A Record of Employment (“ROE”) is an essential document used by employees to apply for Employment Insurance (“EI”) benefits. Once issued, the ROE is used by Service Canada to determine whether an individual qualifies for EI benefits, what the EI benefit amount will be, what duration it will be paid for, and to ensure the funds are not being misused or provided in error. Given the importance of the document, it is essential that employers are diligent in issuing ROEs within the appropriate timelines as well as ensuring that the document contains accurate information.

Most common ROE mistakes

Reason for issuing ROE

One area where mistakes are surprisingly common is the reasoning for issuing the ROE. The reason for issuing the ROE is important as it explains the basis for the employee’s interruption in earnings which triggers the ROE in the first place. Many employers use “Code A” – Shortage of Work / End of Contract or Season when an employee is terminated. This is incorrect as this code should only be used when an employee is laid off due to a lack of work or the end of a contract or season and not when an employee is terminated. Similarly, employers often use code “K – Other” for a terminated employee. This is also incorrect and can delay an employee from receiving EI benefits as this code typically requires Service Canada to seek clarification from the employer and employee prior to approving EI. Instead, Code “M” should be used for dismissals with or without cause.

Unnecessary comments

Employers should also be wary of providing unnecessary comments on the ROE. For instance, employers will often include comments that the employee was terminated for cause on the ROE. This is unnecessary especially when the termination for cause may be debatable and can prevent the employee from receiving EI benefits. The employee could then have grounds to use the employer’s comments on the ROE as potential bad faith conduct that prevented or delayed the employee from receiving EI benefits.

Recent decisions on incorrect issuance of ROEs

Recent decisions are illustrative of the importance of ROEs. In 2022 ONSC 5230, the court awarded significant aggravated and punitive damages as a result of the company’s untimely and incorrect issuance of the ROE. The employer should have issued the ROE within five days after the interruption of the employee’s employment but failed to do so. Instead, the employer issued two ROEs over three months after the employee’s termination date. The ROEs incorrectly described the reason for issuing the document as “shortage of work / end of contract or season.” Each ROE also incorrectly stated that the expected date of recall for the employee was “unknown,” when the employer should have selected “not returning.” The court found this was sufficient to warrant $55,000 in aggravated and punitive damages.

More recently, in 2024 ONSC 3452, the employer issued the ROE one month after the employee’s termination date. The court characterized this as being “very late” and ultimately awarded the employee $10,000 in punitive damages as a result of this conduct, among other violations.

It is clear that the courts view the failure to provide an accurate and timely ROE quite seriously. Employers should tread carefully and exercise extra diligence when completing the ROE to avoid potentially heavy aggravated and punitive damages being awarded against them.

By Nicole Simes, Simes Law