Digest of Benefit Entitlement Principles Chapter 8 - Section 12

8.12.0 Other employment during the stoppage of work

The termination of the stoppage of work is not the only factor to consider when deciding whether a disentitlement should be terminated (Digest 8.1.8). Subsection 36(1) of the EIA provides for another, as the following extract shows:

“. . . a claimant who loses an employment, or is unable to resume an employment, because of a work stoppage ... is not entitled to receive benefit until the earlier of

1. the end of the work stoppage, and
2. the day on which the claimant becomes regularly engaged elsewhere in insurable employment.”

The termination of the disentitlement as provided for in the legislation in these circumstances is related to the occurrence of one of two eventualities. The first being the termination of the stoppage of work, which involves the workers (claimants) and activities at a given workplace. However, the second, which consists of becoming regularly employed elsewhere in insurable employment, is an individual event which involves only the claimant, without any tie to the collective employees or activities.

It is up to the claimant to prove that they became regularly engaged in insurable employment elsewhere, since they lost or could not resume employment, due to a stoppage of work (EI Act 36(1)). Employment or a period of employment that preceded the time when the claimant lost or was unable to resume a previous employment will not provide relief in this context (CUB 64431). What can be accepted, however, is part-time employment that started prior to the work stoppage, and then became full time, or where the claimant’s hours were significantly increased since they lost or were unable to resume employment due to a stoppage of work.

8.12.1 Engaged elsewhere in insurable employment

The insurable employment that the claimant has become engaged in must respect the meaning that it is given in the legislation (EI Act 2(1)), which means that an employer-employee relationship exists. Thus, this would exclude all self-employment (CUB 64431) as well as all other occupations that do not, as such, constitute insurable employment.

Finally, the legislative text specifies that the claimant is regularly engaged in insurable employment elsewhere than the place of employment where the stoppage of work is occurring (EI Act 36(1) and CUB 77469). This would exclude all employment that a claimant may begin at the same premises where the stoppage of work exists.

This would mean that a person who resumes their own job before there is a termination to the stoppage of work, would not meet the requirement to have the disentitlement terminated. That person must await the collective return of the workers involved in the stoppage of work, which would then result in the termination of the stoppage of work (EI Act 36(1)(a)), or they would have to meet the conditions of non-application (EI Act 36(4)).

8.12.2 Regularly

To be hired with an employer does not necessarily mean a claimant is regularly engaged; the claimant must work in the new occupation and have some form of work schedule. If the employment is only intended for such a short time that it is impossible to determine its continuity, it is not regular employment, but rather casual employment. The application of the legislation has created abundant jurisprudence and interpretations to support this. The authoritative principles are found in several judgments of the Federal Court of Appeal and the Supreme Court (S.C.C. 1669883, FCA A-1198-84, CUB 9488 and FCA A-765-85, CUB 76911A).

Based on these judgments, the determination of whether a claimant was regularly engaged in insurable employment will require that three criteria be met. These are:

1. was it firm, serious, genuine employment;
2. was there continuity in the employment;
3. was there regularity in the claimant's pattern of work?

An employment will be firm, serious, and genuine when, at a given time, the worker has some assurance of a certain number of predetermined work periods. It would not be so where;

• there is no such assurance,
• the proposed number of work periods is vague, imprecise, not defined, or uncertain,
• it is on an as-needed basis only,
• it is unknown whether the employment will continue or in what manner from day to day (CUB 64431).

The fact that the claimant has worked a certain number of periods does not demonstrate after the fact that the employment meets the first criterion, if such an assurance did not exist either at the time of hiring or at some subsequent time during the employment.

There must also have been continuity in the employment. This means that it was pursued uninterrupted, that is, without a lay-off, end of contract or break in the employer-employee relationship, even for a short period which required a re-employment. Continuity will not be shown when the employment had been for an intermittent, sporadic, occasional or on-call basis (CUB 64431 and CUB 55172).

There must be regularity in the pattern of work. Generally, this means that the claimant worked according to a specific pattern, in terms of a schedule, a number of given hours or days, and that this pattern regularly repeated itself during the pursued employment (CUB 64431). What needs to be determined at this stage is what pattern of work over an interval is representative of the claimant's employment.

An interval could vary from case to case. One could conclude that in the majority of cases, an interval of one week, that is, a period of seven days starting on any day, would be representative of an interval of the employment under question. This interval could be longer or shorter. In the case of a person who was engaged to work one week in two, then two weeks would constitute a representative interval.

Once the representative interval is established, what must be examined is the pattern of work during this interval and in what way it was repeated during the period of employment. At the very minimum, one could consider that there was regularity in the pattern of work when, during the claimant's employment, that specific pattern prevailed for at least two successive intervals, which would be for at least two successive intervals of seven days in the majority of cases. It could just as easily be a pattern of part-time work rather than full-time.

The fact that the person had been employed, or even that they had worked, is not sufficient. What is required, is the fulfillment of all three criteria previously mentioned.

If a claimant had intended to resume the previous employment at the end of the stoppage of work, rather than remain employed at the most recent employment, this may be sufficient to show that the claimant was regularly engaged in other employment (CUB 39266). This factor has no bearing on the "regularity" of the employment in question. It is therefore not a question of demanding that the claimant demonstrate disinterest, distance or detachment from the outcome of the labour dispute by severing all connection with the labour dispute employer.

[April 2019]