Employment Insurance (EI)

Decision and reasons

Decision

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

Overview

[2] The Applicant, A. O. (Claimant), did not inform the Respondent, the Canada Employment Insurance Commission (Commission), when she returned to work from maternity leave. When the Commission discovered that she had been working and collecting benefits at the same time, it allocated her earnings to the periods in which she performed services. This resulted in an overpayment. The Commission also imposed a penalty as a result of the Claimant having knowingly made a false statement. When the Claimant requested a reconsideration, the Commission removed the penalty but still required her to repay the overpayment. The Claimant appealed to the General Division of the Social Security Tribunal, where her appeal was dismissed. She now appeals to the Appeal Division.

[3] There is no reasonable chance of success on appeal. The Claimant has not made out an arguable case that the General Division failed to observe a principle of natural justice or erred in jurisdiction.

Issue

[4] Is there an arguable case that the General Division failed to observe a principle of natural justice or erred in jurisdiction?

Analysis

[5] The Appeal Division may intervene in a decision of the General Division only if it can find that the General Division has made one of the types of errors described by the “grounds of appeal” in section 58(1) of the Department of Employment and Social Development Act (DESD Act).

[6] To grant this application for leave and to allow the appeal process to move forward, I must first find that there is a reasonable chance of success on one or more of the grounds of appeal. A reasonable chance of success has been equated to an arguable case.^{Footnote 1}

Issue 1: Is there an arguable case that the General Division failed to observe a principle of natural justice or that it erred by acting beyond or refusing to exercise its jurisdiction?

[7] The only ground of appeal advanced by the Claimant is section 58(1)(a) of the DESD Act, which states that the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction.

[8] The Claimant does not dispute the overpayment, but she argues that there was a significant delay between the time when she was overpaid and when the Commission informed her of the overpayment. She says that her financial circumstances have since changed and that it is difficult for her to repay what she was overpaid. The Claimant does not otherwise explain how the General Division failed to observe a principle of natural justice or erred in jurisdiction.

[9] Natural justice refers to fairness of process and includes procedural protections such as the right to an unbiased decision-maker and the right of a party to be heard and to know the case against him or her. The Claimant has not raised a concern with the adequacy of notice of the hearing, with pre-hearing disclosure of documents, with the manner in which the hearing was conducted or her understanding of the process, or with any other action or procedure that could have affected her right to be heard or to answer the case. Nor has she suggested that the General Division member was biased or had prejudged the matter.

[10] Although the Claimant may consider that her ability to repay the overpayment has been prejudiced by the “delay in communication,”^{Footnote 2} my jurisdiction permits me to consider only the fairness of the General Division process. The Claimant has not raised an arguable case that the General Division failed to observe a principle of natural justice under section 58(1)(a) of the DESD Act.

[11] There is also no arguable case that the General Division made an error of jurisdiction. The General Division refused to reconsider the questions of the allocation of earnings and overpayment because the Claimant had told the Commission she did not dispute these issues—which she maintains. As a result, the reconsideration decision did not address these issues.

[12] Section 112 of the Employment Insurance Act (EI Act) allows the Commission to reconsider its decisions on the request of a person who is the subject of a Commission decision or the employer of such a person. Section 113 gives the General Division jurisdiction over only those decisions made under section 112. In this case, the Commission’s reconsideration decision was limited to the penalty issue. There is therefore no arguable case that the General Division erred by refusing to exercise its jurisdiction on the issue of the earnings that should be allocated or on the amount of the overpayment that resulted.

[13] I note that the Claimant’s request for reconsideration asks the Commission to “waive the charges.” I understand that the Claimant may have intended that the Commission accept her reconsideration request as a request to waive both the penalty and the overpayment. The reconsideration decision withdrew the penalty that the Commission had earlier imposed, but it did not address the Claimant’s inability to repay the overpayment.

[14] The Claimant’s liability to the Commission arises under section 43 of the EI Act. Under section 56(1) of the Employment Insurance Regulations (Regulations), the Commission has the discretion to write off amounts payable under section 43 in certain circumstances. Once such a decision is made, the Commission has no jurisdiction to reconsider it, as stipulated in section 112.1 of the EI Act. Supposing the Claimant to have requested the Commission to write off the overpayment, the Commission would not have been authorized to consider such a request in the course of a reconsideration decision. Therefore, the overpayment could not possibly have come before the General Division.

[15] The write-off or waiver of the overpayment was not an issue in the reconsideration decision and it was not before the General Division. Therefore, there is no arguable case that the General Division had the jurisdiction to consider whether the Claimant’s overpayment should be owed or that it failed to exercise its jurisdiction under section 58(1)(a) of the DESD Act.

[16] There is no reasonable chance of success on appeal.

[17] It is possible that the Commission has still not considered whether it should write off the Claimant’s debt under section 56(1) of the Regulations. If that is the case, it would remain open to the Claimant to request such a decision from the Commission directly, regardless of the result of this appeal.

Conclusion

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