ARCHIVED — Vol. 146, No. 26 — December 19, 2012

Registration

SOR/2012-263 November 30, 2012

EMPLOYMENT INSURANCE ACT

Regulations Amending the Employment Insurance (Fishing) Regulations

P.C. 2012-1614 November 29, 2012

RESOLUTION

The Canada Employment Insurance Commission, pursuant to section 153 of the Employment Insurance Act (see footnote a) makes the annexed Regulations Amending theEmployment Insurance (Fishing) Regulations.

November 28, 2012

IAN SHUGART
Chairperson
Canada Employment Insurance Commission

MARY-LOU DONNELLY
Commissioner (Workers)
Canada Employment Insurance Commission

JUDITH ANDREW
Commissioner (Employers)
Canada Employment Insurance Commission

His Excellency the Governor General in Council, on the recommendation of the Minister of Human Resources and Skills Development, pursuant to section 153 of the Employment Insurance Act (see footnote b), approves the annexed Regulations Amending the Employment Insurance (Fishing) Regulations, made by the Canada Employment Insurance Commission.

REGULATIONS AMENDING THE EMPLOYMENT
INSURANCE (FISHING) REGULATIONS

AMENDMENTS

1. (1) Subsection 8(3.1) of the Employment Insurance (Fishing) Regulations (see footnote 1) is replaced by the following:

(3.1) A fisher is not a new entrant or re-entrant to the labour force if the fisher has been paid one or more weeks of benefits referred to in paragraph 12(3)(a) or (b) or 152.14(1)(a) or (b) of the Act in the period of 208 weeks preceding the period of 52 weeks before their qualifying period or in other circumstances, as prescribed by regulation, arising in that period of 208 weeks.

(2) Subsection 8(8.1) of the Regulations is replaced by the following:

(8.1) A fisher is not a new entrant or re-entrant to the labour force if the fisher has been paid one or more weeks of benefits referred to in paragraph 12(3)(a) or (b) or 152.14(1)(a) or (b) of the Act in the period of 208 weeks preceding the period of 52 weeks before their qualifying period or in other circumstances, as prescribed by regulation, arising in that period of 208 weeks.

(3) Subsection 8(16) of the Regulations is replaced by the following:

(16) A benefit period established under subsection (1) or (6) is a benefit period for the purposes of paragraph 8(1)(b), subsection 10(3), paragraph 10(6)(b), subsection 152.11(3) and paragraph 152.11(7)(b) of the Act.

2. (1) The portion of subsection 11(1) of the Regulations before the table is replaced by the following:

11. (1) Despite subsections 7.1(1) to (2.1), (6) and (7) of the Act, the amount of insurable earnings that an insured person, other than a new entrant or re-entrant to the labour force, requires under section 8 to qualify for benefits is increased to the amount set out in the applicable column of the table to this subsection if the insured person accumulates one or more violations in the 260 weeks before making an initial claim for benefits.

(2) Subsection 11(3) of the Regulations is replaced by the following:

(3) A violation shall not be taken into account under subsection (1) or (2) in more than two initial claims for benefits under these Regulations or Part Ⅰ or VII.1 of the Act if the claimant qualified for benefits with the increased amount of insurable earnings in respect of each of those claims.

(3) Section 11 of the Regulations is amended by adding the following after subsection (5):

(6) A violation accumulated by an individual under section 7.1 or 152.07 of the Act is considered to be a violation for the purposes of this section on the day on which the notice of violation was given to the individual.

3. (1) Paragraph 14.1(1)(b) of the Regulations is replaced by the following:

  • (b) would have been entitled to receive the benefits referred to in that subsection for that same period, had they not been paid those provincial benefits.

(2) Paragraph 14.1(2)(b) of the Regulations is replaced by the following:

  • (b) the reference to “the percentage of benefits paid for a week” in subsection 25(2) of the Employment Insurance Regulations shall be read as a reference to “the percentage of benefits that the claimant would have been entitled to receive for a week as benefits referred to in subsection 8(3.1) of the Employment Insurance (Fishing) Regulations, had they not been paid provincial benefits,”.

4. (1) Paragraph 14.2(1)(b) of the Regulations is replaced by the following:

  • (b) would have been entitled to receive the benefits referred to in that subsection for that same period, had they not been paid those provincial benefits.

(2) Paragraph 14.2(2)(b) of the Regulations is replaced by the following:

  • (b) the reference to “the percentage of benefits paid for a week” in subsection 25(2) of the Employment Insurance Regulations shall be read as a reference to “the percentage of benefits that the claimant would have been entitled to receive for a week as benefits referred to in subsection 8(8.1) of the Employment Insurance (Fishing) Regulations, had they not been paid provincial benefits,”.

5. Section 14.5 of the Regulations is replaced by the following:

14.5 If a week of provincial benefits has been taken into account for the purpose of section 14.1 or 14.2 or any of sections 76.1 to 76.13 or 76.19 of the Employment Insurance Regulations, no week of benefits paid under section 22 or 23 of the Act shall be taken into account for that same purpose.

COMING INTO FORCE

6. These Regulations come into force on the Sunday after the 10th sitting day after the day on which they are tabled in the House of Commons.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue

The Employment Insurance Act (EI Act) authorizes the establishment of a scheme to support self-employed fishers by regulation. In this context, the Employment Insurance (Fishing) Regulations (EI Fishing Regulations) set out provisions specific to fishers in providing for EI benefits. The EI Act and any regulations made under the Act apply to fishers, unless otherwise specified in the EI Fishing Regulations.

Amendments to the EI Act may affect provisions in the EI Fishing Regulations. When such amendments are made, changes are also required to the EI Fishing Regulations to ensure that fishers who claim EI benefits are treated equitably under the program when compared to other claimants.

On January 1, 2010, the Fairness for the Self-Employed Act came into force, amending the EI Act to allow for the provision of EI maternity, parental, sickness and compassionate care benefits (special benefits) to self-employed persons who enter into an agreement with the Canada Employment Insurance Commission. As fishing is a seasonal occupation, it is possible for fishers to have income from other self-employment, and they may be eligible to claim EI benefits as either a fisher or a self-employed person. Therefore, the provisions that resulted from the Fairness for the Self-Employed Act are to apply to fishers in the same way as other claimants. However, the EI Fishing Regulations did not take into account the payment of EI special benefits to self-employed claimants. Consequently, a discrepancy in treatment existed in the EI Fishing Regulations.

Additionally, a technical error existed in the EI Fishing Regulations which could have allowed for double counting of weeks for persons who received both EI fishing benefits and provincial benefits (i.e. under the Quebec Parental Insurance Plan, as Quebec is currently the only province with a provincial plan). The EI Fishing Regulations provide that, where a week of provincial benefits has been taken into account for purposes of determining whether a fishing claimant is a new entrant/re-entrant (NERE) to the EI program, EI maternity or parental benefits paid are not to be taken into account for the same weeks. This is to ensure that entitlement to EI benefits as a fisher takes into account the existence of a provincial plan. Previously, this provision applied to only the winter benefit period, while fishers may be eligible for benefits in both a summer and winter period. To this date, there are no records of weeks being taken into account twice for the purposes of the summer benefit period and determining if a fisher is a NERE. However, an amendment is necessary to ensure with certainty that the provision applies to both the summer and winter benefit periods for fishers to correctly reflect the policy intent.

Objectives

  • To provide policy coherence between the EI Fishing Regulations and the self-employed provisions of the EI Act;
  • To correct a technical error.

Description

Amendment #1 — To recognize under the EI Fishing Regulations maternity and parental benefits paid to self-employed claimants for the purpose of the exception from the new entrant/re-entrant (NERE) requirements

NEREs to the EI program are required to satisfy increased entrance requirements to qualify for benefits. In the case of fishers, the NERE requirement is $5,500 in earnings from fishing, rather than $2,500–$4,200. However, the EI Act and the EI Fishing Regulations provide an exception from this provision for claimants who have received maternity or parental benefits in the four years preceding their pre-qualifying period in respect of a new claim for benefits. This amendment to the EI Fishing Regulations extends the NERE exception to fishing claimants who received maternity or parental benefits as a self-employed person during this period.

Amendment #2 — To recognize self-employed claims for the purposes of establishing a benefit period as a fisher and the cancellation or termination of a previous benefit period

Under the EI Act, a benefit period may not be established for a claimant if they have a previous benefit period that has not ended, ensuring that no claimant may have concurrent benefit periods. Amendments to the EI Act resulting from the Fairness for the Self-Employed Act provide that the same treatment applies to self-employed claimants. Consequential to these amendments, the amendment to the EI Fishing Regulations ensures that a benefit period established as a self-employed person is recognized when a claimant applies for fishing benefits and that no claimant may have concurrent benefit periods as a self-employed person and a fisher.

Additionally, in this context, the EI Act provides the authority to cancel the portion of a claimant’s benefit period when no benefits were paid and the claimant is eligible to establish a new benefit period under the Act. This is often done when the claimant is eligible to receive a higher benefit rate on their new claim. The amendment to the EI Fishing Regulations ensures that a benefit period established for a fisher may be cancelled to allow for the establishment of a benefit period as a self-employed person, should the claimant qualify for it.

Amendment #3 — Increased entrance requirements for fishing benefits for those who have committed a violation and the application of those violations

Claimants who are found to have committed violations under the EI Act are subject to increased entrance requirements (i.e. up to double the amount of required earnings from fishing) when making a claim for benefits. However, the EI Act places a limitation on the application of violations. Specifically, a violation may not be taken into account in more than two claims for benefits if the claimant qualified for benefits by satisfying the increased entrance requirements. Prior to this amendment, the EI Fishing Regulations contained a similar provision, but imposed that limitation only to claims for fishing benefits.

To ensure that the application of this limitation on violations is applied equally to all claims for benefits, this amendment to the EI Fishing Regulations applies this limitation equally to claims made as a fisher, claims under Part Ⅰ of the EI Act (as an EI regular claimant), or as a self-employed person under the EI Act. The amendment further ensures that a violation made as an EI regular claimant or as a self-employed claimant is recognized as a violation under the EI Fishing Regulations. This allows for the equal application of the increased entrance requirements to all claims for EI benefits.

Amendment #4 — To ensure that the no double counting of maternity and parental weeks provision is applied to both summer and winter benefit periods for fishers for the purpose of determining a NERE to the program

The EI Fishing Regulations provide that a week of provincial maternity or parental benefits is recognized as a week of EI benefits for the purpose of defining a NERE to the EI program. This amendment ensures that this provision applies equally to both the summer and winter benefit periods for fishers.

Consultation

The amendments to the EI Fishing Regulations are consequential and technical in nature. These amendments do not represent a change in policy or an expenditure of new funds. Consequently, consultation with external stakeholders was not required.

“One-for-One” Rule

The “One-for-One” Rule does not apply, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply, as there are no costs on small business.

Rationale

The amendments to the EI Fishing Regulations are required to ensure policy coherence with the EI Act. They are consequential to legislative provisions of the EI Act and are enabling in nature. In this context, the amendments harmonize the EI Fishing Regulations with the self-employed provisions in the EI Act.

With regard to the amendment recognizing self-employment benefits for purposes of establishing whether a fisher is a NERE (Amendment 1), amending the EI Fishing Regulations ensures that these fishers are not considered NEREs and therefore would be entitled to receive benefits as a fisher without having to meet the NERE requirements.

Implementation, enforcement and service standards

Human Resources and Skills Development Canada will use existing EI compliance mechanisms to ensure that the provisions contained in the EI Fishing Regulations are properly implemented.

Contact

Michael Duffy
Director
Legislative and Regulatory Policy Design
Employment Insurance Policy
Human Resources and Skills Development Canada
140 Promenade du Portage, Phase IV, 5th Floor
Gatineau, Quebec
K1A 0J9
Telephone: 819-997-5034
Fax: 819-934-6631