Employment Insurance (EI)

Decision

[1] Permission to appeal is refused. The appeal won’t be going ahead.

Overview

[2] The Applicant (Claimant) received $12,233.00 from his former employer.

[3] The Respondent (Commission) decided that the amount was earnings under the law, paid as vacation pay. It allocated the earnings from March 31, 2024, to June 29, 2024, that is, the week the Claimant stopped working, at $969.29 per week. The Claimant disagreed with the reconsideration decision and appealed to the Tribunal’s General Division.

[4] The General Division decided that the money he received was earnings under the law. It decided that the earnings had to be allocated beginning the week of March 31, 2024, which was the week of separation. It found that the Commission correctly allocated the earnings to the weeks from March 31 to July 6, 2024. It found that the Claimant had to pay back the overpaid benefits.

[5] The Claimant is asking the Appeal Division for permission to appeal the General Division’s decision. He says the General Division didn’t consider that his employer never told him that the late payment of his vacation pay would affect his Employment Insurance benefits. He says that if he had known, he would not have allowed his employer to do that and would have asked it to pay his vacation pay in his last pay week before issuing the Record of Employment.

[6] I have to decide whether there is an arguable case that the General Division made a reviewable error based on which the appeal has a reasonable chance of success.

[7] I am refusing permission to appeal because the Claimant hasn’t raised a ground of appeal based on which the appeal has a reasonable chance of success.

Issue

[8] Does the Claimant’s appeal have a reasonable chance of success based on a reviewable error the General Division may have made?

Analysis

The test for permission to appeal

[9] The law specifies the only grounds of appeal of a General Division decision.^{Footnote 1} These reviewable errors are the following:

1. 1. The General Division hearing process wasn’t fair in some way.
2. 2. The General Division didn’t decide an issue it should have decided. Or, it decided something it didn’t have the power to decide.
3. 3. The General Division based its decision on an important error of fact.
4. 4. The General Division made an error of law when making its decision.

[10] An application for permission to appeal is a preliminary step to a hearing on the merits. It is an initial hurdle for the Claimant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the permission to appeal stage, the Claimant doesn’t have to prove his case but must establish that his appeal has a reasonable chance of success. In other words, that there is arguably some reviewable error based on which the appeal might succeed.

[11] I will grant permission to appeal if I am satisfied that at least one of the Claimant’s stated grounds of appeal gives the appeal a reasonable chance of success.

I am not granting the Claimant permission to appeal

[12] The Claimant says the General Division didn’t consider that his employer never told him that the late payment of his vacation pay would affect his Employment Insurance benefits. He says that if he had known, he would not have allowed his employer to do that and would have asked it to pay his vacation pay in his last pay week before issuing the Record of Employment.

[13] As the General Division decided, the money the Claimant received is earnings. There is a sufficient connection between the amount received and the Claimant’s employment. The Federal Court of Appeal has maintained that this type of payment is earnings.^{Footnote 2}

[14] The money the Claimant received had to be allocated under section 36(9) of the Employment Insurance Regulations (EI Regulations) because it was paid or payable by reason of the separation.

[15] The Federal Court of Appeal has reiterated that a payment made under section 36(9) of the EI Regulations covers “any part of the earnings that becomes due and payable at the time of termination of the contract of employment and the commencement of unemployment.”

[16] The Federal Court of Appeal has also determined that the allocation has to be made under section 36(9), regardless of when the earnings are said to be paid or payable.^{Footnote 3}

[17] So, the General Division didn’t make any errors when it found that the earnings received had to be allocated from March 31, 2024, to June 29, 2024, that is, the week the Claimant stopped working, at $969.29 per week.

[18] The Claimant says he should not bear the consequences of not being informed by his employer. He says he would have acted differently had he known the consequences of the delay in paying his vacation pay.

[19] It has been clearly established that a claimant who receives money they are not entitled to is not excused from having to repay it.^{Footnote 4} I also have to reiterate that the Tribunal doesn’t have the authority to compensate for the harm the Claimant alleges to have suffered, even if the Tribunal finds that his employer misinformed him. That is a matter for another forum.^{Footnote 5}

[20] After reviewing the appeal file, the General Division decision, and the arguments supporting the application for permission to appeal, I find that the appeal has no reasonable chance of success. The Claimant hasn’t raised any issue that could justify setting aside the decision under review.

Conclusion

[21] Permission to appeal is refused. The appeal won’t be going ahead.