J. v Canada Employment Insurance Commission
<Our office successfully defended that our client’s auto insurance payments for loss of income are not earnings>
S.35(2)(d) of the Employment Insurance Regulations (EI Regulations) says that auto insurance payments for loss of income are earnings (in certain circumstances).
Section 35(2)(d) is stated to be “notwithstanding” section 35(7)(b). Where a claimant’s auto insurance payments meet the criteria of section 35(2)(d), the EI Regulations do not permit those payments to be excluded from earnings under section 35(7)(b).
The essential question is whether the payments meet the section 35(2)(d) criteria. Section 35(2)(d) states that motor vehicle accident insurance payments will be earnings in the following circumstances:
-the payments are provided under a provincial law;
-they are loss of employment earnings due to injury; and
-Employment Insurance benefits have not already been deducted from the auto insurance payments.
However, as per 5.11.4 Motor vehicle accident insurance payments, motor vehicle accident compensation payments are not considered earnings if, after the date of the accident, the claimant has accumulated enough hours of insurable employment that would allow them to establish a benefit period.
Once this condition has been met, any motor vehicle accident payments covering subsequent weeks are not earnings and therefore not deducted from EI benefits under EIR 35(3) (SOR/96-332).
