation of earnings because the purpose of the payment was to compensate the claimant for giving up his right to seek reinstatement, not to compensate for lost pay.

Note: Retirement pensions are generally considered income and are deducted from EI benefits. However, if the claimant accumulates all the hours needed to qualify for EI after the date their pension starts, then their pension money will not be deducted from their EI benefits (see EI Regulations, s. 35(7)(e)).

E. The Waiting Period

Before receiving any EI benefits, a claimant must serve a one week “waiting period” during which they are unemployed and otherwise eligible for benefits (EI Act, s. 13).

This waiting period also applies to maternity, parental, caregiver, and sickness claims. For caregiver benefits, it can be deferred for the second family member if benefits are split, but the first person must serve it. If a claimant works during the waiting period, 100 percent of their earnings will be deducted from the first three (and no more than three) weekly benefit cheques.

F. Length of Benefit Period

The benefit period for regular EI benefits is 52 weeks (EI Act, s. 10(2)). However, this period can sometimes be extended to more than 52 weeks. The criteria for this is set out in s. 10(10) of the EI Act. The benefit period can be extended when a claimant proves that, for any week during that benefit period, the claimant was not entitled to benefit by reason of:

• being confined in a jail, penitentiary, or other similar institution and they were not found guilty of the offence for which they were being held or any other offence arising out of the same transaction;

• receiving earnings paid because of the complete severance of their relationship with their former employer (i.e., “using up” severance pay, vacation pay, etc.);

• receiving workers’ compensation payments for an illness or injury; or

• receiving payments under a provincial law on the basis of having ceased to work because continuing to work would have entailed danger to the claimant, their unborn child, or a child they are breast-feeding. BC residents are not entitled to these payments, this does not apply.

The length of any benefit period extended for these reasons cannot exceed 104 weeks (EI Act, s. 10(14)).

G. Payment of Regular Benefits

Where a benefit period for regular benefits has been established for a claimant, benefits may be paid to the claimant for each week of unemployment that falls in the benefit period, subject to the maximum benefit periods established in the EI Act, section 12.

The maximum number of weeks for which benefits may be paid in a benefit period (other than special benefits) are determined in accordance with the table in Schedule I of the EI Act by reference to the regional rate of unemployment that applies to the claimant and the number of hours of insurable employment of the claimant in their qualifying period.

Refer to Canada’s EI Economic Region map to determine whether the claimant was living in one of the economic regions.

H. Termination of Benefit Period

Once a benefit period is established, it continues to run, regardless of whether the claimant has resumed employment (although full benefits will not be paid in this case), unless the benefit period is terminated.

Section 10(8) of the EI Act states that a benefit period terminates when:

a) no further benefits are payable to the claimant in their benefit period;

b) the benefit period would otherwise end under this section; or

c) the claimant

• requests that their benefit period end,

• makes a new initial claim for benefits, and

• qualifies as an insured person to receive benefits, or qualifies as a self-employed person to receive benefits, under the Act.

Note: The calculation of benefit rates under the EI Act makes the timing of the decision to conclude one claim and initiate a new one crucial.

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