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EI - General. Chalifour-Racine v. Canada (Attorney General)
In Chalifour-Racine v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal allows a Charter s.15 ['discrimination'] JR, this brought against a ruling by the Appeal Division of the Social Security Tribunal supporting provisions of the EI Act which require that claimants "are not entitled to receive some or all of the regular employment insurance (EI) benefits that they otherwise would have been entitled to receive when they lose their employment shortly before, during, or shortly following their maternity and parental leaves".
Here the court reviews the basic EI regime and procedures:[30] As noted, the EI Act establishes a compulsory insurance scheme to which employers and employees must contribute. For employees, the EI Act creates two types of benefits: regular (i.e. job loss) benefits and special benefits (currently, maternity and parental benefits as well as benefits for interruptions in earnings due to illness, quarantine or compassionate care). Self-employed individuals may also choose to participate in the scheme but are only entitled to receive special benefits.
[31] Regular benefits are payable when an employee, who meets the entitlement criteria, loses their employment through no fault of their own. To be entitled to receive regular benefits, claimants must be capable of work, available for work, and unable to obtain suitable employment: EI Act, paragraph 18(1)(a). In addition, they are expected to be searching for employment and may be required to establish to the satisfaction of the Commission that they are making reasonable and customary efforts to obtain suitable employment: EI Act, paragraph 18(1)(a) and subsection 50(8).
[32] To ground an entitlement to benefits, claimants must work the required number of hours during a statutorily-defined qualifying period, which is the shorter of the 52-week period immediately preceding the start date of an EI claim or the period since the start of a previous claim: EI Act, subsection 8(1).
[33] Under the EI Act, in certain circumstances, a qualifying period may be extended to a maximum of 104 weeks when it begins 52 weeks before the claim: EI Act, subsection 8(7). Subsections 8(2) and 8(5) of the EI Act set out the circumstances during which the qualifying period may be extended, which do not include periods when a claimant is on maternity or parental leave and in receipt of maternity or parental benefits. They do encompass a variety of other situations, though, including when a claimant is imprisoned but not subsequently convicted. Subsections 8(2) and 8(5) of the EI Act provide as follows:"Extension of qualifying period"
"Prolongation de la période de référence"
"8 (2) A qualifying period mentioned in paragraph (1)(a) is extended by the aggregate of any weeks during the qualifying period for which the person proves, in such manner as the Commission may direct, that throughout the week the person was not employed in insurable employment because the person was"
"8 (2)"" Lorsqu’une personne prouve, de la manière que la Commission peut ordonner, qu’au cours d’une période de référence visée à l’alinéa (1)a) elle n’a pas exercé, pendant une ou plusieurs semaines, un emploi assurable pour l’une ou l’autre des raisons ci-après, cette période de référence est prolongée d’un nombre équivalent de semaines :"
"(a) incapable of work because of a prescribed illness, injury, quarantine or pregnancy;"
"a)"" elle était incapable de travailler par suite d’une maladie, d’une blessure, d’une mise en quarantaine ou d’une grossesse prévue par règlement;"
"(b) confined 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;"
b) elle était détenue dans une prison, un pénitencier ou une autre institution de même nature et n’a pas été déclarée coupable de l’infraction pour laquelle elle était détenue ni de toute autre infraction se rapportant à la même affaire;
"(c) receiving assistance under an employment support measure other than one referred to in paragraph 59(c) or (d); or"
"c)"" elle recevait de l’aide dans le cadre d’une mesure de soutien à l’emploi autre que celle prévue aux alinéas 59c) ou d);"
"(d) receiving payments under a provincial law on the basis of having ceased to work because continuing to work would have resulted in danger to the person, her unborn child or a child whom she was breast-feeding."
"d)"" elle touchait des indemnités en vertu d’une loi provinciale du fait qu’elle avait cessé de travailler parce que la continuation de son travail la mettait en danger ou mettait en danger son enfant à naître ou l’enfant qu’elle allaitait."
"…"
"[…]"
"Period not counted if benefits received"
"Période n’entrant pas en ligne de compte"
"(5) For the purposes of subsections (2) and (4), a week during which the person was in receipt of benefits does not count."
"(5)"" Pour l’application des paragraphes (2) et (4), toute semaine pour laquelle la personne a reçu des prestations n’entre pas en ligne de compte." [34] When a claimant has worked the required number of hours during a qualifying period and experiences an interruption in earnings, a benefit period is established for them, during at least part of which benefits will be payable. A benefit period is generally 52 weeks: EI Act, subsection 10(2).
....
[37] The amount of EI regular benefits payable is the equivalent of 55% of a claimant’s average weekly insurable earnings, to a maximum yearly insurable earnings amount: EI Act, sections 4, 14. EI regular benefits are generally payable for 14 to 45 weeks, depending on regional unemployment rates applicable to the region where a claimant resides and the number of hours of insurable employment of the claimant in their qualifying period: EI Act, subsection 12(2), Schedule I. In some circumstances, benefits may be payable over a longer period. For example, in response to COVID-19, the EI Act was amended to increase the maximum number of weeks for which regular benefits may be paid to 50 weeks: EI Act, subsection 12(2.1); An Act to amend the Employment Insurance Act (additional regular benefits), the Canada Recovery Benefits Act (restriction on eligibility) and another Act in response to COVID-19, S.C. 2021, c. 3.
[38] A benefit period ends when a claimant has received all the benefits to which they are entitled or when the other circumstances detailed in subsection 10(8) of the EI Act occur. This subsection states:"End of benefit period"
"Fin de la période"
"10 (8) A benefit period ends when any of the following first occurs:"
"10 (8)"" La période de prestations prend fin à la date de la première des éventualités suivantes à survenir :"
"(a) no further benefits are payable to the claimant in their benefit period, including for the reason that benefits have been paid for the maximum number of weeks for which benefits may be paid under section 12;"
"a)"" le prestataire n’a plus droit à des prestations au cours de sa période de prestations, notamment parce qu’elles lui ont été versées pour le nombre maximal de semaines prévu à l’article 12;"
"(b) the benefit period would otherwise end under this section; or"
"b)"" la période se trouverait autrement terminée au titre du présent article;"
"(c) [Repealed, 2002, c. 9, s. 12]"
"c)"" [Abrogé, 2002, ch. 9, art. 12]"
"(d) the claimant"
"d)"" le prestataire, à la fois :"
"(i) requests that their benefit period end,"
"(i)"" demande de mettre fin à une période de prestations établie à son profit,"
"(ii) makes a new initial claim for benefits under this Part or Part VII.1, and"
"(ii)"" formule une nouvelle demande initiale de prestations au titre de la présente partie ou de la partie VII.1,"
"(iii) qualifies, as an insured person, to receive benefits under this Part or qualifies, as a self-employed person within the meaning of subsection 152.01(1), to receive benefits under Part VII.1."
"(iii)"" remplit les conditions qui lui donnent droit aux prestations prévues par la présente partie, dans le cas où il est un assuré, ou par la partie VII.1, dans le cas où il est un travailleur indépendant au sens du paragraphe 152.01(1)." [39] Special EI benefits are not tied to job loss but are rather payable to employees, or self-employed people who participate in the plan, when they experience an interruption in earnings and are unable to work by reason of maternity or parental leave, illness, injury, quarantine, or to care for a critically ill family member: EI Act, sections 21, 22, 23, 23.1. To receive special benefits, there is no requirement for the claimant to engage in a job search and, indeed, so doing would be incompatible with the reason for which special benefits are provided. . Lance v. Canada (Attorney General)
In Lance v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed a JR, here from a finding of the Appeal Division of the Social Security Tribunal (SST) that reversed an earlier General Division decision relating to misconduct and refusing COVID vaccinations.
Here the court considers the nature of the EI Act:[7] The Employment Insurance Act governs the relationship between the unemployed person and any entitlement to benefits, not the employee’s contract of employment. The Act provides that benefits are payable only if the loss of employment is involuntary (sections 29-31). The Act itself does not define misconduct – that has been left to the Social Security Tribunal and this Court, which has held that misconduct occurs where an employee choses to engage in conduct which would impair the performance of their duties (Mishibinijima v. Canada (Attorney General) 2007 FCA 36 at para. 14).
[8] Consequently, the only question is whether the employee was aware or ought to have been aware of the employer’s policy, the consequences of failing to comply with that policy and engaged in conduct which, objectively, could lead to a loss of employment. Questions such as whether the dismissal was unfair or unjust, whether the policy was well founded, whether there were options short of dismissal and whether the policy or dismissal conformed to the collective agreement are irrelevant to the inquiry as to whether the claimant is entitled to benefits (Cecchetto v. Canada (Attorney General) 2024 FCA 102 (leave to appeal dismissed SCC number 41441, February 13, 2025), Kuk v. Canada (Attorney General) 2024 FCA 74 at paras. 8-9, Sullivan v. Canada (Attorney General) 2024 FCA 7 at para 4; Zhelkov v. Canada (Attorney General) 2023 FCA 240 at para. 3). . Molchan v. Canada (Attorney General)
In Molchan v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal summarized some of the EI scheme:(1) Relevant Framework
[15] Employment insurance benefits are payable to claimants who meet the statutory requirements. To receive benefits, claimants must first qualify to receive benefits. They must demonstrate that they have suffered an interruption of earnings from employment and that they have had a minimum number of hours of insurable employment in a period preceding the claim (EIA, ss. 7, 8).
[16] Claimants must also not be disentitled to receive benefits. Pursuant to paragraph 18(1)(a) of the EIA, a claimant is not entitled to benefits if the claimant fails to prove that they were capable of and available for work and unable to obtain suitable employment.
[17] Subsection 52(1) of the EIA provides that the Commission may reconsider a claim for benefits within 36 months after benefits have been paid or would have been payable. If the Commission decides that a person has received money by way of benefits for which the person was not qualified or to which the person was not entitled, the Commission may seek repayment of the monies overpaid under subsections 52(2) and 52(3) of the EIA. If the Commission is of the opinion that a false or misleading statement or representation was made in connection with the claim, the Commission has an additional 36 months within which to reconsider the claim (EIA, subsection 52(5)).
[18] In exercising its discretion to reconsider a claim, the Commission is guided by a number of principles set out in its Digest of Benefit Entitlement Principles. Chapter 17 of the Digest addresses among other things, error correction and reconsideration. Sections 17.3.2.2, 17.3.3 and 17.3.3.2 are relevant to this application.
[19] Section 17.3.2.2 provides that a Commission error will occur when the Commission has all the relevant information needed to make a decision, but the information does not support the final decision. If benefits were incorrectly paid, the Commission will correct the error currently and no overpayment will be created. However, if the error resulted in a decision that is contrary to the structure of the EIA, the Commission will correct the error retroactively and an overpayment will occur.
[20] Additionally, section 17.3.3, entitled "“Reconsideration policy”", provides that the Commission has developed a policy to ensure a consistent and fair application of section 52 of the EIA and to prevent creating debt when a claimant was overpaid through no fault of their own. It further states that a claim will only be reconsidered when (1) benefits have been underpaid, (2) benefits were paid contrary to the structure of the EIA, (3) benefits were paid as a result of a false or misleading statement, and (4) the claimant ought to have known there was no entitlement to the benefits received. Section 17.3.3.2 specifies that decisions on availability are not decisions that run contrary to the structure of the EIA.
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