Employment Insurance (EI)

Decision

[1] Leave (permission) to appeal is refused. The appeal will not proceed.

Overview

[2] A. H. is the Claimant in this case. She applied for EI maternity benefits and parental benefits on April 28, 2021.^{Footnote 1} She elected for the extended option and asked for 61 weeks of parental benefits in her application form.^{Footnote 2}

[3] The Claimant returned to work the following year, on April 18, 2022. However, she continued to receive parental benefit payments for several months while she worked. She contacted the Commission on August 10, 2022 to stop the payments. However, the extra parental benefit payments she got after returning to work ended up creating an overpayment.

[4] The Claimant asked the Commission to reconsider the overpayment and explained that she picked the standard option for parental benefits and expected it to end after 52 weeks.^{Footnote 3}

[5] The Commission decided that the Claimant could not change her parental benefit election after parental benefits had been paid.^{Footnote 4}  The Claimant appealed that decision to the General Division.^{Footnote 5}    

[6] The General Division came to the same conclusion.^{Footnote 6} The Claimant is now asking for permission to appeal the General Division decision to the Appeal Division.^{Footnote 7} She argues that the General Division made an error of fact.^{Footnote 8}

[7] I am denying the Claimant’s request for permission to appeal because it has no reasonable chance of success.^{Footnote 9}

Issue

[8] Is there an arguable case that the General Division based its decision on an error of fact or error of law when it decided that the Claimant could not change her parental benefits election?

I am not giving the Claimant permission to appeal

[9] An appeal can proceed only if the Appeal Division gives permission to appeal.^{Footnote 10} 

[10] I must be satisfied that the appeal has a reasonable chance of success.^{Footnote 11} This means that there must be some arguable ground upon which the appeal might succeed.^{Footnote 12}

[11] I can only consider certain types of errors. I have to focus on whether the General Division could have made one or more of the relevant errors (the relevant errors are also known as “grounds of appeal”).^{Footnote 13}

[12] The possible grounds of appeal to the Appeal Division are that the General Division:^{Footnote 14}

• proceeded in a way that was unfair
• acted beyond its powers or refused to exercise those powers
• made an error of law
• based its decision on an important error of fact

[13] For the appeal to proceed, I have to find that there is a reasonable chance of success on one of the grounds of appeal.

[14] An error of fact happens when the General Division has “based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it”.^{Footnote 15}

[15] This means that I can intervene if the General Division based its decision on an important mistake about the facts of the case. This involves considering some of the following questions:^{Footnote 16}

• Does the evidence squarely contradict one of the General Division’s key findings?
• Is there no evidence that could rationally support one of the General Division’s key findings?
• Did the General Division overlook critical evidence that contradicts one of its key findings?

[16] An error law happens when the General Division does not apply the correct law or uses the correct law but misunderstands what it means or how to apply it.^{Footnote 17}

The Claimant says that the General Division made an important error of fact

[17] In her application to the Appeal Division, the Claimant argues that the General Division made an error of fact.^{Footnote 18} She doesn’t point to a specific fact or facts, but her written arguments say the following:

• She was underpaid and did not receive the full amount of EI parental benefits
• Since she received less than a full year of EI parental benefit payments, she should not be considered overpaid
• Her intention is to be absolved of the $5,712.00 overpayment debt 

The General Division decided that the Claimant could not change her parental benefit election

[18] The Commission decided that the Claimant could not change her election and this what the Claimant appealed to the General Division.^{Footnote 19}

[19] This means that the General Division had to decide whether the Claimant could change her parental benefits election from extended to the standard option.^{Footnote 20} 

[20] The General Division made the following key findings in its decision:

• The Claimant elected for the extended parental benefits on her application form for EI parental benefits^{Footnote 21}
• The first payment of extended parental benefits was paid to the Claimant by August 6, 2021^{Footnote 22}
• The Claimant asked the Commission to change her election from extended parental benefits to standard parental benefits on August 10, 2022^{Footnote 23}
• The Claimant cannot change her election after parental benefits have been paid because it is irrevocable^{Footnote 24}
• The Claimant’s appeal was dismissed^{Footnote 25}

There is no arguable case that the General Division made an error of fact

[21] The Claimant is arguing that the General Division made an error of fact, but the essential facts do not appear to be in dispute between the parties.

[22] The General Division’s key findings are consistent with the evidence.

[23] First, the application for EI benefits dated April 28, 2021 shows that the Claimant applied for maternity benefits and elected for the extended parental benefit option asking for 61 weeks.^{Footnote 26}

[24] Second, the payment chart shows that she got her first parental benefit payment the first week of August 2021. ^{Footnote 27}

[25] Third, the Claimant’s summary of the telephone discussion with Service Canada on August 10, 2022 confirms that she returned to work on April 18, 2022; she selected extended parental benefits and not standard; she will receive a notice of debt for the overpayment and they would turn off the parental benefits payments effective August 11, 2022.^{Footnote 28}

[26] Lastly, the Commission’s reconsideration decision maintains that the parental benefit election could not be changed.^{Footnote 29}

[27] It is not arguable that the General Division made a mistake about any of the facts in this case. Its key findings were consistent with the evidence. There is no reasonable chance of success on this ground.

There is no arguable case that the General Division made an error of law

[28] I have also considered whether the General Division made an error of law, but there is no arguable case on this ground either.^{Footnote 30}

[29] The General Division relied on the relevant sections of the law to support its decision. The law is clear, a person cannot change their election once parental benefits have been paid.^{Footnote 31}

[30] The General Division relied on three decisions from the Federal Court and the Federal Court of Appeal that confirm the parental benefit election is the one you make on your application form and it cannot be changed after benefits are paid.^{Footnote 32}

[31] The Claimant provided some calculations in her application to the Appeal Division to show that she was underpaid as she received less than a full year of benefit payments.^{Footnote 33} The General Division acknowledged that argument in its decision, but properly stated that there was no legal basis to change the election she made in her application form.^{Footnote 34}

[32] Also, in 2023, the Federal Court of Appeal confirmed that “neither the Commission nor the Tribunal has the jurisdiction to decide an election is invalid or change an election after it is made and parental benefits have been paid”.^{Footnote 35}

[33] This means that the General Division does not have the authority to change the Claimant’s parental benefit election to the standard option because parental benefits under the extended option were paid to her by August 6, 2021.

[34] Essentially, the Claimant is re-arguing that she should be able to receive the money that she would have been entitled to under the standard option as she was only off for one year. But in order to do that, she would have to change her election, which is not possible when parental benefits have been paid.  An appeal to the Appeal Division is not a new hearing. I cannot reweigh the evidence in order to come to a different conclusion that is more favourable for the Claimant.^{Footnote 36}

[35] It is not arguable that the General Division made an error of law when it decided that the parental benefit election could not be changed after parental benefits had been paid. There is no reasonable chance of success on this ground.

There are no other reasons to give permission to appeal

[36] I reviewed the file, listened to the audio recording of the General Division hearing, and examined the General Division decision.^{Footnote 37} I did not find relevant evidence that the General Division might have ignored or misinterpreted.

The Claimant’s overpayment

[37] The Claimant is asking to be absolved of the $5,712.00 overpayment debt she incurred.^{Footnote 38} However, only the Commission has the authority to write-off overpayments in specific circumstances (one of them is financial hardship, but there are other reasons too).^{Footnote 39}

[38] Neither the General Division nor the Appeal Division has the authority in law to write-off an overpayment.^{Footnote 40}

[39] This means that if the Claimant wants a “write off” of the overpayment debt, she has to make that request directly to the Commission and they will render a decision about that issue.

Conclusion

[40] Permission to appeal is refused. This means that the appeal will not proceed.