Employment Insurance (EI)

Decision

[1] Leave to appeal is refused. This means the appeal will not proceed.

Overview

[2] The Applicant (Claimant) established a claim for regular benefits. The Respondent (Commission) accepted the Record of Employment (ROE) supplied by his employer. This resulted in a benefit rate of $455.00 per week. The Commission later identified an error in the Claimant’s ROE during an internal file review. It recalculated the Claimant’s benefit rate to be $343.00. This resulted in a $3,989.00 benefit overpayment subject to recovery.

[3] The Claimant requested a reconsideration of this decision on the basis that it was not his fault that the benefit rate was miscalculated. He argued that in these circumstances, he should not be responsible to pay back the benefits.

[4] The General Division concluded that the Claimant’s weekly benefit rate was correctly calculated at $343.00 per week after review of the ROE. It also concluded that even where an error is made by either the employer or the Commission, benefits that are not legally payable to a claimant must be recovered.

[5] The Claimant now seeks leave to appeal of the General Division’s decision to the Appeal Division. He submits that he should not have to repay the EI benefits he received because the General Division found that it was the Commission’s fault. The Claimant puts forward that he had a right to rely on the Commission’s calculations because they are the experts in this field. He submits that he should not bear the burden of the Commission’s error.

[6] I must decide whether there is some reviewable error of the General Division upon which the appeal might succeed.

[7] I refuse leave to appeal because the Claimant’s appeal has no reasonable chance of success.

Issue

[8] Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed?

Analysis

[9] Section 58(1) of the Department of Employment and Social Development Act specifies the only grounds of appeal of a General Division decision. These reviewable errors are that:

1. The General Division hearing process was not fair in some way.
2. The General Division did not decide an issue that it should have decided. Or, it decided something it did not have the power to decide.
3. The General Division based its decision on an important error of fact.
4. The General Division made an error of law when making its decision.

[10] An application for leave to appeal is a preliminary step to a hearing on the merits. It is an initial hurdle for the Claimant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the leave to appeal stage, the Claimant does not have to prove his case but must establish that the appeal has a reasonable chance of success based on a reviewable error. In other words, that there is arguably some reviewable error upon which the appeal might succeed.

[11] Therefore, before I can grant leave, I need to be satisfied that the reasons for appeal fall within any of the above-mentioned grounds of appeal and that at least one of the reasons has a reasonable chance of success.

Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed?

[12] The Claimant submits that he should not have to repay the EI benefits he received because the General Division found that it was the Commission’s fault. He puts forward that he had a right to rely on the Commission’s calculations because they are the experts in this field. The Claimant submits that he should not bear the burden of the Commission’s error.

[13] The General Division concluded that the Claimant’s weekly benefit rate was correctly calculated at $343.00 per week after review of the ROE. It also concluded that even where an error is made by either the employer or the Commission, benefits that are not legally payable to a claimant must be recovered.

[14] Although I am sensitive to the Claimant’s situation, the General Division did not make an error when it concluded that a claimant who receives money for which he is not entitled to, even following a mistake of the Commission or employer, is not excused from having to repay it.^{Footnote 1}

[15] On the issue of a write off, I am of the view that the General Division stayed within its jurisdiction when it concluded that it could not write off the Claimant’s debt. Only the Commission has the discretion to cancel a debt.^{Footnote 2} I note that the General Division suggested that the Commission consider how its own actions contributed to the Claimant’s circumstances before rendering any final overpayment decision.

[16] For the above-mentioned reasons and after reviewing the docket of appeal, the decision of the General Division and considering the arguments of the Claimant in support of his request for leave to appeal, I find that the appeal has no reasonable chance of success.

Conclusion

[17] Leave to appeal is refused.