Interim Orders Impact Claw-back of Employment Insurance Benefits

The federal government recently implemented an Interim Order (retroactive to September 27, 2020, rendering any notice or severance entitlements paid after September 27, 2020 “not earnings” for the purposes of assessing entitlement to EI.

Interim Order 8 under the Employment Insurance Act reads as follows :

153.193 The following are to be excluded from the earnings referred to in section 35 of the Employment Insurance Regulations:

(a) any pay or earnings referred to in subsection36(8), (9) or (19) of those Regulations if

(i) the claimant’s benefit period begins on or after September 27, 2020, or
(ii) the pay or earnings are declared to the Commission on or after September 27, 2020 and would otherwise have been allocated under section 36 of those Regulations to a week beginning on or after September 27, 2020;

What this would seem to mean is that if a person were terminated on or after September 27, 2020 then any termination pay, severance pay or wrongful dismissal damages they receive does not affect their EI entitlement.

Thus you can now get EI and termination pay/severance etc. for the same period.  In addition, you presumably do not have to repay EI for wrongful dismissal damages received if the termination took place on or after September 27, 2020.

The impact on whether EI is then deductable from damages is up for debate.  There are some cases where CERB payments have been deemed not to be deductible from notice entitlements as mitigation for example.