ARCHIVED — Vol. 147, No. 7 — March 27, 2013

Registration

SOR/2013-32 March 7, 2013

EMPLOYMENT INSURANCE ACT

Regulations Amending the Employment Insurance (Fishing) Regulations

P.C. 2013-262 March 7, 2013

RESOLUTION

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

March 6, 2013

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. The Employment Insurance (Fishing) Regulations (see footnote 1) are amended by adding the following before section 5:

EARNINGS FROM EMPLOYMENT OTHER THAN EMPLOYMENT AS A FISHER

4.1 If a period of employment for which insurable earnings have been reported on the record of employment falls partially within the fisher’s rate calculation period, the Commission shall, unless presented by the fisher or the employer with evidence of the amount of insurable earnings actually earned in the rate calculation period, allocate the amount of insurable earnings, not including any insurable earnings paid or payable by reason of lay-off or separation from employment, proportionately over that period of employment, on the basis that the fisher earned the same amount of insurable earnings for each of the seven days of each week.

4.2 The insurable earnings paid or payable to a fisher, during the rate calculation period, by reason of lay-off or separation from employment is the lesser of

  • (a) the actual amount of those earnings, and
  • (b) the amount calculated in accordance with the following formula:

    A × 0.18%


    where
    A is the fisher’s insurable earnings during the rate calculation period — not including those referred to in paragraph (a) — paid or payable for the employment that gave rise to the earnings referred to in that paragraph.

EARNINGS FROM EMPLOYMENT AS A FISHER

2. The Regulations are amended by adding the following before section 8:

BENEFIT PERIOD

3. (1) Subsection 8(13) of the Regulations is repealed.

(2) Subsection 8(15) of the Regulations is replaced by the following:

(15) Section 6, subsections 7(1) to (5), sections 8, 9 and 11 and subsections 12(2) and 14(1.1) of the Act do not apply to persons who are claimants under these Regulations.

4. The Regulations are amended by adding the following after section 8:

RATE OF WEEKLY BENEFITS

8.1 For the purposes of calculating a fisher’s rate of weekly benefits,

  • (a) the fisher’s weekly insurable earnings shall be determined by
    • (i) dividing their earnings from employment as a fisher in the qualifying period by the divisor set out in the table to subsection 8.2(1) opposite the applicable regional rate of unemployment, and
    • (ii) adding to the quotient determined in accordance with subparagraph (i) their weekly insurable earnings from employment in the rate calculation period, other than employment as a fisher, not including earnings from any employment that was lost for reasons of misconduct or that was left voluntarily without just cause; and
  • (b) the fisher’s maximum weekly insurable earnings are the maximum yearly insurable earnings as calculated in accordance with section 4 of the Act divided by 52.

8.2 (1) A fisher’s weekly insurable earnings from employment in the rate calculation period, other than employment as a fisher, are their insurable earnings in the rate calculation period, including those from insurable employment that has not ended, divided by the larger of the following divisors:

  • (a) the divisor that equals the number of weeks during the rate calculation period in which the fisher had insurable earnings, and
  • (b) the divisor set out in the table to this subsection opposite the applicable regional rate of unemployment.

TABLE

Regional Rate of Unemployment

Divisor

not more than 6%

22

more than 6% but not more than 7%

21

more than 7% but not more than 8%

20

more than 8% but not more than 9%

19

more than 9% but not more than 10%

18

more than 10% but not more than 11%

17

more than 11% but not more than 12%

16

more than 12% but not more than 13%

15

more than 13%

14

(2) The rate calculation period is the period of 26 consecutive weeks in the fisher’s qualifying period — not taking into account weeks relating to employment in the labour force, within the meaning of section 8.3 — ending with the later of

  • (a) the week
    • (i) before the fisher’s benefit period begins, if it begins on the Sunday of the week in which their last interruption of earnings from employment, other than employment as a fisher, occurs, or
    • (ii) in which the fisher’s last interruption of earnings from employment, other than employment as a fisher, occurs, if their benefit period begins on the Sunday of a week that is after the week in which that last interruption of earnings occurs, and
  • (b) the week before the fisher’s benefit period begins, if they have an insurable employment at the beginning of that period.

(3) However, if the fisher’s qualifying period begins less than 26 weeks before the week with which the rate calculation period ends, the fisher’s rate calculation period is the period beginning the first day of the fisher’s qualifying period and ending the last day of that week.

8.3 A week relating to employment in the labour force is a week in which the fisher has no insurable earnings and is

  • (a) a week in respect of which the fisher has received or will receive
    • (i) workers’ compensation payments, other than a lump sum or pension paid in full and final settlement of a claim made for workers’ compensation payments,
    • (ii) under a wage-loss indemnity plan, any earnings by reason of illness, injury, quarantine, pregnancy or care of a child or children referred to in subsection 23(1) of the Act,
    • (iii) indemnity payments referred to in paragraph 35(2)(f) of the Employment Insurance Regulations, or
    • (iv) earnings because of which, under section 19 of the Act, no benefits are payable to the fisher;
  • (b) a week in which the fisher was
    • (i) attending a course or program of instruction or training to which the fisher was referred by the Commission or by an authority designated by the Commission,
    • (ii) employed under the Self-employment employment benefit or the Job Creation Partnerships employment benefit established by the Commission under section 59 of the Act or under a similar benefit that is provided by a provincial government or other organization and is the subject of an agreement under section 63 of the Act,
    • (iii) prevented from establishing an interruption of earnings by virtue of the allocation of earnings in accordance with section 36 of the Employment Insurance Regulations,
    • (iv) serving a week of the waiting period, or
    • (v) serving a week of disqualification under section 28 of the Act or disqualified under section 30 of the Act for a week of unemployment for which benefits would otherwise have been payable to the fisher;
  • (c) a week of unemployment due to a stoppage of work attributable to a labour dispute at the factory, workshop or other premises at which the fisher was employed; or
  • (d) a week in respect of which benefits have been paid or were payable to the fisher, including a week in respect of which provincial benefits within the meaning of Part III.1 or III.2 of the Employment Insurance Regulations have been paid to the fisher.

5. Paragraph 13(1)(b) of the Regulations is replaced by the following:

  • (b) if the date of delivery of a catch falls within the calculation period that is referred to in section 14 of the Act and that is used for determining benefits other than those for fishers, the earnings of the fisher from employment as a fisher, as determined in accordance with subsections 5(2) and (3), shall be allocated equally to each day of the fishing trip, and earnings for any day falling outside the calculation period shall not be included in the calculation of the benefit rate.

COMING INTO FORCE

6. These Regulations come into force on the later of April 7, 2013 and 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.)

Background

The Employment Insurance Act (EI Act) authorizes the establishment of a system to support fishers by regulations. In this context, the Employment Insurance (Fishing) Regulations (EI Fishing Regulations) set out provisions to provide Employment Insurance (EI) benefits to fishers. The EI Act and its regulations apply to fishers, unless otherwise specified in the EI Fishing Regulations.

For the purposes of EI fishing benefits, a fisher is a self-employed person engaged in fishing or a person engaged in making a catch; any work incidental to making or handling a catch; or constructing a fishing vessel for their own use or for the use of a crew of which the person is a member in making a catch.

EI fishing benefits are first calculated based on earnings from fishing during the qualifying period (31-week period immediately before the start of a claim or since the last claim if benefits were received in the last 31 weeks), divided by the applicable minimum divisor for the unemployment rate of the region where the fisher resides. EI fishing benefits can be paid for up to 26 weeks for each of the two seasons.

In some cases, fishers also have insurable earnings from employment other than those earned as fishers. These fishers receive fishing benefits only if they do not qualify for EI regular benefits under Part I of the EI Act. To determine the weekly insurable earnings from this other employment, the earnings in the rate calculation period of that employment, using only the weeks contained in the fishing qualifying period, are divided by the applicable divisor or by the number of weeks worked, whichever is greater. The weekly earnings from regular and fishing employment are then combined to get the total weekly amount, which is subject to a weekly maximum derived from the maximum insurable earnings.

Issue

As part of the Government’s Jobs, Growth and Long-term Prosperity Act, which received Royal Assent on June 29, 2012, the EI Act was amended to implement a new legislated EI benefit rate calculation approach.

Effective April 7, 2013, the new national approach, Variable Best Weeks (VBW), will come into force and will apply to EI claimants who receive regular or special benefits under Part I of the EI Act. It will not apply to fishers who claim benefits under the EI Fishing Regulations, nor to self-employed individuals who receive benefits under Part VII.1 of the Act. The current regime for calculating EI fishing benefits remains unchanged. The amendments to the EI Fishing Regulations therefore incorporate the provisions removed from the EI Act and EI Regulations as a result of the new VBW benefit rate calculation to ensure that the EI fishing benefit rates continue to be calculated in the same manner.

Objective

To ensure that current practice related to the EI fishing benefit rate calculation remains intact when the VBW calculation method is introduced.

Description

Consequential amendments to the EI Fishing Regulations are required to ensure that the EI fishing benefit rate calculation remains unchanged. These include defining the minimum divisor, the rate calculation period and prescribed weeks and other provisions related to the rate of weekly benefits that would otherwise impact fishing benefits and were previously in the EI Act.

Additionally, as a result of the amendments to the EI Act and EI Regulations, amendments to the EI Fishing Regulations are also required to coordinate cross-references to provisions of the EI Act and EI Regulations.

“One-for-One” Rule

The “One-for-One” Rule does not apply, as these consequential amendments do not impose any incremental administrative burden on business.

Small business lens

The small business lens does not apply to these consequential amendments, as these amendments do not impose any additional administrative or compliance costs on small business.

Rationale

The amendments to the EI Fishing Regulations are required to ensure that the rate calculation for EI fishing benefits remains unchanged when the VBW becomes effective on April 7, 2013. For the purposes of EI, fishers are unique in the way that they qualify for EI and how their benefits are calculated. The VBW approach was designed specifically for claimants who qualify for EI regular and special benefits under Part I of the EI Act, and not for fishers.

Contact

Brian Hickey
Director
Employment Insurance Policy
Skills and Employment Policy Branch
Human Resources and Skills Development Canada
140 Promenade du Portage, Phase IV, 5th Floor
Gatineau, Quebec
K1A 0J9
Telephone: 819-934-4576
Fax: 819-934-6631