CC v Canada Employment Insurance Commission

CC v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2024-05-08 Neutral citation 2024 SST 878 Reference number GE-24-1108 Member Elyse Rosen Division General Division Decision Appeal dismissed Related decisions SST - CC v Canada Employment Insurance Commission - 2024 SST 877 - 2024-07-26 - Appeal Division Subjects EI - Qualifying for benefits - Hours of Insurable Employment Jurisdiction Decision Content Citation: CC v Canada Employment Insurance Commission, 2024 SST 878 Social Security Tribunal of Canada General Division – Employment Insurance Section Decision Appellant: C. C. Respondent: Canada Employment Insurance Commission Decision under appeal: Canada Employment Insurance Commission reconsideration decision (641857) dated February 7, 2024 (issued by Service Canada) Tribunal member: Elyse Rosen Type of hearing: Videoconference Hearing date: May 7, 2024 Hearing participant: none Decision date: May 8, 2024 File number: GE-24-1108 On this page Decision Overview Matter I have to consider first Issues Analysis Conclusion Decision [1] The appeal is dismissed. [2] The Appellant hasn’t contested that she doesn’t have enough hoursFootnote 1 to qualify for benefits. This isn’t what she had asked the Canada Employment Insurance Commission (Commission) to reconsider, and it isn’t the issue in appeal. [3] The Commission hasn’t provided any information about what facts it relied on when it decided to use its discretionary power to reconsider the Appellant’s claim. From the record, I’m unable to satisfy myself that it considered all the relevant facts before doing so. I therefore find that it didn’t act judicially (as that term is described, below) when it reconsidered the Appellant’s claim. [4] However, I find that the Appellant’s claim must be reconsidered. [5] This means the overpayment stands. Overview [6] The Appellant lost her job and applied for EI benefits. [7] The Appellant’s employer filed two records of employment (ROEs) for the same employment period. The Commission didn’t realize this. It considered both ROEs when it decided that the Appellant qualified for benefits. As a result of considering both ROEs, it concluded that the Appellant had twice the number of hours she actually had. [8] When the Commission realized its mistake, it reconsidered the Appellant’s claim. It advised the Appellant that she didn’t have enough hours to establish a claim. This created an overpayment, which the Appellant has been called upon to repay. [9] The Appellant asked the Commission to reconsider its decision. She said the overpayment resulted from the Commission’s error and that she shouldn’t have to repay it. She didn’t argue that she had enough hours to qualify for benefits or that the Commission’s decision that she didn’t qualify was wrong. [10] The Commission failed to consider the Appellant’s argument that the overpayment wasn’t her fault. It simply maintained its decision that she didn’t have enough hours to qualify for benefits. [11] In appeal, the Appellant continues to argue that the overpayment results from the Commission’s error and that it isn’t her fault. She says the Commission’s decision is unfair and is having a negative impact on her health. She claims she’s unable to repay the debt and asks that it be reversed. Matter I have to consider first The Appellant wasn’t at the hearing [12] The Appellant didn’t attend the hearing. [13] A hearing can go ahead without the Appellant if the Appellant got the notice of hearing.Footnote 2 [14] I find that the Appellant got the notice of hearing. It was sent to her on April 19, 2024, at the email address she gave the Tribunal. She received a reminder call on April 29, 2024, and was left a detailed message with the hearing details. She was sent another hearing reminder by email, with all of the hearing details, on May 6, 2024. [15] The Tribunal attempted to contact her by telephone at the time scheduled for the hearing. The call went to voicemail. The Appellant didn’t call the Tribunal back to explain her absence. [16] So, the hearing took place when it was scheduled, but without the Appellant. Issues [17] Although the Commission has framed this appeal as being about whether the Appellant has enough hours to qualify for benefits, it isn’t. The Appellant hasn’t disputed that she doesn’t have enough hours to qualify for benefits. [18] The issues in appeal are: What does the Tribunal have the jurisdiction to decide in this appeal? Did the Commission act judicially when it reconsidered the Appellant’s claim? If it didn’t, should the claim be reconsidered? Analysis What does the Tribunal have the jurisdiction to decide? [19] The Tribunal’s authority to decide an appeal comes from the Employment Insurance Act (Act). The Act says the Tribunal can only hear appeals from reconsideration decisions.Footnote 3 [20] The Commission’s reconsideration decision is about whether the Appellant had enough hours to qualify for benefits. But that isn’t what the Appellant was asking it to reconsider. She was contesting the fairness of the Commission’s decision to revisit her claim and create an overpayment when that overpayment resulted from the Commission’s own error and from no fault of her own. In other words, without saying so in so many words, she was claiming that the Commission didn’t act judicially when it reconsidered her claim.Footnote 4 [21] The Commission didn’t address that argument in its reconsideration decision. It doesn’t say whether or not it believes it acted judicially when it revisited the Appellant’s claim and created an overpayment. And it has provided no information about what facts it took into consideration when it chose to use its discretionary power to reconsider the Appellant’s claim. [22] In appeal, the Appellant continues to claim that she shouldn’t have to repay the overpayment because it results from the Commission’s error. She isn’t arguing that she qualifies for benefits. She’s just saying that she shouldn’t have to pay for the Commission’s mistake. [23] I find that it’s within my jurisdiction to consider whether the Commission acted judicially when it reconsidered the Appellant’s claim on its own initiative and created an overpayment. [24] The Appeal Division of the Tribunal (AD) has held that the Tribunal should take a broad view of its jurisdiction (in other words, what it has the authority to make decisions about) in order to manage appeals fairly.Footnote 5 I agree with that principle, even though I’m not bound by the AD’s decisions. [25] Keeping that principle in mind, I find that my jurisdiction extends to anything that was before the Commission on reconsideration, regardless of whether or not the Commission explicitly addressed it in its reconsideration decision. In my view, failing to decide an issue put before it is nonetheless a decision. [26] I find that by not addressing the Appellant’s contention that it didn’t act judicially, the Commission implicitly decided that it did. And I can review that decision in appeal. [27] So, I’m going to look at whether the Commission acted judicially when it reconsidered the Appellant’s claim. That’s what the Appellant had asked the Commission to do, and it’s what she’s asking me to do in her appeal. [28] I didn’t give the Commission an opportunity to provide submissions on that issue before proceeding with my decision. This is because I don’t see it as a new issue. [29] In my view, whenever the Commission reconsiders a claim on its own initiative (in other words, decides to revisit its own decision)Footnote 6 and the Appellant asks it to reconsider (in other words, review a decision it thinks is wrong), and then appeals that decision, the Commission should address the following points in its submissions to the Tribunal: It should confirm that the decision giving rise to the appeal was made under its power to reconsider the claim on its own initiative It should demonstrate that it acted within the delay set out in the law to do so It should demonstrate that it acted judicially when it exercised its discretion to reconsider the claim [30] Because the Commission’s power to reconsider its own decisionFootnote 7 is discretionary, whether the Commission exercised its discretion judicially is an inherent element of any reconsideration decision,Footnote 8 where the underlying decision results from the exercise of that power. [31] Just as it does when it issues a penalty or refuses a late reconsideration request,Footnote 9 whenever the Commission exercises its discretionary power to reconsider, it should substantiate that it exercised its discretion appropriately. [32] In my view, the rules of natural justice and procedural fairness don’t require me to invite the Commission to provide submissions on the issue of whether it acted judicially.Footnote 10 That issue is an intrinsic element of its reconsideration decision, and it was specifically raised by the Appellant both in her reconsideration request and in her appeal. [33] As I see it, it could have, and should have done so when it provided its initial submissions. [34] Moreover, because the Commission elects not to attend hearings of the Tribunal in most cases, it’s essential that its submissions be complete. [35] Requiring additional submissions from the Commission on issues it should have addressed in its original submissions creates additional (and unnecessary) delays. This is unjust to the Appellant and isn’t in keeping with the Tribunal’s commitment to make the appeal process simple, quick, and fair. [36] So, when the Commission decides not to provide submissions prior to the hearing on whether it acted judicially when exercising its reconsideration power in cases where that power has been exercised, it does so at its own peril. It should take for granted that it won’t be given a further opportunity to do so and should act accordingly. Did the Commission act judicially? [37] I find that the Commission didn’t act judicially when it reconsidered the Appellant’s claim. [38] The law allows the Commission to reconsider a claim for benefits on its own initiative.Footnote 11 It has the discretion to decide whether or not it should do so. In other words, it has the freedom to apply its own judgement as to whether or not it would be appropriate to revisit the claim even though it’s empowered to do so. [39] When the Commission does decide to reconsider a claim on its own initiative, the Tribunal must be respectful of the Commission’s discretion. [40] However, when the Commission makes a discretionary decision, it must act judicially.Footnote 12 This means it has to act in good faith and in a consistent and fair manner. It must consider all of the relevant facts, but only the relevant facts, to arrive at its decision. If it doesn’t, then the Tribunal can substitute its own decision for the decision the Commission made. [41] When the Commission decides to use its power to reconsider a claim (in particular, when its decision to do so results in an overpayment), it must contemplate whether, in the particular circumstances of the case, correcting a mistake where benefits were overpaid is justified in light of the claimant’s right to finality of the decision.Footnote 13 [42] In other words, claimants should be able to rely on decisions made about their benefits, and mistakes should only be corrected retroactively when it’s fair and reasonable to do so in the circumstances. [43] Therefore, when the Commission decides whether it should use its power to reconsider a claim, any facts that would help to resolve the tension between accuracy and finality are relevant to their decision. And if the Commission fails to consider such facts when it decides to reconsider a claim, it may be found to have not acted judicially. [44] The Commission has a policy about when it will exercise its discretion to reconsider a claim (the reconsideration policy).Footnote 14 [45] The reconsideration policy was developed to ensure a consistent and fair application of the law regarding discretionary reconsideration decisions, and to prevent creating debt when a claimant is overpaid benefits through no fault of their own. [46] The reconsideration policy says that the Commission will only use this power when: benefits have been underpaid benefits were paid contrary to the structure of the EI ActFootnote 15 benefits were paid as a result of a false or misleading statement the claimant ought to have known there was no entitlement to the benefits received [47] The reconsideration policy also says that the Commission won’t create an overpayment when the overpayment results from a Commission error.Footnote 16 [48] The AD says that the factors set out in the reconsideration policy are relevant facts the Commission must contemplate when it decides whether to use its power to reconsider.Footnote 17 It says that although the Commission isn’t bound by its policy, if it decides not to apply it, it must nonetheless explain why. I agree with the AD’s reasoning. [49] In this case the Commission hasn’t shown that it even turned its mind to the facts that would help it to resolve the tension between accuracy and finality. All it looked at is whether the overpayment could be written off once it had been established.Footnote 18 I see no evidence that it contemplated whether the overpayment should have been created in the first place. [50] In the absence of any evidence that the Commission considered whether it should reconsider the Appellant’s claim, I find that it didn’t act judicially. [51] Because I have found that the Commission didn’t act judicially, I can make the decision that it should have made in its place. Should the Appellant’s claim have been reconsidered? [52] I find that it’s necessary and appropriate to reconsider the Appellant’s claim given the facts of this case. This is a rare situation where accuracy must trump finality even though the Commission, and not the Appellant, is to blame for the overpayment. [53] Although I’m not bound by the Commission’s reconsideration policy, I do find it helpful in resolving the tension between accuracy and finality. [54] The Appellant argues that the overpayment results from the Commission’s own error. The Commission claims the error was that of the Appellant’s employer. But in my view, the Commission should have picked up on the error. It should have realized that the two ROEs issued by the Appellant’s employer were for the same period. So, I agree with the Appellant. I find that the overpayment results from the Commission’s error. [55] I also find that the Appellant isn’t in any way at fault. I have no evidence that she made any false or misleading statements or that she was aware she wasn’t entitled to the benefits she received. There is some evidence that the Appellant may have filed two separate applications for benefits.Footnote 19 But the second application is not part of the record. I’m unable to find, given the lack of evidence, that the Appellant may have contributed in some way to the Commission’s error. [56] Normally, this would lead me to conclude that the Appellant’s claim shouldn’t be revisited after benefits were paid to her, if doing so would create an overpayment. [57] However, the Appellant never qualified for the benefits she received. Having enough hours to qualify is a fundamental requirement of the EI system. It relates to the structure of the Act, as that term is used by the Commission in its reconsideration policy. [58] It’s one thing to forego accuracy when a claimant meets the basic conditions to set up a claim but can’t meet the ongoing conditions to receive benefits under that claim. It’s quite another to forego accuracy when the claimant isn’t able to establish a claim in the first place. [59] In this case the Appellant has insufficient hours to set up a claim. She doesn’t dispute this. [60] Allowing her to keep the benefits she received in this case would be akin to paying her insurance proceeds when she didn’t pay the full premium for the policy. If this were allowed on a systematic basis, the entire EI system would collapse. [61] The EI program is funded through the premia deducted as a function of a claimant’s insurable hours.Footnote 20 This is why the law says you don’t qualify for benefits unless you have accumulated sufficient hours. [62] Since the Appellant didn’t accumulate enough hours to qualify for benefits, this means she didn’t pay her required premium. She can’t be allowed to keep the benefits she received in these circumstances. [63] I find that the facts in this case require that the Appellant’s claim be reconsidered. [64] This means the overpayment will stand. [65] I recognize that this is harsh. But I must apply the law.Footnote 21 [66] The Appellant says she’s unable to repay the debt created by the overpayment. That issue is unfortunately beyond my jurisdiction. [67] The Commission says it considered writing off the Appellant’s debt and decided she didn’t meet the conditions set out in the law for it to do so. The law says I don’t have the power to review that decision.Footnote 22 Only the Federal Court of Canada has that power. [68] If repaying the debt would cause the Appellant undue hardship, she can contact the Canada Revenue Agency (CRA) at 1-866-864-5823 and request a write-off for that reason. She can also ask the CRA for repayment terms if that would make it easier for her to repay the debt. Conclusion [69] The appeal is dismissed. [70] The Commission didn’t act judicially when it reconsidered the Appellant’s claim. I’m of the view that it didn’t consider all of the relevant facts. [71] But I find that the claim should be reconsidered. This is a case where accuracy must prevail over finality. This means the overpayment will stand. Footnotes Footnote 1 When I use the term hours in this decision, I’m referring to the insurable hours required to qualify for benefits under section 7 of the Employment Insurance Act (Act). Footnote 2 Section 58 of the Social Security Tribunal Rules of Procedures sets out this rule. Footnote 3 See section 113 of the Act. Footnote 4 I will explain when the Commission may reconsider a claim on its own initiative, below. Footnote 5 MS v Canada Employment Insurance Commission, 2022 SST 933. Footnote 6 The Act uses the term reconsider both when the Commission revisits a decision it made on its own initiative under section 52 of the Act, and when a claimant asks it to review a decision it made under section 112 of the Act. I acknowledge that this can be confusing. Footnote 7 I’m referring to the reconsideration power under section 52 of the Act. Footnote 8 I’m referring to a decision made under section 112 of the Act, after a claimant has made a reconsideration request. Footnote 9 These are also discretionary decisions. Footnote 10 Although I’m aware that the Tribunal’s Appeal Division decided otherwise in Canada Employment Insurance commission v Y.G., AD-23-663 (unreported), I don’t agree that the determination of whether the Commission acted judicially when it exercised its power to reconsider a claim cannot reasonably be said to stem from the same grounds as an appeal of a reconsideration decision where the underlying decision resulted from the Commission’s exercise of that power (R v Mian, 2014 SCC 54). And I’m not bound by the Appeal division’s decision. Furthermore, in R v G.F., 2021 SCC 20, the Supreme Court clarified that Mian gives an appellate body the discretion to determine if additional submissions are warranted when it raises a “new” issue that is rooted in the issues already raised by the parties (see paragraph 93 of the decision). And in all events, as the Supreme Court points out in Attorney General of Canada v Mavi, 2011 SCC 30, procedural fairness isn’t a one size fits all concept. Rather, it depends on a party’s legitimate expectations (see paragraph 42 of the decision). The Commission can’t reasonably expect that it will be given a second chance to address issues that it should have addressed in its original submissions. The Commission is an expert on the application of EI law. It knows, or should know, what issues are raised by an appeal and what issues it should provide submissions on. Footnote 11 See section 52 of the Act. Footnote 12 See Canada (Attorney General) v Purcell, 1995 CanLII 3558 (FCA). Footnote 13 See MS v Canada Employment Insurance Commission, 2022 SST 933 and Canada Employment Insurance Commission v MA, 2022 SST 1018. I’m not bound by these decisions, but I find them helpful in this case. Footnote 14 See the Digest of Benefit Entitlement Principles (Digest), at section 17.3.3. Footnote 15 Structure of the act is defined as the basic elements to set up a claim and pay benefits. This would include having enough hours to establish a claim. Footnote 16 Except when the decision that caused the overpayment relates to the structure of the Act. Footnote 17 See MS v Canada Employment Insurance Commission, 2022 SST 933. Although I am not bound by that decision, I find it helpful in this case. I agree that the policy is a relevant fact that the Commission should consider when it decides to reconsider a claim on its own initiative. Footnote 18 GD4-1. Footnote 19 This appears from a call log. Footnote 20 See sections 66 and 67 of the Act. Footnote 21 Canada (Attorney General) v Knee, 2011 FCA 301. Footnote 22 See section 112.1 of the Act.