Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The Claimant, H. G., received employment insurance fishing benefits to which he wasn’t entitled. He has to repay those benefits.

Overview

[2] The Claimant is a fisher. He applied for and received fishing benefits under the Employment Insurance Act (EI Act) and the Employment Insurance Fishing Regulations (Fishing Regs). This was a summer claim that started on September 27, 2020. There is no problem with this claim. This appeal is about what happened after the Claimant received the full 26 weeks of fishing benefits under that claim.

[3] The Claimant says that his Member of Parliament, his union and Service Canada told him that he was entitled to more benefits. The Claimant believed this was an extension of benefits similar to when ice delays the start of the fishing season.

[4] The Claimant applied for the fishing benefits. He still wasn’t sure that he qualified, so he called Service Canada. He says Service Canada assured him that he was entitled to the benefits because of the COVID-19 pandemic.

[5] The Canada Employment Insurance Commission (Commission) established a benefit period for the Claimant effective March 28, 2021, and paid the Claimant benefits from then until May 15, 2021.

[6] The Commission has now decided that the Claimant wasn’t entitled to those benefits, and says he has to repay them.

[7] The Claimant says that if he wasn’t entitled to the benefits the Commission shouldn’t have paid them to him. He shouldn’t have to repay them now.

Issue

[8] The questions I have to answer are:

• Was the Claimant entitled to the benefits he received between March 28, 2021, and May 15, 2021?
• If not, does he have to repay the benefits he received?

Analysis

[9] To receive benefits under the Employment Insurance Act a claimant has to prove that they qualify to receive them.^{Footnote 1} When a claimant receives benefits that they shouldn’t have received, the law says they have to repay those benefits.

Was the Claimant entitled to the benefits he received between March 28, 2021, and May 15, 2021?

[10] No. The Claimant wasn’t entitled to receive those benefits. This is why:

The Claimant didn’t qualify for regular employment insurance benefits.

[11] The Claimant and the Commission agree that the Claimant didn’t qualify for regular employment insurance benefits.^{Footnote 2} This is because he only works in fishing. He had no employment that would have given him the insurable hours needed for regular employment insurance benefits.^{Footnote 3}

[12] There is no evidence in the file to suggest that the Claimant had any employment other than fishing, so I accept that the Claimant didn’t qualify for regular employment insurance benefits.

[13] This is important because a claimant who qualifies for regular employment insurance benefits can’t receive fishing benefits.

The Claimant didn’t qualify for fishing benefits.

[14] To qualify for fishing benefits, claimants can’t be entitled to regular employment insurance benefits. The claimant meets this requirement because he wasn’t entitled to regular employment insurance benefits.

[15] Another requirement for fishing benefits is that a claimant needs a certain amount of earnings from fishing in their qualifying period. This is where it gets a bit complicated. There are two possible qualifying periods with two possible benefit periods for fishing benefits. The Commission usually refers to these two claims as a summer claim and a winter claim.^{Footnote 4}

[16] Parliament made some temporary changes to the law to help fishers receive fishing benefits even if they didn’t have enough earnings to qualify. These temporary rules can be used to qualify once for summer benefits and once for winter benefits.

[17] When the Claimant applied for benefits in April 2021, he applied for winter benefits. It’s not clear why the Commission did it, but it seems it opened another claim for summer benefits. It’s possible the Commission realized the Claimant didn’t qualify for winter benefits even with the temporary rules. For the purposes of this decision, the reason doesn’t matter. I am considering whether the Claimant qualified for a summer or winter claim.

The Claimant didn’t qualify for a summer claim.

[18] The Claimant couldn’t establish a benefit period for a summer claim. This is why:

• The Claimant didn’t have enough earnings from fishing to qualify.
• The Claimant had already relied on the temporary rules to qualify for a summer claim.

[19] When the Claimant applied for benefits in September 2020, he didn’t have enough hours to qualify for benefits without the temporary rules. He needed a minimum of $2,500 in fishing earnings, but the evidence shows that he had only $2,330.^{Footnote 5}

[20] So, the only way the Claimant could establish a claim in September 2020, was to rely on the temporary rules. Relying on the temporary rules, the Claimant was able to establish a benefit period for a summer claim in September 2020.

[21] The law says that claimants can only rely on the temporary rules to establish one summer claim.^{Footnote 6}

[22] The Claimant couldn’t establish a summer claim again in March 2021 because:

• He didn’t have enough earnings from fishing because he hadn’t done any fishing since his September 2020 claim was established.
• He couldn’t rely on the temporary rules because he had already used them to establish a summer claim in September 2020. The temporary rules can only be used to establish one summer claim.

[23] Since the Claimant couldn’t qualify for a summer claim, I considered whether he qualified for a winter claim, which is what he had asked for when he applied in March 2021.

The Claimant didn’t qualify for a winter claim.

[24] The Claimant couldn’t establish a benefit period for a winter claim. This is why:

• He didn’t have any earnings from fishing that would allow him to qualify for a winter claim.^{Footnote 7} The Claimant doesn’t dispute this.
• The Claimant didn’t meet the requirements of the temporary rules that would let him establish a winter claim.

[25] The temporary rules say that a claimant who doesn’t meet the conditions to receive fishing benefits can receive benefits if a benefit period was established for a winter claim in 2020 or 2019.^{Footnote 8}

[26] The Claimant confirmed that he has never made a winter claim. Since he hadn’t established a winter claim in 2020 or 2019, he couldn’t rely on the temporary rules to establish a winter claim in March 2021.

[27] Since the Claimant didn’t meet the requirements under the law to receive fishing benefits (for either a summer or winter claim), he wasn’t entitled to the benefits that he received.

Does he have to repay the benefits he received?

[28] I know the Claimant is going to be disappointed, but yes, he has to repay those benefits.

[29] The law is clear - no matter the reason benefits are received, if a claimant isn’t entitled to them, they have to be repaid.^{Footnote 9} I have no authority to change this, even in cases where it seems unfair to require repayment.

[30] The Claimant is upset that he has to repay more than he actually received in pocket. He has to repay the before tax amount, but, of course, only received the after tax amount in his pocket. Unfortunately, there is nothing I can do about this. The Claimant will have to talk to Canada Revenue Agency about this matter.

[31] The Commission has the authority to write-off overpayments in some very limited circumstances.^{Footnote 10} I don’t have the authority to write off overpayments, nor can I review the Commission’s write-off decisions.^{Footnote 11}

Conclusion

[32] The appeal is dismissed.