Employment Insurance (EI)

Reasons and decision

Persons in attendance

F. B., the claimant, took part in the hearing by teleconference.

Introduction

[1] The Appellant made two employment insurance claims beginning February 28, 1993 and February 18, 1996.^{Footnote 1} On February 11, 2015, the Canada Employment Insurance Commission (the “Commission”) informed the claimant that it could not respond to the reconsideration because it had not yet rendered a decision on the issue. On April 2, 2015, the Commission informed the claimant that it had reconsidered the claimant’s claim for benefits. It indicated that it had not changed the decision regarding the change in benefit rate following settlement of the grievance between the claimant and her employer, Canada Post, which gave rise to a wage adjustment since the request for reconsideration was filed outside the 36‑month period prescribed by the Employment Insurance Act (the “Act”). On May 21, 2015, following her request for reconsideration, the Commission indicated to the claimant that it had not changed the decision communicated on April 2, 2015 related to reconsideration of the claim.^{Footnote 2} It indicated that, under subsection 52(1) of the Act, the Commission may reconsider a claim within 36 months after the week in which the benefits in question have been paid or would have been paid. The claimant appealed that decision to the Social Security Tribunal of Canada (the “Tribunal”) on July 14, 2015.

[2] This appeal was heard by teleconference for the following reasons:

1. The complexity of the issue or issues.
2. The fact that credibility may be a determinative factor.
3. The information in the file, including the need for additional information.
4. This method of proceeding respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.

Issue

[3] What is the period available to the claimant for reconsideration of the claimant’s claims for benefits and when does that period begin?

The law

[4] Section 52 of the Employment Insurance Act (the “Act”) states:

1. 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 paid.
2. (2) 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.
3. (3) 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,
   1. a) the amount calculated is repayable under section 43; and
   2. b) 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.
4. (4) 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.
5. (5) If, in the opinion of the Commission, a false or misleading statement or representation has been made in connection with a claim, the Commission has 72 months within which to reconsider the claim.

[5] Subsection 10(14) of the Act states:

Subject to subsection (15), no extension under any of subsections (10) to (13) may result in a benefit period of more than 104 weeks.

[6] Section 113 of the Act states:

A party who is dissatisfied with a decision of the Commission made under section 112, including a decision in relation to further time to make a request, may appeal the decision to the Social Security Tribunal established under section 44 of the Department of Employment and Social Development Act.

Evidence

[7] The evidence in the file is as follows:

1. The notice of payment dated December 18, 2014 (GD3-9).
2. The information booklet on pay equity at Canada Post (GD3-60 to GD3-71).
3. Letter from the Union of Postal Communications Employees (GD2-48).

[8] The evidence adduced at the hearing through the Appellant’s testimony is as follows:

1. The claimant had two periods of employment insurance benefits corresponding to maternity leave in 1993 and 1996.
2. The pay equity case with Canada Post was before the courts for more than 30 years. The claimant left Canada Post before the decision by the courts.
3. A decision was rendered by the Supreme Court in 2011, but no money was received before December 2014. The claimant had had very little information related to the case since 2009 and, even after the Court decision, she was unable to find out the amounts that she would receive.
4. Following the Court decision, the union opened its books to correct the amounts that should have been paid based on the pay equity decision.
5. She indicated that it was not a matter of negligence on her part and no one can achieve the impossible. She could not provide the Commission with the information any earlier.

Parties’ arguments

[9] The Appellant argued as follows:

1. The claimant stated that it was absolutely impossible in the 36 months after her benefit periods to file an appeal in her case because the decision that led to a revision of her pay (pay equity) took 30 years before it was rendered by the highest courts.
2. The claimant indicated that she considers that her rights were infringed by this abnormally long delay because waiting for a decision made any request for reconsideration impossible.
3. The claimant indicated that it was not until December 18, 2014 that she found out the amounts that would be paid to her and, following that payment, she complied with the 30 day period to file her request for reconsideration. The date from which the reconsideration period should be applicable is the date on which Canada Post paid the retroactive pay equity money into her account.

[10] The Respondent argued as follows:

1. The Commission drew the attention of the Social Security Tribunal to the fact that when a claimant has not received benefits to which they were entitled or received benefits to which they were not entitled, subsection 52(1) of the Act states that the Commission may reconsider any claim related to those benefits within 36 months after the benefits have been paid or would have been paid.
2. Moreover, if the Commission believes that the claimant made a false or misleading statement or representation, regardless of whether than false statement or representation was made knowingly, the time for reconsideration is extended up to 72 months after the date on which the benefits have been paid or would have been paid.
3. In this case, there are no false statements.
4. The Commission refused to reconsider the claims starting February 28, 1993 and February 18, 1996 because the 36‑month period prescribed by the Act to proceed with reconsideration of claims had been far exceeded.
5. In this case, the Commission exercised its discretionary power and ruled that there was no reason to reconsider the claims for benefits stating February 28, 1993 and February 18, 1996 because the 36‑month period prescribed by the Act to proceed with reconsideration of those claims had been far exceeded. Furthermore, the 72‑month period had also been exceeded and the Commission pointed out that the case did not involve false or misleading statements.
6. The Commission argued that the decision is in keeping with the Employment Insurance Act and supported by the case law. Consequently, it reminded the Social Security Tribunal that it does not have jurisdiction to rule on this type of issue. Moreover, the Commission pointed out that, in an administrative review, the claimant should not be granted any right of appeal. 

Analysis

[11] The Tribunal notes that the Commission argued that the Tribunal does not have jurisdiction to decide an issue such as the Commission’s refusal to want to reconsider the claim because it was not made within 36 months and that this is a discretionary power of the Commission (GD4-1). The Commission continued by stating that it [translation] “wants to draw the attention of the Social Security Tribunal to the fact that the notice of May 21, 2015 mentions the claimant’s right to appeal, but that it was a discretionary power of the Commission to which there is no related right to appeal” (GD4-3).

[12] However, the Tribunal does not agree with that position. The Tribunal’s jurisdiction is set out in section 113 of the Act which states that a party who is dissatisfied with a decision of the Commission made under section 112, including a decision in relation to further time to make a request, may appeal the decision to the Social Security Tribunal established under section 44 of the Department of Employment and Social Development Act.

[13] In this case, the Commission rendered a reconsideration decision on May 21, 2015.

[14] The Tribunal is of the opinion that even a discretionary power of the Commission may be subject to appeal to the Tribunal if, as a result of exercising that discretionary power, a decision on reconsideration was rendered by the Commission. Indeed, depending on the circumstances, the Commission might not have exercised that discretionary power judiciously and the Tribunal could then alter the Commission’s decision.

[15] The claimant received benefits for employment insurance claims that started on February 28, 1993 and February 18, 1996. In 2011, the Supreme Court of Canada rendered a pay equity judgment. As a result of that judgment, the Employer, Canada Post, paid retroactive pay equity amounts. The statement for the eligible retroactive lump sum payment indicates that the claimant received $1,447.88 for 1993 and $916.50 for 1996 (GD3-33). The claimant received those amounts on December 18, 2014 (GD3-51). On January 14, 2015, the claimant requested reconsideration of her benefit rate for her two claims.

[16] The claimant argued that she was unable to request the reconsideration of her benefit rate before that date because the Court had not issued its ruling. Moreover, before the payment, the claimant was not able to establish the amounts that she would receive under pay equity. The claimant also indicated that, following the agreement and because she was a union representative and part of her salary had been paid by the union, her union had proceeded to make a pay adjustment and had paid her the money that she should have received based on pay equity. She wants to obtain that same adjustment for the periods in which she received employment insurance.

[17] For its part, the Commission indicated that it had exercised its discretionary power and determined that there was no reason to reconsider the benefit claims that began on February 28, 1993 and February 18, 1996 because the 36‑month period prescribed by the Act to proceed with a reconsideration of those claims had been far exceeded. Furthermore, the 72‑month period had also been exceeded and the Commission pointed out that the case did not involve false or misleading statements.

[18] Subsection 52(1) of the Act states that the Commission may reconsider a claim for benefits within 36 months after those benefits have been paid or would have been paid. That time is extended up to 72 months under subsection 52(5) of the Act if the Commission believes a false or misleading statement or representation has been made in connection with a claim; the Commission has 72 months within which to reconsider the claim.

[19] Although the Commission did not provide the exact periods in which benefits were paid, the claimant confirmed that she had received maternity benefits for her claims starting February 28, 1993 and February 18, 1996.

[20] The claimant filed a request for reconsideration on January 14, 2015, respectively 19 and 22 years after the start of her claims.

[21] Under subsection 52(1) of the Act, the time for reconsideration of a claim is 36 months after benefits have been paid or would have been paid.

[22] Given that the Commission did not provide the exact period, other than the start date of the benefits, the Tribunal considers that, extending the duration of the claim to its maximum of a total of 104 weeks (section 10(14) of the Act), the employment insurance benefits for each of the claims would have been paid respectively until February 27, 1995 and February 17, 1998. Thus, the 36‑month period for reconsideration would have been respectively until February 27, 1998 and February 17, 2001. At the time that reconsideration was requested, that period had been expired for also 17 years and almost 14 years.

[23] Furthermore, although the Tribunal notes that no false or misleading statement is at issue in the claimant’s situation, and even considering a 72‑month period, that period would also have expired because, in the best case scenario, the claimant would have had to request reconsideration of her claims before February 2001 and February 2004, which is not the case. 

[24] The Tribunal takes into consideration that the claimant considers that this time period should start as of the moment she received the pay equity money, that is, November 2014 because, until then, she did not know how much she would receive. She also indicated that her delay was the result of delays by the Court.

[25] The Tribunal is of the opinion that the Act clearly states that the 36 months must be after the benefits have been paid or would have been paid. There is no provision that allows for changing the interpretation of this section of the Act and the Tribunal does not have the authority to amend a statute. Moreover, the Commission does not have discretionary power to be able to change this period beyond the 36 or 72 months set out in the Act.

[26] In Sveinson, a claimant received a retroactive pay equity payment following a decision under the Canadian Human Rights Act. The Court determined that her claim for benefits could not be reconsidered after 36 months (Sveinson v. Canada, 2003 FCA 259).

[27] Even though the pay equity payment was not from the same source, the Tribunal is of the opinion that the situation is similar to the claimant’s and that benefit claims cannot be reconsidered after 36 months or 72 months in the case of false or misleading statements.

[28] Furthermore, section 52 of the Act is the only provision of the Act enabling the Commission to reconsider a previous decision. The result of that reconsideration is set out in subsection 52(2), which states:

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.

[29] Consequently, if section 52 of the Act does not apply, the Commission has no obligation to pay an amount as benefits. Thus, given that section 52 cannot apply because of the delay of more than 36 months, the Commission does not have the power to reconsider a decision and therefore cannot exercise its discretionary power.

[30] Accordingly, based on the evidence and submissions made by the parties, and contrary to the argument of the Commission, the Tribunal is of the opinion that the claimant had a right to appeal the Commission’s reconsideration decision under section 113 of the Act. However, the Tribunal is of the view that the claimant’s claims from 1993 and 1996 could not be reconsidered given the fact that the 36‑month period after the benefits have been paid or would have been paid under subsection 52(1) of the Act had expired.

Conclusion

[31] The appeal is dismissed.