YR v Canada Employment Insurance Commission

YR v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2024-11-08 Neutral citation 2024 SST 1540 Reference number GE-24-1857 Member Teresa Day Division General Division Decision Appeal dismissed Related decisions SST - YR v Canada Employment Insurance Commission - 2024 SST 1539 - 2024-12-13 - Appeal Division Subjects EI - Number of weeks of regular benefits Decision Content Citation: YR v Canada Employment Insurance Commission, 2024 SST 1540 Social Security Tribunal of Canada General Division – Employment Insurance Section Decision Appellant: Y. R. Representative: Unemployed Workers Help Centre Respondent: Canada Employment Insurance Commission Decision under appeal: Canada Employment Insurance Commission reconsideration decision (657492) dated April 18, 2024 (issued by Service Canada) Tribunal member: Teresa M. Day Type of hearing: Videoconference Hearing date: October 22, 2024 Hearing participants: Appellant Appellant’s representative Decision date: November 8, 2024 File number: GE-24-1857 On this page Decision Overview Issues Analysis Conclusion Decision [1] The appeal is dismissed. [2] The Respondent (Commission) is allowed to go back and review the Appellant’s claim for employment insurance (EI) benefits. It exercised its discretion properly when it decided to do so. This means I can’t interfere with its decision to do a review. [3] The Commission correctly recalculated the maximum weeks of entitlement on the Appellant’s claim. The Appellant is entitled to 21 weeks of EI benefits. Since she received 33 weeks of benefits, there is an overpayment on her claim. I can’t reduce or remove the overpayment. Overview [4] The Appellant worked for X (the employer) until she was laid off on October 25, 2022. She applied for regular EI benefits on March 14, 2023. [5] The employer hadn’t yet issued a Record of Employment (ROE) for the Appellant, so the Commission created an interim ROE based on information provided by the AppellantFootnote 1. On the interim ROE, the Appellant had 560 insurable hours from her employment at X between July 18, 2022 and October 25, 2022Footnote 2. [6] Shortly thereafter, the employer submitted the Appellant’s actual ROEFootnote 3, which reported she had 936 hours of insurable employment for this period. [7] Unfortunately, when the Commission went to calculate the Appellant’s entitlement, it considered both the interim ROE and the actual ROE from X and made its decision as if the Appellant had 1,661 insurable hours in her qualifying periodFootnote 4. Based on this error, the Commission determined the maximum number of weeks of regular EI benefits payable to the Appellant would be 33 weeksFootnote 5. [8] The Appellant was paid 33 weeks of benefits, starting from March 12, 2023. [9] In February 2024, the Commission realized its error and adjusted the Appellant’s hours of insurable employment from 1,661 hours to 1,101 hoursFootnote 6. It then recalculated the Appellant’s entitlement based on this reduced number of hours, and determined the maximum number of weeks payable on her claim was 21 weeks (instead of 33 weeks)Footnote 7. [10] This decision meant the Appellant had received 12 weeks of EI benefits she wasn’t entitled to. The Commission requested she repay an overpayment of $7,800Footnote 8. [11] The Appellant asked the Commission to reconsider its decision. She said it wasn’t fair she had to repay benefits when it was the Commission’s error that caused the overpayment. [12] The Commission maintained its decision that she was entitled to 21 weeks of benefits on her claim – not the 33 weeks she was paid. The Appellant appealed that decision to the General Division of the Social Security Tribunal (Tribunal). Issues [13] Can the Commission go back and review the Appellant’s claim? [14] If yes, did it act properly when it decided to do so? [15] How many weeks of EI benefits is the Appellant entitled to on the claim she started March 12, 2023? [16] Is the Appellant liable for the overpayment on her claim? Analysis Issue 1: Is the Commission allowed to go back and review the Appellant’s claim? [17] Yes. [18] The law allows the Commission to reconsider (review and change) a claim for EI benefits, for any reason, within 36 months after benefits have been paidFootnote 9. [19] The Commission must conduct the review and any recalculation of the claim, and notify the claimant of its decision, all within the 36-month window the law allows it to do a review for any reasonFootnote 10. [20] In this case, the EI benefits under review are the benefits paid to the Appellant for the claim she established effective March 12, 2023. [21] The Commission decided to review and recalculate the Appellant’s claim and notified her of its decision on February 21, 2024Footnote 11. This is within the 36-month window the law allows. I therefore find the Commission can go back and review the Appellant’s claim. Issue 2: Did the Commission act correctly when it decided to reconsider the Appellant’s claim? Short answer: [22] Yes. The Commission exercised its discretion properly. The law: [23] While the Commission has proven it was allowed to go back and reconsider the Appellant’s claim from March 2023, its decision to do so is discretionary. [24] This means the Commission doesn’t have to do a reviewFootnote 12, but it can choose to do so. And if it does choose to exercise its discretion to reconsider a claim, the courts have said it must exercise its discretion properly. [25] Specifically, the courts have said the Commission must exercise its discretion in a judicial manner. This means it must not act in bad faith or for an improper purpose or motive, it must not consider an irrelevant factor or ignore a relevant factor, and it must not act in a discriminatory mannerFootnote 13. [26] I can only change the Commission’s decision if I find it didn’t exercise its discretion in a judicial manner when it decided to go back and reconsider the Appellant’s claimFootnote 14. The Appellant’s submissions: [27] The Appellant’s representative argued the Commission failed to exercise its discretion judicially because it didn’t consider the following relevant factors, namely: a) That the overpayment only happened because of the Commission’s error. The Appellant didn’t do anything wrong. She didn’t try to mislead the Commission or get benefits she wasn’t entitled to. b) That the Appellant was trying not to depend on EI benefits. She found a job and worked out of province during her benefit periodFootnote 15. c) That the Appellant renewed her claim in October 2023 after relying on advice she received at her local Service Canada office that she could receive 33 weeks of EI benefits. She wouldn’t have renewed her claim if she’d known she would be asked to repay the benefits. d) That repayment of the overpayment will be a serious hardship for the AppellantFootnote 16. [28] The Appellant’s representative submitted that if the Commission had taken these relevant factors into account, it would not have reconsidered her claim. The Commission’s submissions: [29] The Commission didn’t address the exercise of its discretion in its response to the Appellant’s appealFootnote 17. So I asked it for submissions on this issue and to address the factors identified by the Appellant’s representativeFootnote 18. [30] The Commission’s response is at GD12Footnote 19. [31] It said it followed its reconsideration policy and imposed the retroactive decision (which resulted in the overpayment) because the error on the Appellant’s claim involved one of the basic elements for calculating entitlement (namely, insurable hours) and led to payment of EI benefits in way that was contrary to the structure of the EI Act. [32] The Commission also said the factors identified by the Appellant’s representative were not relevant to the exercise of its discretion. It argued that: a) It didn’t matter if the error was the Commission’s and the Appellant did nothing wrong, or if she was trying not to rely on EI benefits (factors a and b in paragraph 27 above). What mattered was that the claim was calculated using an incorrect number of insurable hours, causing the Appellant to be paid benefits in a way that was contrary to the structure of the EI Act. This meant her claim had to be recalculated. b) The Appellant’s reliance on information obtained at her local Service Canada office when she renewed her claim in October 2023 isn’t relevant because the Commission hadn’t yet identified the error. In other words, this is not a situation where the Commission knew there was a problem and failed to warn the Appellant. c) The Appellant can consult Canada Revenue Agency (CRA) about setting up a payment arrangement if she is experiencing financial hardship. My findings: [33] The legal test for the proper exercise of the Commission’s discretion isn’t whether it was fair or reasonable. The Commission only needs to prove that it exercised its discretion judicially. This means it must show it didn’t act in bad faith or for an improper purpose or motive, it didn’t consider an irrelevant factor or ignore a relevant factor, and it didn’t act in a discriminatory manner. [34] I find the Commission has proven it exercised its discretion judicially. [35] I see no evidence the Commission acted in bad faith or for an improper purpose when it decided to reconsider the Appellant’s claim. There’s nothing showing the Commission purposely misled the Appellant or intentionally failed to fulfil its obligations in administering her claim. And claimants are obligated to repay benefits they received but were not entitled toFootnote 20. So reconsidering the Appellant’s claim where it appears she might not be entitled to all the benefits she received is a proper purpose. [36] I also see no evidence the Commission ignored a relevant factor or considered an irrelevant one. [37] I agree with the Commission that the factors identified by the Appellant’s representative are not relevant to what it had to consider on February 21, 2024, when it decided to reconsider (review and change) the Appellant’s claim. [38] Neither the Appellant’s exemplary conduct, nor the Commission’s admission to making the error that caused her to be overpaid, nor her reliance on that incorrect calculation when she renewed her claim – change the fact that weeks of entitlement to EI benefits are calculated according to a strict formula set out in the EI ActFootnote 21. That formula is based, in large part, on the number of insurable hours of employment worked in the qualifying period for the claimFootnote 22. The Commission’s discovery that it used the wrong number of hours raised questions about the Appellant’s entitlement to EI benefitsFootnote 23. This is the relevant factor that prompted the Commission to go back and review her claim. [39] With respect to financial hardship, the court has said the Commission must balance factors that go to finality (being able to rely on a decision made about benefits) and factors that go accuracy (the expectation that mistakes and misrepresentations should be corrected) when it decides to reconsider a claimFootnote 24. This means the Appellant’s personal circumstances, such as stress or ability to repay, are not relevant when deciding whether to reconsider a claim under section 52 of the EI ActFootnote 25. [40] I acknowledge the Appellant relied on the incorrect calculation of 33 weeks entitlement to renew her claim in October 2023Footnote 26. But I agree with the Commission that the balance in this case must be in favour of accuracy. The number of hours of insurable employment is fundamental to the calculation of entitlement on a claim and must be corrected if it was wrong. [41] Finally, I see no evidence the Commission acted in a discriminatory manner. [42] The Commission has a policy to help guide its exercise of discretion in reconsidering a claim under section 52 of the EI ActFootnote 27 (the policy). [43] The policy provides that if the Commission incorrectly paid benefits, the error will be corrected, and no overpayment will be created unless the error resulted in a decision that is contrary to the EI Act. In this way, the policy reflects that claimants should generally be able to rely on decisions made by the Commission as being final and sets out guidelines for when a claim will be reconsidered (reviewed and changed). [44] The policy provides that a claim will only be reconsidered when: benefits have been underpaid; benefits were paid contrary to the structure of the EI Act; benefits were paid as a result of a false or misleading statement; or the claimant ought to have known there was no entitlement to the benefits received. [45] So under the policy, the Commission will only impose a retroactive decision which results in an overpayment if one of the situations described above applies. [46] The Commission says it followed its policy and reconsidered the Appellant’s claim because benefits were paid to the Appellant contrary to the structure of the EI Act. The initial decision, which was based on an incorrect number of insurable hours of earnings, impacted the number of weeks the Appellant was entitled to EI benefits. A claimant’s insurable hours is one of the basic elements required to establish a claim and pay benefits. I agree with the Commission that payment of benefits based on an error in this element is contrary to the structure of the EI Act. [47] I therefore find the Commission correctly applied the policy when it reconsidered the Appellant’s claim. And in doing so, it treated her the same way all claimants are meant to be treated. I see no evidence the Commission was biased against the Appellant or acted in a discriminatory manner. Nor is there anything to suggest the Commission treated the Appellant in a way that was prejudicial because of a personal characteristic such as race, gender, age, or sexual orientation. Conclusion on Issue 2: [48] For all these reasons, I find the Commission exercised its discretion judicially when it decided to go back and reconsider (review and change) the Appellant’s claim. [49] Since the Commission acted properly, I can’t undo or set aside the Commission’s decision to make retroactive changes to the Appellant’s claim. [50] So now I must decide whether the changes it made when it reconsidered her claim are correct. Issue 3: Weeks of entitlement to EI benefits. [51] The law sets out a specific formula for determining how many weeks of regular EI benefits a claimant is entitled toFootnote 28. [52] The calculation involves considering the following factors: a) the Regional Rate of Unemployment (RRU) in the Appellant’s area, b) the dates of the Appellant’s qualifying period, c) the hours of insurable employment the Appellant accumulated within his qualifying period, and d) the maximum weeks of entitlement according to the Table in Schedule 1 of the EI Act. [53] I will now determine how many weeks of regular EI benefits the Appellant can receive according to the law. What is the RRU in the Appellant’s area? [54] The Commission determined the Appellant was residing in the EI Economic Region of Southern Saskatchewan when she applied for EI benefits on March 14, 2023Footnote 29. This is supported by the address and postal code the Appellant gave on her application for EI benefits. [55] The Government of Canada determines the monthly RRU for each economic region. When the Appellant submitted her application for EI benefits, the RRU in her region was 6.4%Footnote 30. [56] The Appellant doesn’t dispute either of these determinations and I see no evidence that contradicts them. Therefore, I accept that the Appellant resided in the Southern Saskatchewan region and that the RRU in that region was 6.4% at the time she applied for regular EI benefits. What is the Appellant’s qualifying period? [57] The law says a claimant’s qualifying period is the shorter of: a) the 52-week period immediately before the start of the claim (benefit period), and b) the first day of an immediately preceding benefit period and ends with the day before the beginning of the new benefit periodFootnote 31. [58] The Commission made the Appellant’s claim effective as of March 12, 2023Footnote 32. There is no evidence of an immediately preceding benefit period, so I agree with the Commission’s determination that the Appellant’s qualifying period had to be the 52-week period prior to the start of her claimFootnote 33. [59] Therefore, I find that the Appellant’s qualifying period starts on March 13, 2022 and runs until March 12, 2023. She doesn’t dispute this. How many hours of insurable employment does the Appellant have in her qualifying period? [60] The ROE issued by the employer lists the Appellant’s first day worked as July 17, 2022 and her last paid day as October 31, 2022. It reports she accumulated 936 hours of insurable employment during this period. [61] These hours, added to the 165 hours from the Appellant’s other employment between May 10 – 30, 2022Footnote 34, mean the Appellant has a total of 1,101 hours of insurable employment that fall within her qualifying period for this application. [62] I asked the Appellant if she disputed the 1,101 figure. She said she did not. [63] I see no evidence to contradict the 1,101-hour total the Commission used in its calculation. Therefore, I find as fact that the Appellant has 1,101 hours of insurable employment in her qualifying period. How many weeks of regular EI benefits is the Appellant entitled to according to the Table? [64] The Table in Schedule 1 of the EI Act sets out the maximum number of weeks of benefits a claimant can receive. This table lists the entitlement weeks based on a claimant’s RRU and the number of hours of insurable employment in their qualifying periodFootnote 35. [65] The Appellant’s RRU is 6.4% and she has 1,101 hours of insurable employment in her qualifying period. The Table in Schedule 1 provides that with these variables the Appellant is entitled to a maximum of 21 weeks of EI benefitsFootnote 36. [66] The Appellant doesn’t dispute that this is what the Table says she is entitled to. [67] I therefore find that the Appellant is entitled to a maximum of 21 weeks of regular EI benefits for claim she started as of March 12, 2023. [68] This means that when the Commission recalculated the Appellant’s claim, it correctly determined she cannot be paid more than 21 weeks of EI benefits on her claim. [69] The Appellant doesn’t dispute that she received 33 weeks of EI benefits, so there is an overpayment on her claim. [70] I therefore confirm the Appellant was overpaid 12 weeks of EI benefits and has an overpayment debt of $7,800 on her claimFootnote 37. Issue 4: Is the Appellant liable for the overpayment debt? [71] Yes, she is. [72] The Commission acknowledged the overpayment was caused by its mistake and apologized for the “inconvenience” it caused the AppellantFootnote 38. Unfortunately, this doesn’t change the result for the Appellant. [73] The law says you are liable for an overpayment of EI benefits and must repay any EI benefits you received but were not entitled toFootnote 39. [74] In her Notice of Appeal, the Appellant said repaying the overpayment will be a financial hardship for her. She testified in detail at the hearing about the difficult financial circumstances she and her family are facing. [75] She also suggested the overpayment debt should be reduced because she accumulated additional hours of insurable employment between August 2023 and October 2023 that “were never used”Footnote 40. She argues that adding these hours would mitigate the amount of money she had to repay. [76] I sympathize with the situation the Appellant finds herself in because of an error by the Commission. I understand why she’s frustrated. And I acknowledge her difficult financial circumstances. But there is no discretion with respect to the calculation for weeks of entitlement – the formula must be applied strictly. And there’s no provision to consider hours outside of a qualifying period to bump up the number of weeks of entitlement on her claim. [77] I don’t have any discretion to waive, forgive, void or write-off the overpayment – no matter how compelling the Appellant’s arguments may be. The law simply doesn’t empower me to relieve anyone from liability for an overpayment, and the Court has said I cannot ignore the law, even if the outcome seems unfairFootnote 41. This means I can’t make an exception for the Appellant, no matter how difficult her personal circumstances and financial situation may be. [78] While I must dismiss her appeal of the overpayment for lack of jurisdiction, the Appellant is left with 2 options: a) She can ask the Commission to consider writing off the debt because of undue hardshipFootnote 42. At the hearing, the Appellant was unclear as to whether she’d already done this in any of her conversations with Service Canada. So I asked the Commission if it made a decision about writing off her overpaymentFootnote 43. The Commission responded that the Appellant has asked for an overpayment write-off, but the decision has not yet been made because her appeal to the was Tribunal is ongoingFootnote 44. It said her request would be reviewed and adjudicated once a decision has been made in the appeal. The Commission also said the write-off request would be reviewed and adjudicated based on sections 56(1)(e) and 56(2) of the Employment Insurance Regulations. This is very important. These sections apply when the overpayment does not arise from an error or misrepresentation made by the debtor (the Appellant) and allow the Commission to write-off an overpayment (plus any accrued interest) if the overpayment arises as a result of an error by the Commission in its processing of a claim. So in addition to her financial details, the Appellant should remind the Commission that it admits the overpayment was due its error, as this is highly relevant to the decision about writing-off the debt. Finally, if she doesn’t like the Commission’s decision on her write-off request, her recourse is not another appeal to the Tribunal. She must file a Notice of Application for judicial review with the Federal Court of CanadaFootnote 45, but there is a 30-day timeframe for appealing to the Federal Court. Or, her other option is: b) She can telephone the Debt Management Call Centre at Canada Revenue Agency (CRA)Footnote 46 at 1-866-864-5823 and ask about debt relief due to financial hardshipFootnote 47. She will need to present information about her financial circumstances for consideration. The Appellant can also use this decision to show CRA that the Tribunal has confirmed the overpayment but has no jurisdiction to write-off the debt. [79] I recommend the Appellant continue what she’s already begun with option a) above. The Commission already has her request for a write-off, has undertaken to make a decision once this appeal is finalized and, most importantly, has confirmed her request will be adjudicated based on the law that applies where the Commission has made an error. Option b) above remains open to her if option a) doesn’t work out. Conclusion [80] The Commission is allowed to go back and reconsider (review and change) the Appellant’s claim, and it exercised its discretion properly when it decided to do so. [81] The Commission correctly recalculated the maximum weeks of entitlement on the Appellant’s claim. The Appellant is entitled to 21 weeks of EI benefits. Since she received 33 weeks of benefits, there is an overpayment on her claim. [82] I don’t have jurisdiction to reduce or remove the overpayment. But I’ve included information in this decision about how the Appellant can ask for debt relief from the authorities that do. [83] The appeal is dismissed. Footnotes Footnote 1 See GD3-18. Footnote 2 The Appellant also had 165 insurable hours from other employment during her qualifying period (March 13, 2022 to March 11, 2023) to establish her claim (see GD3-16). Footnote 3 See GD3-20 and GD3-22 to GD3-24. Footnote 4 This figure includes the additional hours in footnote 2 above. Footnote 5 See the calculations at GD3-25 to GD3-29. Footnote 6 This figure includes the additional hours in footnote 2 above. Footnote 7 See the February 21, 2024 decision letter at GD3-30 and the calculation at GD3-31 to GD3-32. See also the reconsideration decision at GD3-42. Footnote 8 See the Notices of Debt at GD3-33 to GD3-35. Footnote 9 Section 52(1) of the Employment Insurance Act (EI Act). Footnote 10 See Canada (Attorney General) v LaForest, A-607-87 and Briere v Canada (Attorney General), A-637-86. Footnote 11 See the decision letter at GD3-30. Footnote 12 The sections in the EI Act that allow the Commission to go back and reconsider a claim say the Commission may review a claim – not must review a claim. Footnote 13 See Attorney General of Canada v Purcell, A-694-94. Footnote 14 See Canada (Attorney General) v Kaur, 2007 FCA 287 and Canada (Attorney General) v Tong, 2003 FCA 281. Footnote 15 The Appellant’s claim started on March 12, 2023. She testified that she collected EI benefits for a while and then found a job as a cook at a work camp out of province. She worked for a couple of months over the summer and then renewed her claim in October 2023. Footnote 16 The Appellant testified that she is currently medically unable to work and her family is struggling to make ends meet. Footnote 17 I am referring to the GD04 document. Footnote 18 See GD11. Footnote 19 The Commission’s response was shared with the Appellant and her representative, and they were given until November 5, 2024 to file any additional written submissions. As there was no response by the deadline, I proceeded with my decision. Footnote 20 See section 43 of the EI Act. Footnote 21 The formula is set out in section 12(2) of the EI Act. Footnote 22 I say this because the higher the number of insurable hours, the higher the benefit rate and number of weeks of entitlement on the claim. Footnote 23 See footnote 22 above. A lower number of insurable hours would raise questions about what the maximum number of weeks on her claim really was and whether she was entitled to the weeks she’d been paid. Footnote 24 See Molchan v Canada (Attorney General), 2024 FCA 46. Footnote 25 See Canada Employment Insurance Commission v MA, 2022 SST 1018. Footnote 26 See paragraph 27 above. Footnote 27 See the Digest of Benefit Entitlement Principles (Digest), section 17.3.3. Footnote 28 See section 12(2) of the EI Act. Footnote 29 See GD3-25. Footnote 30 See GD3-26. Footnote 31 This is set out in section 8(1) of the EI Act. Footnote 32 All claims for EI benefits start on a Sunday. The effective date of the Appellant’s claim is March 12, 2023 because that is the Sunday of the week in which she applied for EI benefits. Footnote 33 See GD3-28 and GD3-29. Footnote 34 See the ROE at GD3-16. Footnote 35 See section 12(1) of the EI Act. Footnote 36 See GD3-27. Footnote 37 The Appellant’s benefit rate was $650/week (see GD3-32), so the overpayment is 12 weeks x $650/week = $7,800. Footnote 38 See GD4-3. Footnote 39 See sections 43 and 44 of the EI Act. Footnote 40 See GD2-5. At GD4-3, the Commission explains why these hours were insufficient to start a new claim. Footnote 41 Granger v Canada (CEIC), [1989] 1 S.C.R. 141 Footnote 42 Section 56 of the Employment Insurance Regulationsgives the Commission broad powers to write off an overpayment when it would cause undue hardship for a claimant to repay it. A claimant must contact the Commission and specifically refer to section 56 of the Employment Insurance Regulations in their request for a write-off. Footnote 43 See GD11-2. Footnote 44 See GD12-2 to GD12-3. Footnote 45 It is up to the Claimant to investigate the process and take the required steps to appeal to the Federal Court. Application forms are usually available by calling the Courts Administration Service (1-613-992-4238) or by going to a local office of the Courts Administration Service. For a list of local Courts Administration Service offices, go to www.cas-satj.gc.ca and click on Registry Office. Footnote 46 CRA collects overpayment debts on behalf of the Commission. Footnote 47 The telephone number is also found on the Notice of Debt and account statements sent to the Claimant for the overpayment.