Interim Order No. 6 Amending the Employment Insurance Act (Employment Insurance Emergency Response Benefit): SOR/2020-169

Canada Gazette, Part II, Volume 154, Number 16

Registration

SOR/2020-169 July 22, 2020

EMPLOYMENT INSURANCE ACT

Whereas the Minister of Employment and Social Development may, for the purpose of mitigating the economic effects of the coronavirus disease 2019 (COVID-19), pursuant to subsection 153.3(1) ^{footnote a} of the Employment Insurance Act ^{footnote b}, make interim orders;

Whereas, pursuant to subsection 153.3(3)^{footnote a} of that Act, the Minister of Finance consents to the making of the annexed Interim Order;

Whereas, pursuant to subsection 153.3(4)^{footnote a} of that Act, the President of the Treasury Board consents to the making of the annexed Interim Order in respect of Part III of that Act or in respect of a regulation made under that Act for the purposes of that Part;

And whereas the Minister of Employment and Social Development has consulted with the Canada Employment Insurance Commission before making the annexed Interim Order;

Therefore, the Minister of Employment and Social Development, pursuant to section 153.3^{footnote a} of the Employment Insurance Act ^{footnote b}, makes the annexed Interim Order No. 6 Amending the Employment Insurance Act (Employment Insurance Emergency Response Benefit).

Gatineau, July 21, 2020

Carla Qualtrough
Minister of Employment and Social Development

Interim Order No. 6 Amending the Employment Insurance Act (Employment Insurance Emergency Response Benefit)

Amendments

1 (1) Subsection 153.5(1) of the Employment Insurance Act ^{footnote 1} is replaced by the following:

Definitions

153.5 (1) In this Part,

• a) COVID-19 means the coronavirus disease 2019;
• b) benefit period, benefits and insurable earnings have the same meaning as in subsection 2(1); and
• (c) initial claim for benefits has the same meaning as in subsection 6(1).

(2) The portion of subsection 153.5(2) of the Act before paragraph (a) is replaced by the following:

Definition of Claimant

(2) For the purposes of this Part, claimant means a person

(3) Paragraph 153.5(2)(b) of the Act is replaced by the following:

• (b) who could have had a benefit period established on or after March 15, 2020 with respect to any of the benefits referred to in paragraph (3)(a);

2 Section 153.6 of the Act is replaced by the following:

Application of other provisions

153.6 (1) In the case of a claim made for the employment insurance emergency response benefit, the following provisions apply in respect of the employment insurance emergency response benefit, subject to the adaptations set out in subsection (2) and in sections 153.1301 to 153.1309:

• (a) subsections 42(1) and (2) and sections 43, 44, 47, 50 and 52;
• (b) the provisions of Part II;
• (c) the provisions of Part III and IV; and
• (d) the provisions of Part VI, except subsections 112(3) and 114(2) and sections 115 and 140.

Adaptation

(2) A provision referred to in paragraph (1)(a) or (d) is adapted

• (a) to refer, in respect of claimants and the benefits to which it refers, to the claimant within the meaning of this Part and the employment insurance emergency response benefit provided under this Part;
• (b) so that any reference, in the English version, to “entitled” and other parts of speech and grammatical forms of the same word means “eligible” under section 153.9; and
• (c) so that any reference to the regulations made under the authority of this Act is to be read without that reference.

Contrary intention

(3) No other provision of this Act applies in respect of a claim for the employment insurance emergency response benefit unless a contrary intention appears.

3 (1) Section 153.7 of the Act is amended by adding the following after subsection (1):

Payments in advance

(1.1) The Commission may pay the employment insurance emergency response benefit in advance of the customary time for paying it.

(2) Section 153.7 of the Act is amended by adding the following after subsection (2):

Financial aid under section 63

(3) A claimant who receives financial aid as a result of entering into an agreement referred to in section 63 remains eligible to receive the employment insurance emergency response benefit.

4 (1) Subsection 153.8(3) of the French version of the Act is replaced by the following:

Renseignements

(3) Le prestataire fournit au ministre tout renseignement que ce dernier peut exiger relativement à la demande.

(2) Section 153.8 of the Act is amended by adding the following after subsection (3):

Information — Employer

(4) An employer must provide the Minister with any information that the Minister may require in respect of the claim.

No benefit period

(5) For the period referred to in subsection (1), no benefit period is to be established with respect to any of the benefits referred to in paragraph 153.5(3)(a).

5 The Act is amended by adding the following after section 153.13:

Adaptations

Adaptation of English version of section 44

153.1301 For the purposes of applying paragraph 153.6(1)(a), section 44 of the English version is adapted as follows:

Liability to return overpayment

44 A person who has received or obtained an employment insurance emergency response benefit payment for which the person is not eligible, or an employment insurance emergency response benefit payment in excess of the amount for which the person is eligible, shall without delay return the amount, the excess amount or the special warrant for payment of the amount, as the case may be.

Adaptation of section 50

153.1302 For the purposes of applying paragraph 153.6(1)(a), section 50 is adapted as follows:

Eligibility — employment insurance emergency response benefit

50 (1) A claimant who does not provide the Minister with the required information in respect of a claim for the employment insurance emergency response benefit or fails to comply with the requirement under subsection (2) is not eligible for the employment insurance emergency response benefit until they provide the information or comply with the requirement.

Making claim or providing information in person

(2) The Commission may require a claimant or group or class of claimants to be at a suitable place at a suitable time in order to make a claim for the employment insurance emergency response benefit in person or provide additional information about that claim.

Adaptation of subsection 52(2)

153.1303 (1) For the purposes of applying paragraph 153.6(1)(a), subsection 52(2) is adapted as follows:

Decision

(2) If the Commission decides that a person has received money by way of the employment insurance emergency response benefit for which the person was not eligible, or has not received money for which the person was eligible, the Commission must calculate the amount of the money and notify the claimant of its decision.

Adaptation of subsection 52(4)

(2) For the purposes of applying paragraph 153.6(1)(a), subsection 52(4) is adapted as follows:

Amount payable

(4) If the Commission decides that a person was eligible to receive money by way of the employment insurance emergency response benefit, and the money was not paid, the amount calculated is payable to the claimant.

Adaptation of section 58

153.1304 For the purposes of applying paragraph 153.6(1)(b), section 58 is adapted as follows:

Definition of insured participant

58 In this Part, insured participant means

• (a) an insured person who requests assistance under employment benefits and, when requesting the assistance, is an unemployed person for whom a benefit period is established or whose benefit period has ended within the previous 60 months or an unemployed person who paid, in at least 5 of the last 10 years, employee’s premiums that did not entitle the person to a refund under subsection 96(4); and
• (b) a claimant who requests assistance under employment benefits and, when requesting assistance, is an unemployed person receiving or who was in receipt of the employment insurance emergency response benefit.

Adaptation of subsection 112(1)

153.1305 (1) For the purposes of applying paragraph 153.6(1)(d), subsection 112(1) is adapted as follows:

Reconsideration — Commission

112 (1) A claimant or other person who is the subject of a decision of the Commission, or the employer of the claimant, may make a request to the Commission in accordance with subsection (4) for a reconsideration of that decision at any time within

• (a) 30 days after the day on which a decision is communicated to them; or
• (b) any further time that the Commission may allow.

Adaptation of section 112

(2) For the purposes of applying paragraph 153.6(1)(d), section 112 is adapted by adding the following after subsection (3):

Reconsideration of a decision

(4) A request for reconsideration of the decision must be in writing and contain the following information:

• (a) the name of the person making the request and their
  • (i) social insurance number or the business number assigned to them by the Minister of National Revenue, as the case may be,
  • (ii) address and telephone number, and
  • (iii) facsimile number and email address, if any;
• (b) the date on which the decision was communicated to the person;
• (c) the reasons why the person is requesting a reconsideration of the decision; and
• (d) any relevant information that was not previously provided to the Commission.

Filing of request for reconsideration

(5) A request for reconsideration must be filed with the Commission at the address, facsimile number or email address — or in accordance with the electronic filing procedure — provided by the Commission on the website of the Department of Employment and Social Development.

Write-off of amounts wrongly paid

153.1306 (1) An amount payable under section 43 may be written off by the Commission if

• (a) the amount does not exceed $100;
• (b) the debtor is deceased;
• (c) the debtor is a discharged bankrupt;
• (d) the debtor is an undischarged bankrupt in respect of whom the final dividend has been paid and the trustee has been discharged;
• (e) the overpayment does not arise from an error made by the debtor or as a result of a false or misleading declaration or representation made by the debtor, whether the debtor knew it to be false or misleading or not, but arises from
  • (i) a retrospective decision or ruling made under Part IV, or
  • (ii) provision by the Commission of a weekly employment insurance emergency response benefit amount in excess of the amount referred to in subsection 153.10(1); or
• (f) the Commission considers that, having regard to all the circumstances,
  • (i) the amount is uncollectable,
  • (ii) the repayment of the amount would result in undue hardship to the debtor, or
  • (iii) the administrative costs of collecting the amount would likely equal or exceed the amount to be collected.

(2) The portion of an amount owing under section 47 in respect of the employment insurance emergency response benefit received before the Commission notifies the debtor of the overpayment may be written off by the Commission if

• (a) the overpayment does not arise from an error made by the debtor or as a result of a false or misleading declaration or representation made by the debtor, whether the debtor knew it to be false or misleading or not; and
• (b) the overpayment arises as a result of
  • (i) a delay or error made by the Commission in processing a claim for the employment insurance emergency response benefit,
  • (ii) retrospective control procedures or a retrospective review initiated by the Commission,
  • (iii) an error made on the record of employment by the employer,
  • (iv) an incorrect calculation by the employer of the debtor’s insurable earnings, or
  • (v) an error in insuring the employment or other activity of the debtor.

Adaptation of section 112.1

153.1307 For the purposes of applying paragraph 153.6(1)(d), section 112.1 is adapted as follows:

Decision not reviewable

112.1 A decision of the Commission referred to in section 153.1308 is not subject to review under section 112.

Adaptation of portion of subsection 126(1)

153.1308 (1) For the purposes of applying paragraph 153.6(1)(d), the portion of subsection 126(1) before paragraph (a) is adapted as follows:

Certificates

126 (1) An amount or part of an amount payable under Part I, II, VII.1 or VIII.4 that has not been paid may be certified by the Commission

Adaptation of subsection 126(2)

(2) For the purposes of applying paragraph 153.6(1)(d), subsection 126(2) is adapted as follows:

Judgments

(2) On production to the Federal Court, the resulting certificate shall be registered in the Court and when registered has the same force and effect, and all proceedings may be taken, as if the certificate were a judgment obtained in the Court for a debt of the amount specified in the certificate.

Adaptation of section 138

153.1309 For the purposes of applying paragraph 153.6(1)(d), section 138 is adapted as follows:

Obligation

138 Every person employed in insurable employment and every self-employed person must have a Social Insurance Number that has been assigned to that person under an Act of Parliament.

Special Rules

Benefits referred to in paragraph 153.5(3)(a)

153.1310 The following rules apply to a person who made an initial claim for benefits in respect of any of the benefits referred to in paragraph 153.5(3)(a) and who either had, before the coming into force retroactively of this Part, a benefit period established on or after March 15, 2020 with respect to the benefits for which the claim was made, or who would have had, but for the coming into force of this Part on March 15, 2020, a benefit period established on or after that same date with respect to the benefits for which the claim was made:

• (a) the person is deemed to have made a claim for the employment insurance emergency response benefit under section 153.8;
• (b) the rules set out in Part VIII.4 apply to a claim for the employment insurance emergency response benefit, with the exception of the rule requiring that a claim be made in accordance with subsection 153.8(1); and
• (c) the benefits referred to in paragraph 153.5(3)(a) received on or after March 15, 2020 are deemed to be the employment insurance emergency response benefit and, as the case may be,
  • (i) the person is to be paid, for each week for which they receive the benefits referred to in paragraph 153.5(3)(a), an amount of employment insurance emergency response benefit that is equal to the difference between the amount set out in subsection 153.10(1) and the amount of benefits that they received for the week in question, and
  • (ii) each amount of benefits received for a week that exceeds the amount set out in subsection 153.10(1) is deemed to be equal to the amount set out in that subsection and section 44 does not apply to any amount of benefits received for a week that exceeds the amount set out in subsection 153.10(1).

6 Section 153.14 of the Act is amended by striking out the “and” at the end of paragraph (d), by adding “and” at the end of paragraph (e) and by adding the following after paragraph (e):

• (f) Interim Order No. 6 Amending the Employment Insurance Act (Employment Insurance Emergency Response Benefit).

Conflict

7 For greater certainty, this Interim Order applies despite any provision of the Employment Insurance Act or any of its regulations.

Coming into Force

8 This Interim Order is deemed to have come into force at 00:00:05 a.m. on March 15, 2020.

EXPLANATORY NOTE

(This note is not part of the Interim Order.)

Issues

As per subsection 153.3(1) of the Employment Insurance Act, the Minister of Employment and Social Development may make interim orders for the purpose of mitigating the economic effects of the coronavirus disease 2019 (COVID-19).

Workers may be eligible for the Employment Insurance (EI) Emergency Response Benefit if they have stopped working because of reasons related to COVID-19, or are eligible for EI regular or sickness benefits, or have exhausted their EI regular or fishing benefits between December 29, 2019, and October 3, 2020.

This Interim Order provides authorities for administrative and integrity functions related to the EI Emergency Response Benefit that are closely aligned with those of the related Canada Emergency Response Benefit Act. This Interim Order also provides authorities to enable EI Emergency Response Benefit claimants to benefit from substantive supports under Part II of the Employment Insurance Act, such as training and wage subsidies, and provides that the provisions under Part VII, which may require a claimant to repay a portion of EI benefits when their annual income exceeds a threshold, do not apply to the EI Emergency Response Benefit. This Interim Order includes an explicit cessation of effect clause that applies to the provisions of this Interim Order. The effect of this clause is that all provisions made under this Interim Order will cease to apply on the earlier of December 31, 2020, or the day on which the Interim Order is repealed.