Employment Insurance (EI)

Reasons and decision

Persons in attendance

[1] The Tribunal held a videoconference hearing on November 5, 2015 for the reasons stated in the hearing notice dated September 28, 2015, namely, the complexity of the issues and because this type of hearing meets the requirement under the Social Security Tribunal Regulations to conduct proceedings as informally and quickly as circumstances and the considerations of fairness and natural justice permit.

[2] The Appellant, B. M., was present at the hearing.

[3] The Commission Respondent did not attend the hearing.

[4] It was agreed that files GE-15-1543 and GE-15-1544 would be heard simultaneously.

Introduction – presentation of facts and procedures

[5] The Appellant made claims for benefit that started, respectively, on January 5, 2014 (File GE-15-1544) and December 14, 2014 (File GE-15-1543).

[6] For each claim, the benefit rate and number of weeks payable were established according to the Appellant’s economic region of residence and the regional unemployment rate, pursuant to section 14 of the Employment Insurance Act (the “Act”).

[7] In January 2015, the Appellant asked to have the calculation of her benefit rate reconsidered in keeping with the best variable weeks formula.

[8] In February 2015, the new calculations were made and the Appellant was informed of her new benefit rate for each period. These new calculations generated overpayments and underpayments.

[9] The Appellant asked not to receive or to cancel her benefit payments in certain weeks.

[10] On May 7, 2015, the Commission informed the Appellant that:

1. It cannot allow her review request since a decision following an administrative review was already given on February 18, 2015 and the additional information provided was not considered to be new facts.
2. The Commission refused to prevent the payment of benefits and stated that such a decision cannot be made under 112 of the Act. Therefore, the decision is not subject to appeal.
3. The decision concerning the request for a correction of earnings in the weeks of April 13, May 18 and August 31, 2014 was made and is not subject to administrative review under section 112 of the Act.

[11] After receiving notification of the above decisions verbally on April 30, 2015, the Appellant appealed the decisions to the Tribunal on May 4, 2015.

[12] On August 19, 2015, the Tribunal convened the parties to a preparatory conference to clarify certain issued raised by the appeals, to specify the question at issue since it seemed to differ for the Appellant and for the Commission, to ask the Commission to complete the files and provide additional explanations and in order to identify the next steps. Only the Appellant attended the preparatory meeting on September 16, 2015.

[13] On the same September 16, 2015, pursuant to section 32 of the Social Security Tribunal Regulations, the Tribunal member assigned to the appeal returned a series of questions to the Commission for investigation and production of a report.

Issue

[14] The issue is to determine whether and how the Commission could grant the Appellant’s requests concerning the calculation of her benefit rate and payment of her benefits.

The law

[15] See Appendix A for the applicable law.

Evidence

Evidence in the files

[16] In file GE-15-1544, for the benefit period starting January 5, 2014, the benefit rate was established to be $213 per week for 22 weeks of entitlement (GD3-12 and GD3-13). Following the waiting period, a reported week of non-availability, and income that the Appellant received, she began receiving benefits on February 16, 2014 (GD10-5).

[17] In file GE-15-1543, for the benefit period starting December 14, 2014, the benefit rate was established to be $196 per week for 20 weeks of entitlement (GD3-12 and GD3-13). Once the waiting period ended, the Appellant started receiving benefits on December 28, 2014 (GD10-5).

[18] On February 4, 2015, the Appellant asked for a review of her benefit rate calculation by completing the form on variable best weeks during her qualifying period (GD3-14 to GD3-16). Following this new calculation, for the benefit period starting January 5, 2014, the new benefit rate changed to $258 for the same number of weeks of entitlement, i.e., 22 weeks (GD3-21). For the benefit period commencing December 14, 2014, the new benefit rate changed to $274 (GD3-22). The Commission sent the Appellant the results of these new calculations on February 18, 2015.

[19] The Commission entered “explanations” concerning the new calculations in the files (GD3-17 and GD3-18 of file GE-15-1544; GD3-18 and GD3-19 of file GE-15- 1543).

[20] On February 18, 2015, the Appellant wrote (GD11-2) to report that, [translation] “This increase in my benefit rate from $213 to $258$ will result in small payments in certain weeks, shorten the benefit period and create an overpayment.” In this letter the Appellant asks that her earnings reports be corrected for the weeks of April 13, May 18 and August 31, 2014. In the same letter, the Appellant asks to cancel the small amounts payable for the weeks of February 2, June 1, August 3, August 24, September 21 and November 16, 2014, stating that, [translation] “These requests were made gradually, and while claim was active.” In one of the answers received on May 7, 2015, under code GD3-47, the Commission writes a post-script to the Appellant: “Request for a correction of earnings for the weeks of April 13, 2014, May 18, 2014, August 31, 2014: A decision has not been made is not subject to an administrative review under section 112 of the Employment Insurance Act.” In a letter dated August 10, 2015 (GD11- 4), the Commission corrected the earnings as the Appellant had asked.

[21] With her administrative review request filed on April 7, 2015 (GD3-24 to GD3-43), the Appellant attached a decision dated March 23, 2015 in which the Commission states that it had reconsidered the claim for benefit but the benefits paid from January 11 to January 17, 2015 could not be cancelled, nor could the benefits paid from January 25 to 31, 2015 and from February 8 to 14, 2015.

[22] In her notice of appeal to the Tribunal, the Appellant attached a decision dated March 25, 2015 (GD2-12) in which the Commission states that it had reconsidered the claim for benefits but that the benefits paid on February 2 and 8, 2014 could not be cancelled, nor could benefits paid for the weeks of June 1, August 3, August 24, September 21 and November 16, 2014.

[23] In these two decisions on March 23 and 25, 2015, the Commission wrote: [translation] “The Employment Insurance benefits that you claimed and received for these weeks had to be paid to you in accordance with the Act, your eligibility to these benefits had been established and there are no circumstances or conditions that would allow us to cancel them.”

[24] On May 7, 2015, the Commission gave three (3) decisions (GD3-44 à GD3-47) whereby:

1. The Commission wrote concerning the Appellant’s reconsideration request received on April 7, 2015 that it cannot grant the request because an administrative review had already been held on this matter on February 18, 2015 (GD3-44 of GE-15-1544 and GD3-46 of GE-15-1543) and referred the Appellant to the Tribunal.
2. The second decision (GD3-45) concerns the reconsideration request received on April 7, 2015, of the decision given on March 23, 2015. Concerning the dispute: Refusal to stop the payment of benefits, the Commission indicates in a post-script that the decision is not possible under section 112 of the Act, and there is no right of appeal.
3. The third decision (GD3-47) states in a post-script that the decision concerning the requests for a correction of earnings for the weeks of April 13, May 18 and August 31, 2014 has not been made and cannot be the focus of an administrative review pursuant to section 112 of the Act.

[25] Following new calculations, the Commission informed the Appellant in a notice dated May 19, 2015 (GD3-23) that, [translation] “A change in the start date of your claim for benefit has generated an overpayment” of $1, 211.

[26] The Commission entered an “explanation” of the $1,211 overpayment in file GE-15-1544 (GD3-22) mentioning that the new benefit rate calculation had enabled the Appellant to receive a payments for certain weeks that had not been paid before, that she had received 28 weeks of benefit but was entitled to 22 weeks, and that the Commission had to cut back the six (6) weeks following September 14, 2014, i.e., after the 22nd week paid, which generated the overpayment.

[27] In file GE-15-1543, the Commission entered an “explanation” on file (GD3-23) because the outcome of the new benefit rate calculation had generated an underpayment of $835, indicated that this amount was used to repay the overpayment of the previous claim for benefit (GD-15-1544) and said that a balance of $376 remained to be reimbursed.

Evidence at the hearing

[28] The Appellant's testimony contributed the following information at the hearing.

[29] The Appellant said that she is not appealing the calculation of her benefit rate and said that following these new calculations, she realized that she would be receiving very small payments for six (6) weeks because the Commission had refused to cancel the payments and she is appealing to the Tribunal on this issue.

[30] When the Commission told her that she had not brought any new facts that would allow it to reconsider her claims (GD3-44), the Appellant said that the new rate calculation was a new fact and that, based on the date of the new calculation, she was within the deadline to have the Commission perform a review.

[31] The Appellant said that in the past, if she expected a small benefit amount in a given week, she would often call in to decline the amount, or would tell the officer that she was not available, which would prevent the payment. A telephone call at the time was the same as the electronic report she is required to use now, and involved a manual operation performed by an agent of the Commission. All of this ultimately extended her benefit period over a longer time. The Appellant was unable to cite the statutory provision on which this method was based, but she thinks it may come under the Commission’s discretionary authority.

[32] The Appellant said she had worked for 37 years as a Level 2 officer for the Commission. For the Appellant, when the Commission has discretionary authority, it is meant to exercise such authority with good judgement, not to constantly refuse requests.

Arguments

[33] The Appellant argued as follows:

1. The original calculation of her benefit rate was performed incorrectly due to improper entries in the automated calculation system (Tribunal note: see GD3-19). If her rate had been calculated correctly at the outset, she would have telephoned progressively as her benefit weeks passed to ask not to receive certain weeks of benefits, and these requests would not have been refused. Now, she has been told that her small weekly payments cannot be cancelled because of section 47(2).
2. She was informed a number of times by Commission employees that she was entitled to decline payments of small benefit amounts within a 30-day time period, which is what she did without delay after receiving information that the new calculation of her benefit rate had generated an overpayment.
3. It does encourage claimants to work more while receiving benefits when they receive a small amount that lowers their number of weeks, which is low to start with. If the small amount paid were deducted from the total amount of benefits granted, it would be much more acceptable and encouraging.

[34] The Commission Respondent argued that (GD4):

1. The sole dispute concerns the benefit rate based on variable best weeks.
2. In some circumstances, a claimant may ask not to receive reduced benefits for several weeks. When the weeks in question have already been processed, the deadline for submitting the request for continuing benefits provided in section 26 of the Regulations applies. This means that the claimant has three (3) weeks after submitting a report for it to be processed.
3. When a request to refuse payment is made more than three (3) weeks after the claimant files a report, the request must be processed pursuant to section 52 of the Act. The new review will be accepted only if the eligibility or validity of the payment is in doubt.
4. When reconsideration of a request is refused under section 52, the Act gives the Commission discretionary authority to decide to reconsider. A refusal to reconsider the request under section 52 of the Act does not create a right to appeal.
5. The decision is not subject to section 112 of the Act and section 47(2) of the Act allows the Commission to recover overpayments; it also takes priority over the client’s request not to be paid for one or several weeks that would otherwise be payable.
6. The new calculations of claims for benefit were based on the unemployment rate of the Appellant’s region of residence, which was 10.1% for the X. The number of best weeks required to calculate the benefit rate was 17 based on section 14(2) of the Act.

Additional arguments by the Commission following the Tribunal’s questions (GD10)

[35] The Tribunal asked the Commission why none of its representative had attended the preparatory meeting to answer questions of direct concern to the Commission. The Commission admitted that an “administrative error” had occurred when processing the preparatory meeting notice and it apologized.

[36] The Tribunal asked why the decisions of March 23 and 25, 2015, had not been entered in the files. The Commission admitted that it should have included the decision from March 25, 2015 in the review file.

[37] The Tribunal asked why the Commission contends that the only issue concerns the benefit rate when it stated in its initial argument that the Appellant was appealing the refusal to cancel certain weeks of benefits. The Commission answered that it had exclusive authority to reconsider, retroactively, any claim for benefit in order to determine whether the Appellant was lawfully entitled to receive benefits, that the Commission gave a decision on the refusal of small payments based on the specific criteria for this type of request (emphasis added) and that there is no right to appeal refusal of payment decisions.

[38] Following new calculations, the Appellant’s increased benefit rate meant that weeks formerly not paid became payable, although the amounts were small considering the gross earnings she reported. A chart shows the weeks that were not payable at the $213 rage but became payable at the new rate. The number of weeks of entitlement had been reached early in the claim for benefit, which caused the overpayment.

[39] The Commission underscored that an error was made in the files with respect to the denominator applied (emphasis added) to the calculation since the unemployment rate was different for each of the claims for benefit in question.

[40] The Tribunal asked the how the Commission could state that there is no right of appeal because the matter involves discretionary power whereas in the decision of May 7, 2015, it told the Appellant that she could appeal to the Tribunal. The Commission answered that the letter of May 7, 2015 was a mistake, that the officer should have used a different form letter, and underscored that the notice stated that no appeal was possible. (Tribunal note: nothing could be more contradictory).

[41] The Tribunal asked to know which statutory provisions the Commission had used to support its assertion that a claimant could ask not to receive reduced benefits for one or several weeks in certain circumstances. The Commission said it was section 52 of the Act, which authorizes it to reconsider any claim, and not the obligation to reconsider a claim retroactively. A reconsideration refusal is not subject to appeal.

Analysis

[42] Given that the events in the Appellant’s cases are identical, one decision will apply mutatis mutandis to all.

[43] First of all, the Tribunal notes that the Appellant entered documents that the Commission had omitted to present, which did not make events the easier to understand. The Tribunal also noted that some of the dates given by the Commission for decisions made did not match the decisions shown on documents produced by the Appellant.

[44] While the Commission informed the Appellant on May 19, 2015 (GD3-23) that a change in the date at the start of her claim for benefit had caused the overpayment, on studying the files, the Tribunal sees that this was not the case, and that the Commission did nothing to provide the relevant information. The Commission had the opportunity to do so when the Tribunal asked for additional information, yet it simply said that the information in the files was clear. However, there is no longer any doubt that the information initially provided by the Commission was obviously not clear. The Commission is therefore reminded that if the Tribunal member required to decide the dispute is forced to request explanations, considering that such member has a certain amount of expertise in applying the Act, the reason is disjointed information.

[45] The answers received by the Tribunal in the Commission’s additional arguments and underscoring certain errors clearly show a lack of clarity at the least.

[46] The Appellant clearly specified that she was not challenging the calculation of her benefit rate for the periods at issue. What she is challenging is the payment of benefits created for certain weeks by the increase in her rate. For example, in one week, when her rate was $213, when she received income in this week from work, which prevented her from receiving benefits; the increase in this rate to $253 meant that her reported income from employment sometimes left her with a tiny amount of benefits. The Tribunal refers to the chart completed by the Commission after the Tribunal was asked for explanations (GD10-5 to GD10-7).

[47] While the Commission refuses to intervene in cases once an appeal is filed with the Tribunal, the correction of earnings from employment that the Appellant had requested for certain weeks was made on August 10, 2015. The appeal before the Tribunal was filed on May 4, 2015. This distorted the chart submitted by the Commission in September 2015 (GD10) and also distorted the amount of the overpayment determined for the benefit period commencing on January 5, 2014.

[48] When discretionary authority is explicitly assigned to the Commission by the Act and when the Tribunal sees that such discretionary authority was not properly exercised, the jurisprudence allows the Tribunal to intervene. In this case, however, the issue concerns administrative activities performed by the Commission at the request of claimants, which practically enables it to circumvent what the Act determines. The Tribunal understands that the Commission was loathe to expose this approach.

[49] The Commission contended that when the refusal of payment request was made more than three (3) weeks after the claimant’s report had been processed, the request had to be addressed under section 52 of the Act.

[50] According to this section 52 of the Act, a request for reconsideration is accepted only if payment eligibility or validity is in doubt. In this case, the claimant’s eligibility to receive payment was beyond doubt, since it was solely the Appellant’s wish not to receive a week of benefits that would have prevented such payment. If the Appellant was eligible to receive the payment, the validity of the payment is also assured. Reconsideration under section 52 of the Act, as the Commission argues, is not applicable.

[51] The purpose of the Tribunal is to examine the facts and analyze the evidence submitted in order to apply the Employment Insurance Act. Nothing in this presentation, in the current files, directly concerns statutory provisions that the Tribunal is responsible for upholding.

Conclusion

[52] The appeals are dismissed.

Appendix A

Applicable law

[1] The following sections of the Employment Insurance Act concern eligibility for benefits, the payment of benefits, the number weeks and benefit rates payable, the deductions to make from payable benefits, the possible review of a claim for benefit and reconsideration of a decision by the.

[2] Section 7 (1) Unemployment benefits are payable as provided in this Part to an insured person who qualifies to receive them.

[3] Section 9 When an insured person who qualifies under section 7 or 7.1 makes an initial claim for benefits, a benefit period shall be established and, once it is established, benefits are payable to the person in accordance with this Part for each week of unemployment that falls in the benefit period.

[3] Section 12 (1) If a benefit period has been established for a claimant, benefits may be paid to the claimant for each week of unemployment that falls in the benefit period, subject to the maximums established by this section. Subject to subsections (2.1) to (2.6), the maximum number of weeks for which benefits may be paid in a benefit period because of a reason other than those mentioned in subsection (3) shall be determined in accordance with the table in Schedule I by reference to the regional rate of unemployment that applies to the claimant and the number of hours of insurable employment of the claimant in their qualifying period.

[4] Section 14 (1) The rate of weekly benefits payable to a claimant is 55% of their weekly insurable earnings.

(1.1) The maximum weekly insurable earnings is

1. (a) $750 if the claimant’s benefit period begins during the years 1997 to 2000; and
2. (b) if the claimant’s benefit period begins in a subsequent year, the maximum yearly insurable earnings divided by 52.

(2) A claimant’s weekly insurable earnings are their insurable earnings in the calculation period divided by the number of weeks determined in accordance with the following table by reference to the applicable regional rate of unemployment.

[5] Section 19  (2) Subject to subsections (3) and (4), if the claimant has earnings during any other week of unemployment, there shall be deducted from benefits payable in that week the amount, if any, of the earnings that exceeds (a) $50, if the claimant’s rate of weekly benefits is less than $200; or (b) 25% of the claimant’s rate of weekly benefits, if that rate is $200 or more.

[6] Section 20  (2) If a claimant is disentitled from receiving benefits for a working day in a week of unemployment that is not in their waiting period, an amount equal to 1/5 of their weekly rate of benefits for each such working day shall be deducted from the benefits payable for that week.

[7] Section 52 (1) Despite section 111, but subject to subsection (5), the Commission may reconsider a claim for benefits within 36 months after the benefits have been paid or would have been payable.

If the Commission decides that a person has received money by way of benefits for which the person was not qualified or to which the person was not entitled, or has not received money for which the person was qualified and to which the person was entitled, the Commission must calculate the amount of the money and notify the claimant of its decision.

If the Commission decides that a person has received money by way of benefits for which the person was not qualified or to which the person was not entitled, the amount calculated is repayable under section 43; and
The day that the Commission notifies the person of the amount is, for the purposes of subsection 47(3), the day on which the liability arises.

If the Commission decides that a person was qualified and entitled to receive money by way of benefits, and the money was not paid, the amount calculated is payable to the claimant.