Employment Insurance (EI)

Decision

[1] I am allowing A. M.’s appeal and making the decision the Canada Employment Insurance Commission (Commission) should have made.

[2] He has proven the Commission didn’t pay him more Employment Insurance Emergency Response Benefits (EI-ERB) than he was entitled to get.^{Footnote 1}

[3] So the Commission’s decision to create and collect an $2,000 overpayment from him is wrong.

[4] The Commission should make sure he is paid back $2,000. This is the amount of money the Canada Revenue Agency (CRA) deducted from his tax refund to recover the debt the Commission said he owed.

[5] I have also decided A. M. has proven he is eligible for another 2 weeks of EI-ERB ($1,000), which the Commission should now pay him.

Overview

[6] A. M. (the Appellant) stopped working because of the COVID-19 pandemic.

[7] He applied for Employment Insurance (EI) benefits. Then filed reports with the Commission for April 5, 2020 to May 23, 2020 (7 weeks).

[8] So the Commission paid him the EI-ERB—an advance payment ($2,000) soon after he applied and then $500 a week for the next 7 weeks.

[9] About two years later the Commission decided the Appellant was not legally entitled to keep the EI-ERB advance payment. It sent him a decision letter explaining why, and a notice of debt for $2,000.

[10] The CRA recovered the $2,000 debt by taking it out of his income tax refund.

[11] The Appellant says he didn’t owe the Commission $2,000. He stopped filing reports in May 2020 because he thought he was going back to work then. But it turned out he went back to work on July 2, 2020. So he says he was eligible for more EI-ERB—enough to pay off the overpayment.

Issue

[12] Does the Appellant owe an overpayment of $2,000 (EI-ERB advance payment)?

Analysis

Temporary changes to Employment Insurance Act during COVID

[13] In response to the COVID-19 pandemic, the federal government made temporary changes to the Employment Insurance Act (EI Act).^{Footnote 2} The following changes are important to this appeal:

• a person could apply for the EI-ERB for a two-week period, and had to follow the Commission’s rules and give it the information it needed to decide their application^{Footnote 3}
• the Commission made $2,000 EI-ERB advance payments to eligible people, as soon as possible after they applied^{Footnote 4}
• the weekly EI-ERB benefit was $500 per week^{Footnote 5}
• the Commission recovered the $2,000 advance payment by not paying a person a weekly EI-ERB benefit in 4 weeks (13, 14, 18, and 19)^{Footnote 6}

[14] The changes to the law also allowed the Commission to go back and review a person’s entitlement to EI-ERB—up to 36 months after they got an EI-ERB payment.^{Footnote 7} And to create and collect an overpayment (and debt) where a person got more EI-ERB than they were entitled to get.^{Footnote 8}

What the Commission and the Appellant say

[15] The Commission says it paid the Appellant an EI-ERB advance payment of $2,000 (covering 4 weeks), plus 7 weekly payments of $500.^{Footnote 9} So he got a total of 11 weeks ($5,500) of EI-ERB.

[16] The Commission says the Appellant proved he was eligible for 7 weekly EI-ERB payments. He did this by filing reports with the Commission for April 5, 2020 to May 23, 2020.

[17] But because he stopped getting the EI-ERB after 7 weeks, the Commission could not recover the $2,000 advance payment from him (in weeks 13, 14, 18, and 19). So this was an overpayment (and debt) he had to repay.

[18] The Commission acknowledges the Appellant went back to work on July 2, 2020. This is what his record of employment shows.^{Footnote 10} So when it was deciding his reconsideration request, it contacted him to get missing reports for the weeks he didn’t work. But he didn’t respond.^{Footnote 11}

[19] The Appellant says he doesn’t owe the $2,000 overpayment. He explained he stopped filing reports in early May 2020 because he thought he would be called back to work then. But the situation was uncertain and in flux. As it turned out, he was off work until July 2, 2020.^{Footnote 12}

The overpayment is wrong and the Commission owes the Appellant additional EI-ERB benefits

[20] I have reviewed the Commission’s evidence and calculation of the EI-ERB it paid to the Appellant and the overpayment it says he owes.^{Footnote 13}

[21] I accept the Commission’s evidence that it paid the Appellant the EI-ERB advance payment (4 weeks) plus 7 weeks of benefits. I also accept the Commission’s evidence about the reports he filed. The Appellant doesn’t dispute these things. And there is no evidence that goes against the Commission’s evidence.

[22] But I find the Appellant doesn’t owe the Commission an overpayment (or debt).

[23] I find the Appellant has proven he was eligible for 6 more weeks of EI-ERB—from May 24, 2020 to July 5, 2020—after he stopped filing reports.^{Footnote 14} I find that he didn’t go back to work until July 2, 2020. I have no reason to doubt what the Appellant said in his testimony or documents. And no reason to doubt what his employer wrote on his record of employment. There is no evidence that goes against this.

[24] The Commission seems to agree that he was probably eligible for these additional weeks of EI-ERB. But it couldn’t make that decision without reports (or more information) from him to back it up.

[25] Based on my findings, I will re-calculate the Appellant’s eligibility for the EI-ERB. (I am going to ignore the EI-ERB he got in weeks 1 through 7 because the parties agree he was entitled to it.)

[26] Here is my calculation—in other words, my findings:

• the Appellant has proven he was eligible for the $500 EI-ERB in weeks 8, 9, 10, 11, 12, and 13 (start with $3,000)
• the Commission can recover one week of the advance payment in week 13 (subtract $500)
• the Commission can’t recover the other three weeks of the advance payment from weekly benefits, meaning this is an overpayment he owes the Commission^{Footnote 15} (subtract $1,500)
• so, in the end, the Appellant has proven the Commission owes him $1,000

Conclusion

[27] I have made the decision the Commission should have made if the Appellant had given it the information it needed to decide his eligibility for the EI-ERB.

[28] The Appellant has proven that he doesn’t owe an overpayment.

[29] The Commission should make sure he is paid back $2,000. This is the amount of money the CRA deducted from his tax refund to recover the debt the Commission said he owed.

[30] I have also decided the Appellant has proven he is entitled to 2 weeks of EI-ERB ($1,000), which the Commission should now pay to him.

[31] So I am allowing his appeal.