Employment Insurance (EI)

Decision and reasons

Decision

[1] The application for leave to appeal is refused.

Overview

[2] The Applicant, M. B. (Claimant), has been receiving a Canada Pension Plan disability pension since February 1992. In 2009, she resumed working, on a part-time basis, but stopped working in December 2016 to take a medical leave of absence. She applied for and received Employment Insurance sickness benefits from December 25, 2016 to April 8, 2017. In the meantime, she turned 65 years old in February 2017. Her Canada Pension Plan disability pension was automatically converted to a retirement pension, resulting in a reduced pension. The Claimant contacted Service Canada to enquire about the reduced pension, but it did not mention that she would have to declare the retirement pension for her Employment Insurance claim.

[3] On May 12, 2017, the Respondent, the Canada Employment Insurance Commission (Commission), notified the Claimant that her pension earnings were considered earnings and that she had to declare the earnings in her reports.^{Footnote 1} This resulted in an overpayment. The Claimant sought a reconsideration of the Commission’s decision. However, the Commission maintained its earlier decision.^{Footnote 2}

[4] The Claimant appealed the Commission’s reconsideration decision to the General Division. The General Division dismissed the Claimant’s appeal, having determined that the Claimant’s retirement pension had to be deducted from her employment insurance benefits and that she had to repay benefits to which she was not entitled.

[5] The Claimant seeks leave to appeal the General Division’s decision, on the ground that the General Division failed to properly consider some of the evidence before it and that it miscalculated the date by which the overpayment started. I must now decide whether there is an arguable case that the General Division failed to properly consider the evidence before it or if it erred in determining when the overpayment started. In other words, I must determine whether the appeal has a reasonable chance of success.

[6] The application for leave to appeal is refused because I am not satisfied that the appeal has a reasonable chance of success. For the most part, the Claimant is seeking a reassessment or a rehearing on the issue of the repayment, which is not a ground of appeal under s. 58(1) of the Department of Employment and Social Development Act (DESDA).

Issues

[7] The issues before me are as follows:

Analysis

[8] Subsection 58(1) of the DESDA sets out the grounds of appeal as being limited to the following:

1. (a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. (b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. (c) The General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

[9] Before granting leave to appeal, I need to be satisfied that the reasons for appeal fall within the grounds of appeal set out under s. 58(1) of the DESDA and that the appeal has a reasonable chance of success. This is a relatively low bar. Claimants do not have to prove their case; they simply have to establish that the appeal has a reasonable chance of success based on a reviewable error. The Federal Court endorsed this approach in Joseph v. Canada (Attorney General).^{Footnote 3}

Issue 1: Was the Claimant late in filing an application requesting leave to appeal? If so, should I grant an extension of time to file this application?

[10] On May 31, 2018, the Social Security Tribunal mailed a copy of the General Division’s decision to the parties. The Claimant states in her application for leave to appeal that she received a copy of the General Division’s decision on June 9, 2018. She filed an application requesting leave to appeal on July 3, 2018— within the time limit under s. 57(1)(a) of the DESDA. Accordingly, I find that she filed her application on time.

Issue 2: Is there an arguable case that the General Division failed to properly consider the evidence before it?

[11] The Claimant submits that “the information that [she] provided […] of why [she] should not have to pay back an amount of $889.00 to [Employment Insurance] wasn’t regarded as valid information.”^{Footnote 4}

[12] The Claimant provided a detailed factual background. She noted that she has received a Canada Pension Plan disability pension since February 1992. Years later, after starting a new medication that gave her better mobility and because of financial struggles, she began working part-time. In December 2016, she took a medical leave of absence and applied for and began receiving Employment Insurance benefits. In February 2017, she turned 65 years of age and began receiving an Old Age Security pension.

[13] In March 2017, the Claimant noticed that the amount of her Canada Pension Plan pension had been reduced by close to $300.00. She contacted Service Canada and was informed that the Canada Pension Plan disability pension had been converted to a Canada Pension Plan retirement pension and that, in the process, the monthly pension had been reduced. She received confirmation of this conversion in a letter dated May 24, 2017 from the Commission.^{Footnote 5}

[14] The Claimant argues that the Commission’s letter failed to mention that the Canada Pension Plan retirement pension was considered insurable earnings for the purposes of the Employment Insurance Act and that she was required to declare them when filing an Employment Insurance claim. As such, she was unaware that she should have declared retirement pension as earnings when she filed her reports with the Commission. She suggests that the General Division overlooked the fact that she was unaware that a Canada Pension Plan retirement pension constitutes earnings and that she was required to declare this.

[15] The Claimant claims that she received a second letter from the Commission on May 19, 2017— this one dated May 12, 2017^{Footnote 6}—notifying her that she was required to repay an overpayment of Employment Insurance benefits. (More likely than not, the Claimant received the May 12, 2017 letter before she received the May 24, 2017 letter, but I do not find that anything turns on this sequence or that it changes anything.)

[16] In its letter of May 12, 2017, the Commission explained that the overpayment arose because the Claimant’s retirement pension was considered earnings which she had to declare. The Claimant argues that the Commission failed to consider her position or the financial impact the repayment would have. The Claimant argues that the process should be more transparent so that individuals know from the start that they need to declare their retirement pension for Employment Insurance purposes. In this case, she argues that Service Canada should have informed her when she contacted it in March 2017 that she was required to declare her Canada Pension Plan retirement pension.

[17] The Claimant further contends that the General Division compounded the situation by failing to recognize that there is little guidance or information provided to individuals who claim Employment Insurance. She asserts that the General Division failed to appreciate the evidence and failed to explain why she should be responsible for the overpayment. The Claimant maintains that she should not be held responsible for any overpayment and requests that it be written off.

[18] The General Division summarized the Claimant’s evidence and position. In its overview, the General Division wrote, “The Claimant disagreed with the Commission’s retroactive deduction because she was not told that the [Canada Pension Plan] retirement benefit (unlike the [Canada Pension Plan] disability benefit) was considered earnings that she had to declare.” The General Division again noted this evidence at paragraph 9, where it wrote:

The Claimant submitted however, that she was not advised by the Commission until May 13, 2017, after her employment insurance benefits had ended, that she was required to declare the [Canada Pension Plan] retirement benefit as earnings. She finds it unfair that the [Canada Pension Plan] retirement benefit was retroactively deducted from her employment insurance benefits and as a result, she must repay $889.00.

[19] The General Division addressed all of the salient details regarding the Claimant’s appeal. The Claimant has not referred me to, nor do I see any key evidence that the General Division overlooked or misconstrued.

[20] The Claimant’s primary argument against repayment is what she perceives is a lack of disclosure about any obligations expected of Employment Insurance claimants. She asserts that the General Division neglected to consider this issue, but I see that the General Division acknowledged her argument regarding this in its overview, at paragraph 9, and again at paragraph 15.

[21] However, it is no excuse that the Claimant was unaware of her obligations under the Employment Insurance Act or that she expected that, as a matter of public policy, that the Commission should have notified her of her obligations. The Commission was under no duty to inform the Claimant of either her entitlements or obligations under the Employment Insurance Act. The Claimant’s lack of familiarity with her reporting obligations was an irrelevant factor in determining whether any overpayment was owing.

[22] Furthermore, neither the General Division nor the Appeal Division has the jurisdiction to order a write-off or to consider the Commission’s refusal to write off the overpayment. As the General Division noted, the Claimant’s recourse for this lies elsewhere.

[23] Essentially, the Claimant is seeking a reassessment or a rehearing on the issue of whether she must repay the overpayment. However, s. 58(1) of the DESDA provides for only limited grounds of appeal. The subsection does not allow for a reassessment of the evidence or a rehearing of the matter.

Issue 3: Is there an arguable case that the General Division based its decision on any erroneous findings of fact without regard for the material before it, in calculating the repayment of benefits from February 26, 2017, rather than from March 1, 2017?

[24] The Claimant argues that, if she owes a repayment, the General Division incorrectly determined the dates of repayment of her Employment Insurance benefits. She claims that the Commission’s letter dated May 24, 2017,^{Footnote 7} states that her pensions were converted “effective March 2017.” She claims that March 2017 is the date that should be used for calculating any repayment. She argues that the General Division therefore erred when it determined that February 26, 2017 was the applicable date.

[25] I do not find that to be the case. At paragraph 11, the General Division found that the Claimant had to repay the benefits she received “for the partial week of February 26, 2017 ($99.00) and the subsequent 5 full weeks from March 5, 2017 to April 8, 2017 (5 x 158.00/week).” At paragraph 14, the General Division found that “the pension that the Claimant received from the Canada Pension Plan as of March 1, 2017, is considered earnings and it must be deducted from her employment insurance benefits from March 1, 2017 until the end of her claim on April 8, 2017” [my emphasis]. Contrary to the Claimant’s arguments, the General Division did not use February 26, 2017 as the applicable date to calculate the overpayment. Paragraph 14 makes it clear that the General Division determined that the repayment started “as of March 1, 2017.” I am not satisfied that there is an arguable case on this point.

[26] All in all, I find that the General Division properly identified and applied the appropriate legal test for determining whether an overpayment arose. I also find that the General Division did not overlook any errors of law, whether or not they appear on the record, or that it misconstrued any key information. Accordingly, I am not satisfied that the appeal has a reasonable chance of success.

Conclusion

[27] The application for leave to appeal is refused.