Employment Insurance (EI)

Decision

[1] M. R. is the Appellant in this appeal. I am dismissing his appeal.

[2] He hasn’t shown he was eligible to keep 3 weeks ($1,500) of the Employment Insurance Emergency Response Benefit (EI ERB) advance payment he received.^{Footnote 1}

[3] This is an overpayment he owes to the Commission.

Overview

[4] The Appellant’s employer (Canadian Armed Forces) laid him off during the COVID pandemic.

[5] He applied for Employment Insurance (EI).

[6] The Commission decided he was eligible for the EI ERB. The Commission paid him an advance payment ($2,000) soon after he applied. And it paid him 12 weeks of EI ERB.

[7] The Commission recovered one week of the EI ERB advance payment, in the final week of his last EI ERB claim.

[8] About two years later, the Commission reviewed his EI ERB claims. It decided he wasn’t eligible to keep the other 3 weeks ($1,500) of the EI ERB advance payment. So the Commission decided this is an overpayment he has to pay back.

[9] The Appellant says it’s not fair to ask him to repay all of the overpayment over three years later. During 2020 he called the Commission many times and was told there was nothing owing, and he had no debt.

Issues

[10] I have to decide two issues in this appeal:

• whether the Appellant was eligible to keep the EI ERB advance payment
• whether the Commission correctly calculated his overpayment, taking into account his eligibility for weekly EI ERB payments

Analysis

[11] It’s up to someone who applies for an EI benefit to show they are eligible for that benefit.^{Footnote 2}

[12] In this appeal, the Appellant has to prove he was eligible for the EI ERB advance payment and weekly benefits the Commission paid him. He has to prove this on a balance of probabilities. In other words, he has to show it’s more likely than not he was eligible.

The EI Emergency Response Benefit (EI ERB)

[13] The federal government made temporary changes to the Employment Insurance Act (EI Act) in response to the COVID-19 pandemic.^{Footnote 3} One of those changes was to create the EI ERB. Here are the EI ERB rules that are important for this appeal:

• Between March 15, 2020, and September 26, 2020, the Commission had to treat applications for EI regular and sickness benefits as applications for the EI ERB .^{Footnote 4}
• Any person could file a claim for the EI ERB for a two-week period, and they had to follow the Commission’s rules and give it the information it needed to decide their application.^{Footnote 5}
• To be eligible for the EI ERB, a person had to show they
• didn’t work for 7 consecutive days in a two-week period and had no income for those days in a two-week period; or
• earned $1,000 or less over a four-week period.^{Footnote 6}
• The usual EI ERB weekly benefit the Commission paid was $500.^{Footnote 7}
• The Commission made EI ERB advance payments of $2,000 to eligible people as soon as possible after they applied for EI.^{Footnote 8}
• The Commission decided it would recover the $2,000 advance payment by not paying a person a weekly EI ERB benefit in 4 weeks (weeks 13, 14, 18, and 19).^{Footnote 9}

[14] The changes to the law also allowed the Commission to go back and review a person’s eligibility for the EI ERB up to 36 months after they got an EI ERB payment.^{Footnote 10}And the Commission could set up and collect an overpayment if a person got more EI ERB than they were eligible for.^{Footnote 11}

What the Commission and the Appellant say

[15] The Commission says it paid the Appellant an EI ERB advance payment of $2,000.^{Footnote 12} Then it paid him 12 weekly payments ($6,000). So it paid him total of $8,000.

[16] The Commission says it paid the Appellant for 9 weeks (March 15 through May 10, 2020) Then he went back to work the week of May 17, 2020, and stopped filing reports.

[17] The Commission says the Appellant made a new EI ERB claim in early September 2020. He was eligible for 4 weeks in September. The Commission paid him 3 weeks and used 1 week to recover $500 of the advance payment (week 29; September 27, 2020).

[18] Because the EI ERB was no longer offered after that week, the Commission says it didn’t recover any more weeks of the EI ERB. In other words, it didn’t recover 3 weeks of EI ERB ($1,500). This is an overpayment the Appellant has to pay back.^{Footnote 13}

[19] The Appellant says it would be unfair to make him pay back all of the EI ERB advance payment overpayment.^{Footnote 14} He called EI many times in 2020 and was told he didn’t owe anything. These were “false statements.” He lost his job and income during COVID, so he should be entitled to keep all the EI ERB he received.

The advance payment overpayment ($1,500) is correct

[20] I have reviewed the Commission’s evidence of the EI ERB advance payment it paid to the Appellant. I also reviewed Commission’s evidence about the week of EI ERB advance payment it recovered.^{Footnote 15}

[21] There is no evidence that goes against the Commission’s evidence about these things. And I have no other reason to doubt the Commission’s evidence.

[22] So based on the evidence I have accepted and the law I set out above, I find:

• The Commission paid the Appellant the EI ERB advance payment ($2,000).
• The Commission recovered 1 week ($500) of the EI ERB advance payment.
• This means the Appellant received 3 weeks ($1,500) of EI ERB advance payment he wasn’t legally eligible to keep.

[23] This means the Appellant has a $1,500 overpayment.

[24] I can’t accept the Appellant’s argument that he should not have to pay back the overpayment because the Commission made “false statements” to him. The courts have decided the Commission can’t change the qualifying conditions for EI benefits, even for special benefits.^{Footnote 16} And the Commission has to apply the EI Act as it is written—even where the Commission has provided misinformation.^{Footnote 17}

The Appellant isn’t eligible for any more weeks of the EI ERB

[25] If the Appellant is eligible for more weeks of EI ERB than the Commission paid him, I can use any extra week(s) to reduce his overpayment balance.

[26] There are two pathways a person can use to show they are eligible for weekly EI ERB payments:

• General test^{Footnote 18}
• Alternative pathway^{Footnote 19}

The general test for eligibility

[27] The general test for eligibility for the EI ERB is based on a two-week period.

[28] The Commission has to assess the Appellant’s eligibility for a two-week period. And then pay benefits for that two-week period if the Appellant is eligible. The Commission can’t pay only one week ($500) out of the two weeks. Either it pays both weeks ($1,000) or no weeks.^{Footnote 20}

[29] A person is eligible for the EI ERB if they:

• stopped work for at least seven consecutive days within a two-week period, and
• had no income from employment for the days they weren’t working in that two-week period.

[30] The Tribunal’s Appeal Division supports the EI ERB two-week period—a person makes their claim for a two-week period, the Commission assesses their eligibility for a two-week period, and the Commission pays eligible people $1,000 for a two-week period.^{Footnote 21} I find the Appeal Division’s decisions are well-reasoned and I am persuaded by them. So I am going to follow them.

The alternative pathway to eligibility

[31] If a person isn’t eligible under the general test, they might be eligible under the alternative pathway.^{Footnote 22} To decide whether a person is eligible for EI ERB for a two-week claim period, the alternative pathway focuses on how much income the Appellant earned over 4 weeks.

[32] So to review the Appellant’s eligibility for a two-week claim period, I have to consider the four-week period leading up to and including the two-week claim period.^{Footnote 23} To do this:

• identify the two-week claim period being reviewed (it doesn’t matter whether the Commission originally paid the person the EI ERB for this period)
• go back in time and find the most recent two weeks that the person received the EI ERB (in other words, skip any week they didn’t get the EI ERB)
• add together their earnings for those four weeks
• if their total earnings is $1,000 or less, the person is eligible for the EI ERB for the two-week claim period being reviewed

The Appellant’s eligibility for weekly EI ERB

[33] The Appellant and the Commission agree he received 12 weeks of weekly EI ERB ($6,000).

[34] I accept what the Appellant’s biweekly reports said about when he worked and his earnings.

[35] Although the employer submitted a record of employment, it shows the Appellant’s income for twice-monthly pay periods.^{Footnote 24} I am not relying on the record of employment for two reasons. First, the Commission didn’t rely on it to decide the Appellant’s eligibility. Second, and more important, I can’t take the earning information from the record and plug it into the EI ERB weeks or the two-week claim periods. The dates don’t line up, at all. And I can’t guess about what income goes in what week.

[36] The table on the next page shows the evidence I have accepted. I used the table to decide the Appellant’s eligibility for each two-week claim period—under the general eligibility test and, if necessary, under the alternative pathway.

[37] I find the Appellant is eligible for 12 weeks ($6,000) in EI ERB. (See the boxes in the chart that have thick borders.) (This is what the Commission paid him.) Here is my explanation:

[38] I find the Appellant is eligible for weeks 1 and  2, and 28 and 29 under the general test.^{Footnote 26} In each two-week period he didn’t work for at least 7-days and had no earnings in that 7-day period. So he was eligible for $2,000 under the general test.

[39] I find the Appellant is eligible for weeks 3 through 8, and 26 and 27 under the alternative pathway. His total earnings for each four-week period I considered are less than $1,000. So he was eligible for $4,000 under the alternative pathway.

[40] I find it’s more likely than not he wasn’t eligible for weeks 9 and 10. The Commission made an error when it paid him for just one week (week 9) in a two-week period. And because the Appellant didn’t file a report for week 10 (May 17 to 23, 2020), I don’t know if he worked and had income in that week.^{Footnote 27} So he hasn’t proven it’s more likely than not he is eligible for weeks 9and 10 under the general test or under the alternative pathway.

Write-off, payment plans, and debt relief

[41] Unfortunately for the Appellant, I have to follow the law.^{Footnote 28} I have no power to make my decision based on fairness, compassion, or financial hardship. The overpayment is a debt the Appellant owes to Employment and Skills Development Canada (ESDC). ESDC is the federal government department that runs the Commission.

[42] The Commission can write off all or part of an overpayment.^{Footnote 29} (The Tribunal doesn’t have the legal power to do that.^{Footnote 30}) So if the Appellant hasn’t already asked the Commission to write off his overpayment, he can do that.

[43] The Canada Revenue Agency (CRA) collects debts for federal government departments, including ESDC. The Appellant can get more information about payment plans and debt relief from the CRA webpage on the collection of EI ERB overpayments (https://www.canada.ca/en/revenue-agency/services/about-canada-revenue-agency-cra/when-you-money-collections-cra/collection-canada-emergency-response-benefit-issued-by-service-canada.html), or by calling toll-free 1-800-864-5823.^{Footnote 31}

Conclusion

[44] The Appellant hasn’t shown he was eligible to keep 3 weeks ($1,500) of the EI ERB advance payment. This is an overpayment he has to pay back.

[45] The Commission paid him the correct amount of weekly EI ERB he was eligible to receive. In other words, this doesn’t change his overpayment balance.

[46] So I am dismissing his appeal.