Ombudsperson Jay Chalke speaks during a news conference in Victoria, on April 6, 2017.CHAD HIPOLITO/The Canadian Press
A legal quirk is forcing some British Columbia residents to repay a provincial pandemic benefit even if they lost their jobs because of COVID-19, according to a recent report by the province’s ombudsperson.
The B.C. Emergency Benefit for Workers provided a one-time payment of $1,000 for people who qualified for Ottawa’s main COVID-19 income-support program, the Canada Emergency Response Benefit (CERB). Those who’d lost their job because of the pandemic before the federal aid became available could also access the provincial benefit.
But one group of people who should have also qualified for B.C.’s financial assistance was left out, according to a report published by the office of the province’s ombudsperson Tuesday. Some residents who lost their jobs because of COVID-19 but received regular unemployment benefits instead of CERB because of a bureaucratic wrinkle are formally ineligible for the provincial payout, the analysis found.
The issue was that they had recently received employment insurance for reasons unrelated to the pandemic and had returned to work before its onset without having fully exhausted those benefits. Then, when they lost their job because of COVID-19 and applied for CERB, Ottawa reopened their previous EI claim instead of providing the pandemic-specific support.
As a result, those workers received regular EI benefits even though CERB was already available. Thus, they weren’t legally eligible for the provincial benefit and are now being asked to repay it.
The paper calls the exclusion “unfair,” adding that it is “arbitrary and inconsistent” with the intent of the provincial emergency benefit. But while the report recommends that the B.C. government introduce a legal amendment to retroactively extend eligibility, the province’s Ministry of Finance has so far declined to do so.
“I was quite disappointed that the ministry didn’t provide a principled, practical rationale for why they were refusing our recommendation to amend the Income Tax Act,” BC Ombudsperson Jay Chalke told The Globe and Mail, speaking about the provincial tax code.
Mr. Chalke said he doesn’t know how many people are affected by the issue or how much they’re collectively being asked to repay, because the ministry has not shared that information.
The B.C. Ministry of Finance did not directly address a question by The Globe about why it hasn’t taken steps to amend the rules.
Instead, Buzz Lanthier-Rogers, a government spokesperson, said the ministry administered the benefit – and later conducted audits to verify eligibility – according to the law as it was passed by the provincial legislature. He added that the ministry does not know how many applicants may have had an earlier EI claim reinstated as a result of COVID-19.
Mr. Chalke’s investigation began after his office started receiving complaints from individuals who’d been told to repay the provincial benefit even though they’d lost their job because of the pandemic and had followed official instructions to apply for the financial assistance.
The peculiar exclusion is unjust under the province’s Ombudsperson Act because it is arbitrary and unnecessary for achieving the purpose of the legislation, according to the report.
It is also likely to have disproportionately affected Indigenous applicants, who were more likely to have recent EI claims, according to data from Statistics Canada, the analysis said.
B.C. residents who had their EI claims reactivated after taking maternity, parental or sickness leave are also among those affected, meaning the current rules are likely having an adverse impact on some provincial benefit applicants based on their sex, parental status or disability, the report said.
Mr. Chalke called the legal oddity an understandable policy flaw borne out of the necessity for lawmakers to move fast in the pandemic’s early days. The province was unaware that Ottawa was redirecting some people who qualified for federal pandemic support to regular EI claims if they had unused unemployment benefits, he noted in the report.
However, “what’s not understandable, and what this report addresses, is the refusal to fix an unfairness that came to light in the ensuing years,” he wrote.
The B.C. government has already gone back to retroactively amend the qualifying criteria for the provincial pandemic aid once before, he noted. Originally, the legislation’s wording unwittingly limited eligibility only to workers who had applied for the version of CERB reserved for self-employed people and others who didn’t usually qualify for unemployment benefits.
But with a 2021 amendment, the province extended eligibility to those who had applied for the version of CERB that was available through EI, formally known as EI-ERB.
Mr. Chalke argues that B.C. should edit the law again to include those affected by this new issue.