Earnings

1. Are the monies "earnings" for benefit purposes?
2. How should the earnings be allocated?

 

Earnings

• Determination: Regulations section 35 Employment Insurance Regulations
• Allocation: Regulations section 36 Employment Insurance Regulations

Related: Act section 19 Employment Insurance Act, subsections 21(3) Employment Insurance Act, 22(5) Employment Insurance Act, 23(3) Employment Insurance Act, sections 45 Employment Insurance Act, 46 Employment Insurance Act, Regulations sections 38, Employment Insurance Regulations 39 Employment Insurance Regulations 

 
Claimant must disclose all monies paid or payable and must prove that the income is not earnings and should not be allocated

Allocation of:

• FOX A-841-96 Judgment Of The Federal Court Of Appeal :  Normal weekly earnings
• BOONE A-866-87 Judgment Of The Federal Court Of Appeal:  Gross amount vs net amount after deductions.
• MCCOMBE A-856-77 Judgment Of The Federal Court Of Appeal:  Money not received e.g. cash shortage
• LEGGE A-71-95 Judgment Of The Federal Court Of Appeal:  Interpreting the words "paid or payable"
• WILSON A-232-94 Judgment Of The Federal Court Of Appeal:  Considers whether the moneys are income arising from employment.
• BRUNEAU A-113-98 Judgment Of The Federal Court Of Appeal:  Allocation of earnings of a teacher
• TURCOTTE A-186-98 Judgment Of The Federal Court Of Appeal:  Commission used the hourly rate declared by claimants to determine their earnings

Damages for Wrongful Dismissal:

• MEECHAN A-140-03 Judgment Of The Federal Court Of Appeal, HARNETT A-34-91 Judgment Of The Federal Court Of Appeal, PLASSE A-693-99 Judgment Of The Federal Court Of Appeal, VERNON A-597-94 Judgment Of The Federal Court Of Appeal, WALFORD A-263-78 Judgment Of The Federal Court Of Appeal:  The meaning of "income" vs earnings under EI legislation. Court award of damages for wrongful dismissal.
• HAMILTON   Judgment Of The Federal Court Of AppealA-362-06, BOURGEOIS A-289-03 Judgment of the Federal Court of Appeal, RADIGAN A-567-99 Judgment Of The Federal Court Of Appeal, DUNN A-231-95 Judgment Of The Federal Court Of Appeal, MELANSON A-703-95 Judgment Of The Federal Court Of Appeal, CAGE A-700-95 Judgment Of The Federal Court Of Appeal, KELLAR A-701-95 Judgment Of The Federal Court Of Appeal:  Considers the Board's finding of fact regarding the terms of a settlement between employer and employee
• ST AMAND A-582-93 Judgment Of The Federal Court Of Appeal:  Considers whether expenses are included in out-of- court settlement
• DESCHAMPS A-489-96 Judgment Of The Federal Court Of Appeal:  Payment representing 2 years' salary
• TOUSIGNANT A-520-01 Judgment Of The Federal Court Of Appeal: portion of settlement awarded as aggravated damages for mental distress.

Farming Earnings:

• VIEL A-725-99 Judgment Of The Federal Court Of Appeal, CARON-BERNIER A-136-96 Judgment Of The Federal Court Of Appeal, DROUIN A-348-96 Judgment Of The Federal Court Of Appeal, LEEMING A-416-97 Judgment Of The Federal Court Of Appeal:  Farm income - considers self employment vs investment

Incapacity / Maternity Monies:

• RUTHERFORD A-241-94 Judgment Of The Federal Court Of Appeal:  WCB final settlement
• LACASSE A-577-97 Judgment Of The Federal Court Of Appeal:  Determining whether payments under Quebec accident indemnity plan constitutes a permanent WCB settlement
• LAUZON A-85-99 Judgment Of The Federal Court Of Appeal:  Upholding CUB 43231 Board Of Referees Decision, disability pension vs. paid sick leave.
• GALL A-94-94 Judgment Of The Federal Court Of Appeal, LALONDE A-378-96 Judgment Of The Federal Court Of Appeal:  Payments re auto accident insurance
• DURAND A-704-99 Judgment Of The Federal Court Of Appeal:  Isolated post allowance continued only on account of maternity leave is not earnings in accordance with section 38 of the EI Regulations   Employment Insurance Regulations

Miscellaneous Monies:

• *BOOTON A-61-10: Any monies arising out of the services performed in connection with acting as an executor/executrix pursuant to a will are considered earnings arising out of employment.
• BUDHAI et al A-610-01 Judgment Of The Federal Court Of Appeal: Allocation of signing bonus, BARNES et al A-659-01 Judgment Of The Federal Court Of Appeal, SVEINSON A-551-00 Judgment Of The Federal Court Of Appeal:  Allocation of retroactive pay arising from new collective agreement.
• DOBLEJ A-274-03 Judgment of the Federal Court of Appeal, WILSON AND CROSBY A-531-00 Judgment Of The Federal Court Of Appeal (CUB 48649) Board Of Referees Decision:  Honorariums received by elected members of Indian bands are earnings in accordance with subsection 57(1) of the UI Regulations   Employment Insurance Regulations(now subsection 35(1) of the EI Regulations   Employment Insurance Regulations ).

Pensions:

• MACNEIL A-75-09 Judgment Of The Federal Court Of Appeal:  Monthly payments received from the Union pension plan constitute earnings for EI purposes as the employer was obliged to contribute to the plan based on the number of hours worked by the claimant. Thus the monthly payments arose from employment.
• COTE A-178-86 Judgment Of The Federal Court Of Appeal:  Pensions. Law existing at time monies became paid or payable.
• MACKEAN A-351-94 Judgment Of The Federal Court Of Appeal:  Considers the exception to pension earnings in UI Regulations paragraph 57(3)(j) Employment Insurance Regulations, now EI Regulations paragraph 35(7)(e) Employment Insurance Regulations. Claimant accepted re-employment with former employer.
• PLEAU A-721-95 Judgment Of The Federal Court Of Appeal:  Early retirement transition supplement and severance pay. Considers the basic characteristics of a "pension"
• CRAIG A-75-94 Judgment Of The Federal Court Of Appeal:  Pension payments vs payments to repay a loan
• POITRAS A-156-95 Judgment Of The Federal Court Of Appeal, FORGET A-160-95 Judgment Of The Federal Court Of Appeal:  Temporary WLI vs permanent pension

Self-employment Earnings:

• CARR A-572-95 Judgment Of The Federal Court Of Appeal:  Considers whether the payment is income from employment or compensation for loss of capital (claimant given part ownership of business).
• LAFAVE A-529-01 Judgment Of The Federal Court Of Appeal: Undistributed profits from business. Gross income of the company after deducting operating expenses incurred, other than capital expenditures, to be allocated.

Separation Monies:

• *BOUCHER-DANCAUSE A-64-10: Monies received from a Civil Court Settlement is earnings within the meaning of Section 35 of the Regulations and must be allocated in accordance with subsection 36(9) of the Regulations if they were paid due to the severance of an employment relationship.
• CHARTIER et al A-353-09 Judgment Of The Federal Court Of Appeal:  (Filed application with the Supreme Court of Canada [33837] Supreme Court of Canada seeking leave to appeal on September 9, 2010.) Monies received from the Companies’ Creditors Arrangement Act for severance pay, wages in lieu of notice or the loss or reduction of benefits arose from employment and constituted “earnings” in accordance with Regulation 35(2). Section 45 and 46 (of the EI Act) calculations can be made at any time when justified by one of the reasons listed in those sections. "Calculations" must also be taken to mean the allocation on which they are based. The validity of the notice issued under section 46 is dependent on the correctness of the allocation period stated therein. The purpose of the notice is to inform claimants that earnings owed to them by their employer will be deducted from the benefits that they have received and to indicate the allocation period for these earnings. The notice is procedural and achieves its purpose once it has been issued and delivered to the recipient.
• COBURN A-76-94 Judgment Of The Federal Court Of Appeal:  Compensatory leave paid at separation.
• FILION A-598-94 Judgment Of The Federal Court Of Appeal & VERNON A-597-94 Judgment Of The Federal Court Of Appeal:  Claimants received a "housing and rental subsidy" as part of the severance package upon mine closure.
• GILLIS A-132-94 Judgment Of The Federal Court Of Appeal:  Considers the term "payable" when severance payment was offered and refused
• VAN DER VEEN "et al" A-560-94 Judgment Of The Federal Court Of Appeal:  Date of allocation of termination payment when bankruptcy agreement resulted in continuing operations
• CANTIN A-392-07 Judgment Of The Federal Court Of Appeal, LEMAY  A-337-05 Judgment Of The Federal Court Of Appeal: Severance pay is to be allocated in accordance with subsections 36(9) and 36(10) of the EI Regulations. CRUMMER A-207-99 Judgment Of The Federal Court Of Appeal, KINKEAD A-217-93 Judgment Of The Federal Court Of Appeal:  Determining if the sum is paid "by reason of" separation from employment
• RADELET A-111-97 Judgment Of The Federal Court Of Appeal:  Retroactive allocation of separation moneys due to subsequent settlement (ref. to CLEGG A-313-89 Judgment Of The Federal Court Of Appeal)
• CANTIN A-392-07 Judgment Of The Federal Court Of Appeal, TREMBLAY A-106-96 Judgment Of The Federal Court Of Appeal:  Allocation of separation monies - whether from date of temporary lay-off or date of final separation
• KING A-486-95 Judgment Of The Federal Court Of Appeal:  Employee wage protection plan - earnings vs relief grant; start date of allocation - date of plant closure vs temporary lay-off date
• DÉRY A-7-06 Judgment Of The Federal Court Of Appeal : Monies or "dividends" received as payment for vacation and severance pay from a trustee in bankruptcy constitute earnings within the meaning of subsection 35(1) and paragraph 35(2)(a) of the EI Regulations.
• FERGUSON   Judgment Of The Federal Court Of AppealA-340-06: Monies received from the employer's income extension aid program are “earnings”.
• ROCH A-685-01 Judgment Of The Federal Court Of Appeal: Financial assistance received from Emploi-Québec as part of the Work Time Reduction and Distribution Plan constitute earnings for the purposes of EI Regulation section 35 Employment Insurance Regulations
• BOONE et al A-277-01 Judgment Of The Federal Court Of Appeal: Monies paid to union by the employer, in settlement of a grievance concerning severance allowances, and then distributed to the employees constitute earnings to be allocated.
• FOREST A-209-02 Judgment Of The Federal Court Of Appeal: Retirement allowance paid on separation is earnings to be allocated in accordance with Regulation 36(9) Employment Insurance Regulation.

Supplemental Unemployment Benefits:

• BORGHI A-184-95 Judgment Of The Federal Court Of Appeal:  Disbursement of SUB funds after closing of plan

Wage Loss Insurance plans:

• FOWLER A-302-95 Judgment Of The Federal Court Of Appeal:  Considers a Wage Loss Plan that is not a group plan.
• QUINLAN A-1206-92 Judgment Of The Federal Court Of Appeal:  Considers WLI vs salary

Vacation Pay:

• BRULOTTE et al  A-397-08 Judgment Of The Federal Court Of Appeal :Vacation pay monies paid by the trustee in bankruptcy must be allocated in accordance with subsection 36(9) of the EI Regulations.
• PREUSCHE A-678-87 Judgment Of The Federal Court Of Appeal:  Vacation pay vs vacation period
• YANNELIS A-496-94 Judgment Of The Federal Court Of Appeal:  Allocation of vacation pay - considers whether the claimant's request for payment impacts the term "payable"
• SARRAZIN A-619-05 Judgment Of The Federal Court Of Appeal, NOLET A-700-93 Judgment Of The Federal Court Of Appeal, SIMARD A-701-93 Judgment Of The Federal Court Of Appeal, BRIERE A-702-93 Judgment Of The Federal Court Of Appeal:  Vacation pay vs savings - considers whether a trustee is involved.
• BOIVIN A-67-02 Judgment Of The Federal Court Of Appeal: Vacation pay vs. salary payable per the contract.