The claimant disputed her entitlement to IRBs. The insurer agreed that the claimant was entitled to pre-104 week IRBs and so the central issue in the dispute was whether the insurer could deduct Employment Insurance (EI) maternity benefits and the employer’s “”top up”” benefits from the IRB payment. Adjudicator Grant found that the insurer was able to deduct EI maternity benefits and the employer top-up benefits for any period that IRBs were payable. Adjudicator Grant relied on the decision of SW v Certas in which Vice Chair Flude considered FSCO case law on whether EI maternity benefits were deductible. Adjudicator Grant agreed with Vice Chair Flude’s analysis. Adjudicator Grant agreed with the insurer that EI maternity benefits, unlike sickness or disability benefits, fall within the definition of gross employment income as per section 4(1) and section 47(3), and that section 4(1) specifically exclude disability and sickness benefits from IRB deduction. Adjudicator Grant also noted that the claimant was obligated to apply for any available collateral benefits before relying on benefits available to her and in this case, the EI maternity and employer top-up were benefits available to her and the insurer was therefore able to deduct these amounts from the IRB.
