Employment Insurance (EI)

Decision

[1] The appeal is dismissed. I find that the Canada Employment Insurance Commission (Commission) is justified in asking the Appellant to pay back the amount of money he was overpaid as an advance payment of the Employment Insurance (EI) Emergency Response Benefit (ERB) (overpayment).^{Footnote 1} The Appellant has to pay it back.

Overview

[2] On April 12, 2020, after working as a forklift operator for the employer X from January 28, 2020, to April 7, 2020, the Appellant made an initial claim for EI benefits (regular benefits).^{Footnote 2} A benefit period was established effective April 5, 2020, so that he could receive the EI ERB.^{Footnote 3}

[3] On May 28, 2022, Employment and Social Development Canada sent the Appellant a notice of debt.^{Footnote 4}

[4] In response to a request from the Tribunal, the Commission says that it didn’t send the Appellant a letter informing him of the initial decision in his case concerning an overpayment of benefits.^{Footnote 5} Instead, it sent him a notice of debt.^{Footnote 6} I find that the notice of debt that was sent to the Appellant on May 28, 2022, serves as the initial decision in this case.^{Footnote 7}

[5] On September 20, 2022, after a request for reconsideration, the Commission told the Appellant that it was maintaining the decision about his benefit overpayment ([translation] “advance payment – recovery of lump sum payment”).^{Footnote 8}

[6] The Appellant explains that he received a total of $4,500 in benefits. He argues that it wasn’t just the EI ERB or the Canada Emergency Response Benefit (CERB). He says that he received $2,000 in EI ERB or CERB and $2,500 in EI regular benefits. He argues that he was entitled to the benefits he received. On October 11, 2022, he challenged the Commission’s reconsideration decision before the Tribunal. That decision is now being appealed to the Tribunal.

Issue

[7] I have to decide whether the Commission is justified in asking the Appellant to pay back the amount of money he was overpaid as an advance payment of the EI ERB (overpayment) and whether he has to pay this money back.^{Footnote 9}

Analysis

[8] Because of COVID-19,^{Footnote 10} changes were made to the Employment Insurance Act (Act). For example, the EI ERB was introduced. People can become EI ERB claimants for different reasons. This type of benefit isn’t just for those who have stopped working for reasons related to COVID-19.

[9] A claimant can get the EI ERB if, for example, their benefit period could have been established for EI regular benefits, among other things, during the period from March 15, 2020, to September 26, 2020, inclusive.^{Footnote 11} However, for that period, no benefit period is to be established for EI regular benefits or special benefits (for example, sickness benefits).^{Footnote 12}

[10] In this case, the Commission talked about the CERB and EI ERB payments that the Appellant had received.^{Footnote 13} The Appellant referred to the benefits he had received as the CERB and as EI regular benefits.^{Footnote 14}

[11] I note that even though the EI ERB and the CERB can be considered similar, they are two different types of benefits.

[12] When these types of benefits were available, that is, from March 15, 2020, to October 3, 2020 (week of September 27, 2020), inclusive, those normally entitled to EI benefits (regular or special benefits) got the EI ERB, and those not normally entitled to them got the CERB, if they qualified for it.

[13] The amount paid was the same in both cases: $500 per week.^{Footnote 15}

[14] In this case, based on the information in the Commission’s arguments, the Appellant received the EI ERB.^{Footnote 16} The Commission says that he met the conditions to receive benefits and that he could have had a benefit period established effective March 22, 2020.^{Footnote 17} I will refer to what he received as the EI ERB.^{Footnote 18}

[15] The Act says that if a person has received EI benefits—including the EI ERB—they weren’t entitled to or because [sic] they were disqualified from receiving those benefits, they have to repay those benefits or the resulting overpayment.^{Footnote 19}

[16] The Commission has 36 months to reconsider a claim for benefits paid or payable to a claimant, including the EI ERB. The Commission has 72 months if, in its opinion, a false or misleading statement or representation has been made in connection with a claim.^{Footnote 20}

[17] The Commission argues as follows:

1. a) On April 13, 2020, the Appellant received an advance payment of $2,000. That payment is the equivalent of four weeks of EI ERB (4 × $500 = $2,000). The Commission may pay the EI ERB in advance of the customary time for paying it.^{Footnote 21}
2. b) The Appellant also received benefits for five weeks, from April 5, 2020, to May 9, 2020, at a rate of $500 per week, for a total of $2,500 (5 × $500 = $2,500).^{Footnote 22}
3. c) Including the $2,000 advance payment, the Appellant received the equivalent of nine weeks of benefits (9 × $500 = $4,500), despite claiming benefits for only five weeks.^{Footnote 23}
4. d) An overpayment was created because of the advance payment he received. The overpayment is the equivalent of four weeks of benefits, that is, $2,000 (4 × $500 = $2,000).^{Footnote 24}
5. e) Since the Appellant claimed benefits for only five weeks, the benefit payment system could not recover the overpayment. This is because it was programmed not to pay benefits at weeks 13 and 14 of the benefit payment sequence and at weeks 20 and 21.^{Footnote 25}
6. f) This means that the amount of money the Appellant received as an advance payment could not be deducted in his 13^th and 14^th weeks of benefits and in his 20^th and 21^st weeks of benefits.^{Footnote 26}
7. g) Although the Appellant says he didn’t receive $2,000 under the EI ERB, since he didn’t receive $2,000 in a single payment,^{Footnote 27} the evidence shows the contrary. He was paid $2,000 on April 13, 2020.^{Footnote 28} His bank statement shows that an amount of $2,000 was deposited into his account on April 21, 2020.^{Footnote 29}
8. h) The Appellant received benefits for each week for which he claimed benefits. He also received a $2,000 advance payment. The $2,000 wasn’t recovered. He has to pay it back.^{Footnote 30}

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

1. a) He received a total of $4,500 in benefits,^{Footnote 31} but that isn’t the amount he received in EI ERB.
2. b) The $2,000 cheque he received (payment made on April 13, 2020) was an EI ERB payment.^{Footnote 32} That is the only amount of money he received relating to the EI ERB. According to him, the EI ERB is paid in instalments of $2,000.^{Footnote 33}
3. c) When he claimed the EI ERB, he met all the requirements to receive this type of benefit.^{Footnote 34}
4. d) After he stopped working at X, he didn’t claim the EI ERB.^{Footnote 35}
5. e) He also received $2,500, specifically two $1,000 cheques and one $500 cheque,^{Footnote 36} but those weren’t EI ERB payments, according to him. They were EI regular benefits. He also talked about [translation] “social benefits” in this case.^{Footnote 37}
6. f) He argues that he was entitled to the benefits he received.^{Footnote 38}

[19] In this case, the Appellant acknowledges that he received a total of $4,500 in benefits, which includes the $2,000 EI ERB advance payment.

[20] Concerning the $2,500 he received in addition to the advance payment, those payments weren’t regular benefits as he claims. He could not receive regular benefits for the period from April 5, 2020, to May 9, 2020.

[21] This wasn’t possible because of the provisions of the Act^{Footnote 39} relating to the COVID-19 pandemic.

[22] A benefit period was established effective April 5, 2020, so that the Appellant could receive the EI ERB.^{Footnote 40}

[23] Claims for regular benefits or special benefits (for example, sickness benefits) with benefit periods starting between March 15, 2020, and September 26, 2020, inclusive, are considered claims for the EI ERB or the CERB, whichever applies.^{Footnote 41}

[24] Even though the Appellant met the conditions to receive benefits and could have had a benefit period established effective March 22, 2020,^{Footnote 42} he could not receive regular benefits, given that he made his claim for benefits on April 12, 2020.

[25] I don’t accept the Appellant’s argument that the $1,000 or $500 amounts he received in benefits by cheque were regular benefits and that only the $2,000 cheque was a cheque for the EI ERB.

[26] The cheques he received, totalling $4,500,^{Footnote 43} were EI ERB payments.

[27] The Appellant received a $2,000 advance payment, on top of receiving benefits for five weeks.

[28] The $2,000 advance payment he received is the equivalent of four weeks of benefits.

[29] This means that he received nine weeks’ worth of benefits, when he could receive benefits for five weeks, from April 5, 2020, to May 9, 2020.

[30] The Commission wasn’t able to recover the $2,000 advance payment when the Appellant received the EI ERB.

[31] According to the Commission’s explanations, the advance payment was supposed to be recovered from the Appellant’s 13^th and 14^th weeks of benefits and then from his 20^th and 21^st weeks of benefits, but this wasn’t possible, since he received the EI ERB for only five weeks.

[32] Even though the Appellant disagrees with having to pay back the $2,000 EI ERB advance payment he received, the fact is that he has to pay it back.

[33] The Appellant received this advance payment in addition to receiving benefits for all five weeks for which he claimed benefits.

[34] This means that the $2,000 advance payment that the Commission was unable to recover when it paid him the EI ERB is an overpayment that has to be repaid.

[35] The Federal Court of Appeal (Court) tells us that the amount of an overpayment specified in a notice of debt becomes repayable on the date of the notification of the amount of the overpayment and that a person who receives an overpayment of benefits is required to return the amount of the overpayment without delay.^{Footnote 44}

[36] The Appellant’s situation can’t relieve him from his liability to repay the benefit overpayment that he owes.

[37] While I sympathize with the Appellant’s case, the Court tells us that adjudicators, including the Tribunal, aren’t permitted to rewrite the Act or to interpret it in a manner that is contrary to its plain meaning.^{Footnote 45}

[38] I find that the Commission is justified in asking the Appellant to pay back the overpayment. It is up to the Commission to consider how he should pay back the amount of money it says he owes.

Conclusion

[39] I find that the Appellant has to pay back the amount of money that he was overpaid as an advance payment of benefits, and that the Commission says he owes, in the manner determined by the Commission.

[40] This means that the appeal is dismissed.