Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

[2] The Appellant received earnings. And the Canada Employment Insurance Commission allocated (in other words, assigned) those earnings to the right weeks. So, an overpayment was created.

Overview

[3] The Appellant made a claim for Employment Insurance (EI) benefits on February 3, 2022. A benefit period was established.

[4] The Appellant worked during the week beginning June 12, 2022. And this was during his benefit period. But he didn’t tell the Commission he worked that week.

[5] The law says that all earnings have to be allocated to certain weeks. What weeks earnings are allocated to depends on why you received the earnings.^{Footnote 1}

[6] The Commission found out he had earnings that week. So, it allocated (or assigned) those earnings to the week they were earned. This resulted in an overpayment of EI benefits.

[7] On August 23, 2023, the Commission told the Appellant he had to pay back the overpayment. The overpayment was $638. And they imposed a penalty of $319 for not reporting that he had earnings in the week of June 12, 2022.

[8] The Appellant filed a request for reconsideration. He told the Commission he didn’t make any false statements about his earnings. And that he has a learning disability and a mental health condition.

[9] The Commission reversed its decision on penalty. The penalty was taken off the Appellant’s record. So, the Appellant doesn’t have to pay the penalty. But the Commission maintained its decision on the overpayment.

[10] The Appellant appealed the reconsideration decision. So, I have to decide if the allocation of earnings that caused the overpayment was correct.

Matter I have to consider first

The Appellant wasn’t at the hearing

[11] The Appellant wasn’t at the hearing. A hearing can go ahead without the Appellant if the Appellant got the notice of hearing.^{Footnote 2}

[12] I am satisfied that the Appellant got notice of the hearing. The case has a long history.

[13] The appeal was first scheduled for hearing on December 7, 2023. The Appellant wasn’t at the hearing. The Tribunal’s help line phoned the Appellant. He joined the teleconference hearing. He told me he didn’t get notice of the hearing.^{Footnote 3}

[14] I said I would reschedule the hearing. The Appellant said he was available on December 18, 2023, at 11:00 am. So, the hearing was rescheduled to that time.

[15] On December 11, 2023, the Appellant asked for the hearing to be rescheduled. He had a death in his family.

[16] Tribunal staff tried to contact the Appellant to talk about rescheduling. But they couldn’t reach him. So, I rescheduled the hearing for January 5, 2024, at 9:30 am. The Tribunal e mailed notice of hearing to the Appellant on December 14, 2023.

[17] The Appellant phoned Tribunal staff on December 22, 2023. He was working. So, he wanted the hearing rescheduled to after January 5, 2024. He would be laid off then.

[18] So, the Tribunal rescheduled the hearing for January 9, 2024. On January 4, 2024, Tribunal staff phoned the Appellant. They reminded the Appellant of the hearing. The Appellant said he would be there. And he confirmed that he had all the file documents the Tribunal had sent to him (specifically, Tribunal files GD1 to GD8).

[19] The Appellant joined the hearing a few minutes late on January 9, 2024. He said he didn’t have GD2, GD3, or GD4. The Tribunal sent those documents to the Appellant right away. And he told me he had them.

[20] The Appellant said he needed time to look at the documents. So, with his agreement, the hearing was rescheduled to January 18, 2024.

[21] During the January 9, 2024, hearing the Appellant wanted to talk about his appeal. He wanted me to look at a separate overpayment for about $5000. I explained that I can only look at the issue raised by the reconsideration request in his notice of appeal. And that is the $638 overpayment, not the bigger overpayment. The Appellant was upset because he wanted to talk about the bigger overpayment too.

[22] I sent a letter to the Appellant explaining all this. And confirming that his appeal remained scheduled for January 18, 2024.

[23] The Appellant contacted the Tribunal on January 11, 2024. He told Tribunal staff he wanted all the Tribunal’s documents sent to him by regular mail. He said he was trying to get information from Service Canada about the bigger overpayment. He said he had a learning disability. He wanted the hearing rescheduled.

[24] The Tribunal rescheduled the hearing for February 6, 2024. I wrote a letter to the Appellant. I asked him to tell the Tribunal if he wanted accommodations of his disability so he could fully participate in the hearing. I said if he wanted an accommodation, he should explain his disability and his request for accommodation. I asked him to let the Tribunal know by January 26, 2024.

[25] The Appellant phoned the Tribunal on January 16, 2024. He told the Tribunal he wanted a hearing in person. He said he thought that would help him with his disability. He didn’t explain his disability or why an in-person hearing would accommodate his disability.

[26] On January 22, 2024, a navigator from the Tribunal spoke to the Appellant. He explained that he could help the Appellant to understand the hearing process. The Appellant said he didn’t want his hearing to be rescheduled. He wanted it cancelled. He told the navigator he wanted to be consulted about a hearing date.

[27] I asked the navigator to tell the Appellant that I could make the hearing easier for him. Like, I could send the Appellant my questions in advance. So, he could look at them and prepare before the hearing.

[28] The navigator tried to speak to the Appellant. He left a message for the Appellant on January 25, 2024, asking the Appellant to call him back.

[29] Tribunal staff spoke to the Appellant. They told him about the February 6, 2024, hearing. The Appellant said he wanted the hearing to be about both of the overpayments. He said he wanted the hearing cancelled.

[30] On February 1, 2024, the navigator tried to speak to the Appellant again. The navigator wanted to give the Appellant some information about the bigger overpayment. Specifically, that the Appellant hadn’t asked for reconsideration of the bigger overpayment. The Appellant didn’t answer his phone.

[31] The navigator left a message for the Appellant that the February 6, 2024, hearing would be rescheduled.

[32] On February 6, 2024, I rescheduled the hearing for March 22, 2024. The Tribunal sent a notice of hearing was sent to the Appellant.

[33] The navigator and the Tribunal tried to reach the Appellant again to discuss his case. But they couldn’t leave messages for him.

[34] The Appellant didn’t appear at the hearing on March 22, 2024.

[35] Tribunal staff tried to contact the Appellant after the hearing started. When they first phoned him, he answered, but there was background noise. So, they couldn’t talk. They tried to call back. He didn’t answer. And they couldn’t leave a message.

The Tribunal does not have jurisdiction to deal with another overpayment

[36] At the hearing on January 9, 2024, the Appellant wanted to talk about the bigger overpayment. I explained that I couldn’t look at that. I can only look at the issues in the Appellant’s request for reconsideration.

[37] The Appellant’s request for reconsideration was about the allocation of earnings during the week of June 12, 2022. It was not about the bigger overpayment.

[38] The Appellant said he wanted to speak to Service Canada about the bigger overpayment.

[39] The navigator tried to phone the Appellant to talk to him about the bigger overpayment.^{Footnote 4} But the Appellant didn’t answer his phone. And he didn’t come to any of the hearings that were scheduled so the Tribunal could talk to him about it.

[40] I can only look at what arises from the reconsideration. So, the only issue that is before me is the allocation of earnings in the week of June 12, 2022.

Issues

[41] I have to decide the following two issues:

• Is the money that the Appellant received earnings?
• If the money is earnings, did the Commission allocate the earnings correctly?

Analysis

Is the money that the Appellant received earnings?

[42] Yes, the $1456 that the Appellant received is earnings. Here are my reasons for deciding that the money is earnings.

[43] The law says that earnings are the entire income that you get from any employment.^{Footnote 5} The law defines both “income” and “employment”.

[44] Income can be anything that you got or will get from an employer or any other person. It doesn’t have to be money, but it often is.^{Footnote 6}

[45] Employment is any work that you did or will do under any kind of service or work agreement.^{Footnote 7}

[46] The Appellant has to prove that the money is not earnings. He has to prove this on a balance of probabilities. This means that he has to show that it is more likely than not that the money isn’t earnings.

[47] The Appellant’s employer provided a record of employment (ROE). The ROE shows he worked from June 13, 2022, to July 22, 2022. And the employer told the Commission the Appellant earned $1456 in the week of June 12, 2022.

[48] The Appellant told Service Canada that if the employer produced the ROE, then it must be correct.^{Footnote 8}

[49] The Appellant thinks the money he was paid that week might be a retroactive CEWS^{Footnote 9} payment. But the employer didn’t pay CEWS to the Appellant.

[50] The Appellant told Service Canada the ROE must be correct. He hasn’t said anything that shows me that he didn’t earn $1456 in the week of June 12, 2022.

[51] I find that the Appellant received earnings of $1456 in the week of June 12, 2022.

Did the Commission allocate the earnings correctly?

[52] The law says that earnings have to be allocated to certain weeks. What weeks earnings are allocated to depend on why you received the earnings.^{Footnote 10}

[53] The Appellant’s earnings are wages. His employer paid him for work he did.

[54] The law says that earnings paid or payable to a claimant for the performance of services must be allocated to the period in which the services were performed.^{Footnote 11}

[55] The ROE shows the Appellant earned $1456 for the first week he worked for the employer – June 12, 2022. The Appellant doesn’t dispute the ROE. And the employer told Service Canada same thing.

[56] He told Service Canada that he might have forgotten to report some earnings because of a mental health condition. And he has a learning disability that makes it difficult for him to understand instructions.

[57] I find that the employer paid the Appellant $1456 for work in the week of June 12, 2022. The Commission properly allocated those earnings to the week of June 12, 2022. This resulted in an overpayment.

Conclusion

[58] The appeal is dismissed.

[59] That means the Appellant has to pay back the overpayment of $638.