Employment Insurance (EI)

Decision

[1] I am granting the Claimant an extension of time to apply to the Appeal Division. However, I am refusing leave (permission) to appeal. The appeal will not proceed.

Overview

[2] N. Z. is the Applicant. I will call her the Claimant because her application concerns her claim for Employment Insurance (EI) benefits. The Claimant collected EI benefits while she was also working as a contract teacher. She declared her regular earnings, but only her net earnings. On October 29, 2021, her employer also deposited a lump sum payment of $1,570.00 to her account. The Respondent, the Canada Employment Insurance Commission (Commission), has no record that she declared it or that she filed claim reports for the two-week period from October 17, 2021, to October 30, 2021. The Commission did not pay her benefits for those two weeks.

[3] The Commission suspected that the Claimant was not reporting her income correctly and asked the employer to provide her weekly gross earnings. When it received the employer’s information, it recalculated the benefits she ought to have received. It discovered that it had overpaid the Claimant. It sent the Claimant a Notice of Debt for $575.00.

[4] The Claimant asked the Commission to reconsider. In making that request, she explained that she had actually received her regular gross pay of $1,119.95 as well as an additional payment of $1,570.00 in the pay period from October 1 to October 15, but had incorrectly declared them in a different two-week benefit period (October 17–24). Her request did not suggest she thought the Commission should have used net earnings instead of her gross earnings.

[5] The Commission changed its decision. It adjusted for gross earnings and reallocated the $1,570.00 to the benefit weeks of October 3–9 and October 10–16. The Claimant disagreed with the Commission’s reallocation and appealed to the General Division of the Social Security Tribunal (Tribunal).

[6] The General Division allowed her appeal in part. It agreed that the Commission had not properly allocated the $1,570.00 payment within her benefit period, but it did accept the allocation suggested by the Claimant. When the Claimant saw how the Commission was implementing the General Division decision, she applied to the Appeal Division for leave to appeal. Her application was late.

[7] I am granting the Claimant an extension of time to appeal, and I have considered her application for leave. I am refusing leave to appeal. The Claimant has not made out an arguable case that the General Division made an important error of fact or an error of law.

Issues

[8] The issues in this appeal are:

1. a) Was the application to the Appeal Division late?
2. b) Should I extend the time for filing the application?
3. c) Is there an arguable case that the General Division made an important error of fact by misunderstanding or overlooking evidence of when the Claimant received or declared her earnings?
4. d) Is there an arguable case that the General Division made an error of law by finding the Commission should have allocated payments from her employer according to when they were earned?

Analysis

[9] In her Notice of Appeal to the General Division, the Claimant authorized the Tribunal to send documents to her by email. The General Division issued its decision on September 13, 2023, and emailed it to the Claimant on September 14, 2023.

[10] In this case, the Claimant says that she received the decision on September 13, 2023. I presume she chose this date because it is the date of the decision. Since the decision was not emailed until the next day, she cannot have received it on September 13, 2023.

[11] Where the Tribunal sends a document to a party by email, its Rules state that it considers the recipient to have received the document on the next business day after the day it was sent.^{Footnote 1} The Rules also allow that a party can show that this rule should not apply to them.^{Footnote 2}

[12] Since I cannot rely on the Claimant’s statement that she received the decision on September 13, 2023, she has not shown that the document delivery rule should not apply. This means that it does apply. The Claimant may be presumed to have received the written decision on the next business day after it was sent. Since the Tribunal sent it on September 14, 2023, she is deemed to have received it on September 15, 2023.

[13] The deadline to appeal a decision of the General Division to the Appeal Division is 30 days from the date it is communicated in writing. The Claimant’s deadline is October 15, 2023.

[14] The Appeal Division did not receive the Claimant’s application until November 24, 2023.

[15] The appeal is late.

I am extending the time for filing the application

[16] When deciding whether to grant an extension of time, I must consider whether the Claimant has a reasonable explanation for why the application is late.^{Footnote 3}

[17] In this case, the General Division decided that the Commission incorrectly reallocated the Claimant’s earnings. It did not say how this affected her weekly benefits or calculate whether this would result in an overpayment.

[18] I can appreciate that the Claimant would have difficulty evaluating whether or not the decision was favourable until the Commission implemented it and notified the Claimant of its decision.

[19] Following the direction of the General Division decision, the Commission issued a new Notice of Debt on November 11, 2023, which was past the deadline for the Claimant to challenge the General Division decision to the Appeal Division. The Notice of Debt required the Claimant to repay a significantly greater amount than the Commission had originally demanded.

[20] I do not know when the Claimant first saw the Notice of Debt, but she filed her application to the Appeal Division within two weeks of when it was issued.

[21] I accept that the Claimant has a reasonable explanation for her late application.

I am not giving the Claimant permission to appeal

General Principles

[22] For the Claimant’s application for leave to appeal to succeed, her reasons for appealing must fit within the “grounds of appeal.” The grounds of appeal identify the kinds of errors that I can consider.

[23] I may consider only the following errors:

1. a) The General Division hearing process was not fair in some way.
2. b) The General Division did not decide an issue that it should have decided. Or, it decided something it did not have the power to decide (error of jurisdiction).
3. c) The General Division based its decision on an important error of fact.
4. d) The General Division made an error of law when making its decision.^{Footnote 4}

[24] To grant this application for leave and permit the appeal process to move forward, I must find that there is a reasonable chance of success on one or more grounds of appeal. Other court decisions have equated a reasonable chance of success to an “arguable case.”^{Footnote 5}

Important error of fact

[25] The Claimant selected the ground of appeal that is concerned with an important error of fact.

[26] The General Division makes an important error of fact when it relies on a finding of fact that either misunderstands or overlooks important evidence or one that does not follow rationally from the evidence.^{Footnote 6}

[27] In this case, the Claimant’s application focuses on her concerns about when she declared or received her income or her benefit payments.

[28] In paragraph 21 of its decision, the General Division notes that the Claimant said she received the $1,570.00 lump sum payment between October 16, 2021, and October 31, 2021. There is no arguable case that the General Division misunderstood when the Claimant received the lump sum payment. The payslip show that it was deposited on October 29, 2021, and this was not in dispute.

[29] The Claimant also emphasized that she declared the $1,570.00 payment for the pay period between October 16,2021, and October 31, 2021. She disagreed with the General Division’s allocation of her earnings in paragraph 27 because she already declared these earnings to the Commission and, as a result, was not paid her regular EI benefit payment for those weeks.

[30] The General Division did not make any finding about when she declared the overpayment or whether (or how much) she received in benefits for any particular week. However, there is no arguable case that this is an important error of fact. Its decision did not rely on when she declared her earnings. It depended only on when the earnings were earned.

Error of law

[31] The Claimant did not frame her ground of appeal in terms of an “error of law.” However, it appears she disagrees with the General Division’s decision on how her earnings should be allocated. If the General Division got this wrong, it would be an error of law.

[32] However, there is no arguable case that the General Division made an error of law. The law that says that a payment is earnings if it is sufficiently connected to the Claimants’ employment. It also says that “earnings payable under a contract of employment for the performance of services shall be allocated to the period in which the services were performed.”^{Footnote 7}

[33] The General Division found as fact that the $1,570.00 was paid by her employer as compensation for the higher student load over the entire period of her contract. The Claimant did not suggest that the General Division was incorrect on those facts.

[34] This means that the $1,570.00 was paid for the performance of services over the entire period of the contract. According to the law, the General Division had no choice but to require that it be divided and allocated to all the weeks of her contract.

[35] The Claimant’s appeal has no reasonable chance of success.

Conclusion

[36] I have granted an extension of time and considered the Claimant’s application for leave to appeal, but I have refused leave. This means the appeal will not proceed.

[37] For the Claimant’s information, the reallocation does not mean that the lump sum will be reallocated without adjusting for the fact that the Claimant did not receive benefits for two weeks. She should expect that the Commission will credit her with some benefit entitlement for the weeks in which it did not pay her benefits, while reducing her entitlement in other weeks.

[38] But how the Commission implements the General Division decision is beyond the scope of this appeal. Since the General Division did not perform a reallocation or recalculate the Claimant’s overpayment, it may be open to the Claimant to request the Commission to reconsider its calculations or the reallocation.