Employment Insurance (EI)

Decision

[1] T. K. is the Appellant in this appeal. I am dismissing her appeal.

[2] The Canada Employment Insurance Commission (Commission) has shown it paid her more Employment Insurance Emergency Response Benefits (EI ERB) than she was eligible for.^{Footnote 1} In other words, she was overpaid.

[3] When the Commission made its decision, the amount of the overpayment was $2,000.^{Footnote 2} This was the amount of the EI ERB advance payment she received but wasn’t eligible to keep.

Overview

[4] The Appellant worked in client services for X (employer). In March 2020, her employer laid her off because of a COVID-19 pandemic shutdown.

[5] On March 31, 2020, she applied for EI regular benefits.^{Footnote 3}

[6] The Commission decided she was eligible for the EI ERB. The Commission paid her an advance payment ($2,000) soon after she applied. Then paid her 10 weeks of EI ERB benefits.

[7] In June 2020 she went back to work.

[8] About two years later, the Commission decided the Appellant wasn’t legally eligible for the EI ERB advance payment. It sent her a decision letter explaining why and a notice of debt for $2,000.

[9] The Appellant disagrees with the Commission. She says she tried to pay back the advance payment right after she got it. But no one would take it. She says the Commission should have deducted it from her first weeks of EI benefits. The Commission’s decision to set up and recover the EI ERB $2,000 overpayment is retaliation.

Issue

[10] I have to decide whether the Appellant has to pay back the EI ERB advance payment ($2,000).

Analysis

[11] Its up to someone who applies for an EI benefit to show they are eligible for that benefit.

[12] In this appeal, the Appellant has to show it’s more likely than not she eligible for the EI ERB for all the weeks she received it. In other words, she has to prove her eligibility on a balance of probabilities.

The EI Emergency Response Benefit (EI ERB)

[13] In response to the COVID-19 pandemic, the federal government made temporary changes to the Employment Insurance Act (EI Act).^{Footnote 4} One change the government made 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 5}
• Any person could apply 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 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 separate 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. Then it paid the Appellant 10 weeks of EI ERB, based on the reports she filed.^{Footnote 12}

[16] The Commission says after 10 weeks the Appellant went back to work and was no longer eligible for the EI ERB.^{Footnote 13} This meant the Commission could not recover the EI ERB advance payment ($2,000) by holding back weekly benefits in weeks 13, 14, 18, and 19.

[17] So the Commission says the advance payment is an overpayment, which she has to pay back.^{Footnote 14}

[18] The Appellant disagrees with the Commission.^{Footnote 15}

[19] She says she met the criteria to get CERB (in other words, the EI ERB). When she got the EI ERB advance payment, she tried to pay it back. But no one would take it. The Commission called her and told her it was switching her from CERB to EI regular benefits. She went back to work at the end of May or in June 2020. But some of her pay was coming from the Canada Emergency Wage Subsidy her employer got. Then she got COVID and could not work.

[20] The Appellant says the Commission should have deducted the EI ERB advance payment from her first weeks of EI benefits. She filed her taxes for 2020 and 2021 and there was nothing about being overpaid the CERB. And it took the Commission almost two years to respond to her reconsideration request.

[21] The Appellant says the Commission’s decision to set up and recover the $2,000 overpayment is retaliation against her. She challenged the Commission’s decision to count her workers’ compensation benefits (reported on her T4E) as income—which led to a $20,500 overpayment. But she asked for a reconsideration. And the Commission reversed its decision. She says because she was successful, the Commission came after the $2,000 overpayment.

[22] Finally, the Appellant says when she called the Canada Revenue Agency (CRA) in April 2023 her account balance was zero. She hasn’t been able to find work since her employer dismissed her in 2021. And she hasn’t been able to get EI benefits because of the debt the Commission and CRA told her she owes. They told her they would take her EI benefits to payoff her debt. She has been spending her savings. The Commission has caused her stress for seven months. She says she is getting screwed over left and right, for being honest and telling the truth. This isn’t fair and she can’t afford to pay back the $2,000.

The Commission’s overpayment decision is correct

[23] Most of the Appellant’s evidence isn’t relevant to a legal issue I have to decide. The Appellant believes the Commission set up the EI ERB overpayment to retaliate against her. I understand the timing of the Commission’s decisions makes this seem true. But even if this is true, I have to decide whether the Commission correctly applied the law about the EI ERB to the Appellant’s claim for EI benefits. I don’t have the legal power to punish the Commission. Or to order it to compensate her for the significant stress she has suffered through.

[24] The Appellant says the Commission switched her to EI regular benefits after it paid her the EI ERB advance payment. The Commission’s evidence says otherwise. I prefer the Commission’s evidence that shows it paid her 10 weeks of EI ERB. The Commission’s evidence is detailed and is taken from her computerized EI case file. I have no reason to doubt it. And other than the Appellant’s memory of a phone conversation in April 2020, there is no evidence that goes against the Commission’s evidence about this.

[25] I accept the Appellant’s evidence about two legal issues I have to decide. I accept that she received the EI ERB advance payment ($2,000). That is what the Commission’s evidence shows. And I accept that she went back to work in May or June 2020. Her testimony about her return to work is supported by the Commission’s evidence. It shows her last EI ERB payment was for the week of June 7, 2020.^{Footnote 16} I have no reason to doubt that.

[26] I have reviewed the Commission’s evidence of the EI ERB it paid to the Appellant. I have also reviewed the Commission’s calculation of the overpayment it says she owes.^{Footnote 17} I have no reason to doubt the Commission’s evidence about these two things. And there is no evidence that goes against it.

[27] So based on the evidence I have accepted, I find:

• The Appellant applied for EI benefits, and soon after the Commission paid her the EI ERB advance payment ($2,000).
• The Appellant proved she was eligible for 10 weeks of the EI ERB ($5,000), which the Commission paid her.
• The Appellant went back to work on June 14, 2020, after 10 weeks on the EI ERB, and wasn’t eligible for any more weeks of EI ERB.^{Footnote 18}
• This meant the Commission could not recover the EI ERB advance payment in weeks 13, 14, 18, and 19.

[28] So I find that the Appellant received four weeks ($2,000) of EI ERB she wasn’t legally eligible for. (This is the EI ERB advance payment.) This became an overpayment she had to pay back.

The Tribunal can’t write off the overpayment

[29] The overpayment is a debt the Appellant owes to Employment and Skills Development Canada (ESDC). ESDC is the federal department responsible for the Commission.

[30] I acknowledge how unfair the overpayment seems to the Appellant. It has caused a lot of financial and mental stress for her. Over the past year, she has spent so much time and energy challenging the Commission decisions.

[31] Unfortunately for the Appellant, I have to follow the law.^{Footnote 19} I have no power to make my decision based on fairness, compassion, or financial hardship.

[32] The Commission can write off all or part of an overpayment.^{Footnote 20} The Tribunal doesn’t have the legal power to do that.^{Footnote 21} So if the Appellant hasn’t already asked the Commission to write off her overpayment, she can do that.

[33] The CRA collects debts for some 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 22}

Conclusion

[34] The Appellant hasn’t shown she was eligible for the $2,000 EI ERB advance payment. So this is an overpayment.

[35] The law says she has to repay that overpayment ($2,000).

[36] So I have to dismiss her appeal.