Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

[2] I find that the Canada Employment Insurance Commission (Commission) correctly calculated the Appellant’s weekly EI benefit rate.^{Footnote 1}

[3] I find that the Commission is justified in asking the Appellant to repay the amount of money she was overpaid in benefits (overpayment).^{Footnote 2}

Overview

[4] From March 22, 2021, to April 1, 2022, the Appellant worked as an administrative assistant for X (employer) and stopped working for that employer because of an illness or injury.^{Footnote 3}

[5] On April 9, 2022, she made an initial claim for benefits (sickness or special benefits).^{Footnote 4} A benefit period was established effective April 3, 2022.^{Footnote 5}

[6] On June 19, 2022, Employment and Social Development Canada sent the Appellant a notice of debt telling her that a change in her insurable employment had resulted in an “overpayment” of benefits.^{Footnote 6}

[7] On August 8, 2022, the Commission verbally informed her that her weekly benefit rate had been set at $413 instead of $638.^{Footnote 7}

[8] On December 1, 2022, following a reconsideration request, the Commission told her that it was upholding the August 8, 2022, decision about calculating her weekly benefit rate (benefit rate – overpayment). The Commission told her that she would receive a notice of debt and that the amount she owed could be deducted from her future benefits.^{Footnote 8}

[9] The Appellant says that, looking at her online EI account (My Service Canada Account), she found that it contained two Records of Employment (ROE) issued in her name by employers she hadn’t worked for. She says that in April 2022 she went to a Service Canada Centre more than once to show that the ROEs in question were fraudulent and should not be taken into account when determining her weekly benefit rate. The Appellant says that, despite that report, the Commission told her that the ROEs in question had been taken into account to establish her weekly benefit rate. She says that she asked the Commission not to pay her benefits until the problem with fraudulent ROEs was resolved, but was unsuccessful. She says that she received benefits at a weekly rate that took into account all the ROEs issued in her name, including those that were fraudulent, when that should not have been the case.

[10] The Appellant says that she doesn’t object to the weekly benefit rate the Commission established after corrections were made to her file. She says that she objects to the fact that the Commission ignored her specific request that it not consider the fraudulent ROEs issued to her to determine her weekly benefit rate and pay her benefits. The Appellant argues that the Commission made an error in her EI file. She points out that the Commission took a long time to fix it.

[11] The Appellant is asking to write off the overpayment amount the Commission says she has to pay back. She says that it is difficult for her to repay the amount it says she owes.

[12] On December 31, 2022, the Appellant challenged the Commission’s reconsideration decision. This decision is being appealed to the Social Security Tribunal of Canada (Tribunal).

Issues

[13] I have to decide whether the Commission correctly calculated the Appellant’s weekly EI benefit rate.^{Footnote 9}

[14] I also have to decide whether the Commission is justified in asking the Appellant to repay the benefits she was overpaid.^{Footnote 10}

Analysis

Appellant’s weekly benefit rate

[15] The weekly benefit rate paid to a claimant is the maximum amount they can receive for each week in their benefit period. The general rule is that the weekly benefit rate is 55% of a claimant’s average weekly insurable earnings.^{Footnote 11}

[16] This rate is calculated using the number of weeks when a claimant’s (excluding fishers and self-employed workers) insurable earnings were the highest (best weeks) in their qualifying period.^{Footnote 12} Generally, the qualifying period is the 52-week period before the start of a person’s benefit period.^{Footnote 13}

[17] The number of weeks taken into account for the calculation can vary from 14 to 22 weeks.^{Footnote 14} This number is based on the regional rate of unemployment in the area where the claimant ordinarily resides, as of the start date of their benefit period.^{Footnote 15}

[18] The average weekly insurable earnings amount is determined by dividing the total insurable earnings of the weeks used to make the calculation by that number of weeks.^{Footnote 16}

[19] The Commission argues the following:

1. a) The Appellant’s qualifying period was established from April 4, 2021, to April 2, 2022. Her benefit period was established effective April 3, 2022.^{Footnote 17}
2. b) The required number of “best weeks” for calculating the weekly benefit rate when the unemployment rate is 4.8% (rate of unemployment established at 4.8% for the period from March 13, 2022, to April 9, 2022, in the EI economic region of Central Quebec where the Appellant resides) is 22 weeks.^{Footnote 18}
3. c) The Appellant’s weekly benefit rate was initially calculated based on earnings that she hadn’t earned, since these earnings came from, among other sources, two fraudulent ROEs out of three that appeared in her file. The Commission had to fix the Appellant’s file so that her benefit rate would be in compliance with the Act. Even though the fraudulent activities in the Appellant’s file constitute a special situation, the benefit rate has to be calculated the same way it would be for any other claimant.^{Footnote 19}
4. d) In establishing the Appellant’s benefit period, taking into account the three ROEs issued in her qualifying period, the Commission determined that the total insurable earnings in the calculation period were $25,512.^{Footnote 20}
5. e) The weekly benefit rate was calculated as follows: Average weekly insurable earnings: $25,512 / 22 = $1,159.64. Weekly benefit rate: $1,159.64 x 55% = $638 (rounded to the nearest dollar).^{Footnote 21}
6. f) After the Commission’s investigation was finalized on June 4, 2022, it determined that only one of the three records in the Appellant’s file was legitimate and should have been considered in calculating her weekly benefit rate. The Commission decided that the Appellant’s total insurable earnings had to be established at $16,539.^{Footnote 22}
7. g) The weekly benefit rate was calculated as follows: Average weekly insurable earnings: $16,539 / 22 = $751.70. Weekly benefit rate: $751.70 x 55% = $413 (rounded to the nearest dollar).^{Footnote 23}
8. h) The rate was recalculated to determine the amount that was actually payable to the Appellant. This recalculation showed that the Appellant was overpaid $1,350 in benefits. This amount is the Appellant’s overpayment for the period from April 10, 2022, to May 21, 2022 (six weeks).^{Footnote 24}

[20] The Appellant says that she doesn’t object to the Commission’s calculations to establish her new weekly benefit rate at $413.

[21] She says that she primarily objects to the Commission ignoring her request not to pay her benefits until corrections were made to her EI file to avoid taking into account the fraudulent ROEs.^{Footnote 25}

[22] In this case, I find that the Commission correctly calculated the Appellant’s weekly benefit rate after making corrections by excluding the two fraudulent ROEs in her file from its calculation.

[23] In doing so, the Commission considered only the Appellant’s period of employment during her qualifying period established from April 4, 2021, to April 2, 2022, which is part of her period of employment from March 22, 2021, to March 31, 2022.

[24] The Federal Court of Appeal (Court) tells us that a claimant’s weekly benefit rate is based on their weekly insurable earnings.^{Footnote 26} The Court says that the rate for these benefits—55% of weekly insurable earnings—and the method for calculating it are the same for all claimants.^{Footnote 27}

[25] I find that the Commission also correctly determined the overpayment amount that resulted from the Commission’s recalculation.^{Footnote 28} The Appellant’s weekly benefit rate changed from $638 to $413—a difference of $225.

[26] For each of the six weeks the Appellant received $638 in benefits for the period from April 10, 2022, to May 21, 2022, the total overpayment is $1,350. This amount is the same as the one on the notice of debt sent to the Appellant on June 19, 2022.^{Footnote 29}

[27] I find that the Commission has shown that it correctly calculated the Appellant’s weekly benefit rate after the corrections it made. It considered the Appellant’s total earnings from the employer she worked for during her qualifying period.

[28] The Commission also correctly determined the overpayment amount that resulted from the corrections made to the Appellant’s weekly benefit rate.

Liability to repay overpaid benefits

[29] The Commission is justified in asking the Appellant to repay the amount she was overpaid in benefits.

[30] If a person received EI benefits they weren’t entitled to or were disqualified from, they are required to pay back those benefits or the resulting overpayment.^{Footnote 30}

[31] The Commission has 36 months to reconsider any claim for benefits paid or payable to a claimant.^{Footnote 31} That period is 72 months if the Commission is of the opinion that a false or misleading statement or representation has been made in connection to a claim.^{Footnote 32}

[32] The Commission may write off an amount owing under specific conditions.^{Footnote 33} Write-off means cancelling or waiving a debt or an amount owing (for example, an overpayment).

[33] The Commission argues the following:

1. a) The Commission didn’t make an error when it initially calculated the Appellant’s weekly benefit rate. Calculations to determine this rate were made on April 11, 2022. The Appellant’s file was already under investigation, but no decision had been made on the authenticity of the ROEs in that file. This means the three records were taken into account in the Commission’s calculations.^{Footnote 34}
2. b) The Commission imposes a stop payment when a file is under investigation to avoid an overpayment. In the Appellant’s case, the stop payment was removed before the investigation’s findings were fully applied. In other words, before her benefit rate was recalculated. This explains why the Appellant was overpaid.^{Footnote 35}
3. c) The initial calculation of the benefit rate included insurable earnings that the Appellant didn’t actually have.^{Footnote 36}
4. d) Only the insurable earnings that the Appellant actually earned can be used to determine her rate of weekly benefits.^{Footnote 37}
5. e) The Commission reconsidered and corrected the Appellant’s file retroactively because benefits had been paid to her contrary to the structure of the Act.^{Footnote 38}
6. f) The Commission always reconsiders when benefits have been paid contrary to the structure of the Act and when an overpayment is created. That is the case whether or not it made the payment by mistake.^{Footnote 39}
7. g) The fraudulent activities in the Appellant’s file were properly taken into account in the handling of her file. The timing of the transactions after the Commission’s investigation led to the overpayment of benefits.^{Footnote 40}
8. h) The Commission had no choice but to correct the Appellant’s file so that her benefit rate would be in compliance with the Act.^{Footnote 41}
9. i) The Appellant received more benefits than she was entitled to because of fraudulent activities in her file and because the stop payment was removed before her benefit rate was recalculated.^{Footnote 42}
10. j) The Appellant has to pay back the amount she was overpaid in benefits because she isn’t entitled to them.^{Footnote 43}
11. k) The Appellant has nothing more to pay back than what she was overpaid.^{Footnote 44}

[34] The Appellant’s testimony and statements indicate the following:

1. a) In April 2022, she repeatedly asked the Commission not to take into account ROEs issued in her name by employers she hadn’t worked for to determine herweekly benefit rate. Those records were fraudulent.^{Footnote 45}
2. b) The Commission didn’t consider this request or the fact that she had been a victim of fraud in her EI file. The Commission didn’t establish her weekly benefit rate using only the actual ROE in her file.^{Footnote 46}
3. c) The Commission made an error in her file by paying her benefits without excluding the fraudulent ROEs from its calculations.^{Footnote 47}
4. d) She doesn’t have to pay for the Commission’s mistake or bear the consequences.^{Footnote 48}
5. e) It isn’t her fault that the Commission took a long time to sort out her case.^{Footnote 49}
6. f) She disagrees with having to pay back the amount the Commission says she owes in overpaid benefits.^{Footnote 50}
7. g) She asks that the Commission’s demand for repayment be written off.^{Footnote 51}
8. h) She says that she finds it difficult to repay the amount it says she owes.

[35] I find that the Commission exercised its right to reconsider the Appellant’s claim within the time limit.^{Footnote 52}

[36] The Commission also exercised its right to ask the Appellant to repay the amount she was overpaid in benefits.^{Footnote 53}

[37] Even though the Appellant argues that she asked the Commission not to take into account the fraudulent ROEs in her file before establishing her weekly benefit rate and paying her benefits, the fact is that she received benefits she wasn’t entitled to.

[38] Although the Appellant disagrees that she has to pay back the amount it says she owes in overpaid benefits, she still has to repay that amount. This is an overpayment that has to be paid back.

[39] The Court tells us that the amount of an overpayment specified in a notice of debt becomes repayable on the date of notification of the overpayment and that a person who receives an overpayment of benefits is to return the amount of overpayment without delay.^{Footnote 54}

[40] I don’t accept the Appellant’s argument that the Commission made an error in her file and that, for that reason, she isn’t required to pay back the amount it says she owes in overpaid benefits. The Appellant’s statements on this point can’t exempt her from her obligation to repay the amount of money in question.

[41] The Court tells us that an amount a claimant received without being entitled to it—even if the Commission made a mistake—doesn’t make them entitled to receive the amount in question or excuse them from paying it back.^{Footnote 55}

[42] Even though several months passed before the Commission told the Appellant that her weekly benefit rate had been reduced, this situation doesn’t change the fact that she was overpaid benefits because of the calculations to establish that rate.

[43] But, I am of the view that the Commission should have acted quickly to consider the Appellant’s efforts to tell it that fraudulent ROEs were in her EI file and to make the necessary corrections to establish her new benefit rate before paying her benefits.

[44] Although the Appellant is asking that the amount she was overpaid in benefits be written off, I note that the Tribunal doesn’t have jurisdiction to decide on writing off an overpayment.^{Footnote 56} That authority rests with the Commission.

[45] In summary, the Appellant’s situation can’t exempt her from her obligation to pay back the amount she was overpaid in benefits and that she isn’t entitled to.

[46] Although sympathetic to the Appellant’s situation, the Court tells us that adjudicators, including the Tribunal, can’t rewrite the law or interpret it in a way that is contrary to its plain meaning.^{Footnote 57}

[47] I find that the Commission is justified in asking the Appellant to pay back the overpayment. It is up to the Commission to determine how that amount is to be repaid.

Conclusion

[48] I find that the Commission correctly calculated the Appellant’s weekly benefit rate.

[49] I find that the Commission is justified in asking the Appellant to pay back the amount it overpaid her in benefits for the weeks in question.

[50] This means that the appeal is dismissed.