Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

[2] I find that the $12,233.00 that the Appellant received from the employer, the Government of Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail [Quebec’s labour standards commission] – CNESST), as vacation pay is earnings.^{Footnote 1}

[3] This means the amount has to be allocated or deducted from his Employment Insurance (EI) benefits.^{Footnote 2}

[4] The Canada Employment Insurance Commission (Commission) allocated the earnings to the correct weeks of the Appellant’s EI benefit period.^{Footnote 3}

[5] I find that the Commission is justified in asking the Appellant to pay back an amount he owes in overpaid benefits (overpayment).^{Footnote 4}

Overview

[6] From April 29, 2019, to March 31, 2024, inclusive, the Appellant worked for the Government of Quebec (CNESST or employer) and stopped working for it because there was a work shortage.^{Footnote 5}

[7] On April 11, 2024, he made an initial claim for EI benefits (regular benefits).^{Footnote 6} A benefit period was established effective March 31, 2024.^{Footnote 7}

[8] On September 5, 2024, the Commission informed him that the employer paid him $12,233.00^{Footnote 8} as vacation pay. It explained that the amount before deductions was considered earnings and would be allocated against his benefits from March 31, 2024, to June 29, 2024. It told him that if he owed money, he would receive a notice of debt.^{Footnote 9}

[9] On September 7, 2024, Employment and Social Development Canada sent the Appellant a notice of debt indicating a total balance of $7,183.00.^{Footnote 10}

[10] On November 12, 2024, after the Appellant asked for a reconsideration, the Commission told him that it was maintaining its decision of September 5, 2024 (Issue: Earnings – Separation monies).^{Footnote 11}

[11] On December 24, 2024, the Appellant appealed the Commission’s reconsideration decision to the Social Security Tribunal of Canada (Tribunal).^{Footnote 12}

[12] The Appellant says the money the employer paid him as vacation pay isn’t earnings and should not be allocated against his EI benefits. He says his vacation pay is an amount that he accumulated over the years he worked for the employer, and it isn’t for work that he did or for a given employment period. He explains that the employer issued an initial Record of Employment without putting the vacation pay he was entitled to. He says the employer paid his vacation pay several weeks after he stopped working, and then issued another Record of Employment a few months after his employment ended, that time with the amount it had paid him. He explains that this situation meant that the Commission asked him to pay back an amount for overpaid benefits (overpayment) for several benefit weeks. He says that a Commission representative explained to him that if the employer had paid his vacation pay with his last week of pay, before issuing the Record of Employment, there would have been no benefit overpayment. He says he disagrees that he should have to pay back the amount the Commission says he owes for overpaid benefits (overpayment). He is asking for the resulting debt to be written off.

Issues

[13] I have to decide whether the $12,233.00^{Footnote 13} that the Appellant received from the employer is earnings^{Footnote 14} and, if the answer is yes, whether those earnings were allocated correctly.^{Footnote 15} I have to answer the following questions:

• Is the amount the Appellant received from the employer earnings?
• If the answer is yes, did the Commission allocate those earnings correctly?

[14] I also have to decide whether the Commission is justified in asking the Appellant to pay back the money he was overpaid in benefits.^{Footnote 16}

Analysis

[15] Section 35 of the Employment Insurance Regulations (Regulations) defines income and employment, and specifies what types of income must be considered earnings. Section 36 sets out how earnings are to be allocated or deducted from a claimant’s EI benefits.

[16] Earnings are the claimant’s entire income arising out of any employment.^{Footnote 17} An amount received won’t be considered earnings if it falls within the exceptions set out in the Regulations^{Footnote 18} or if it doesn’t arise out of employment.

[17] Income can be anything that a person has received or will receive from an employer or another person. It isn’t necessarily money, but that is often the case.^{Footnote 19} Employment is any work that a person has done or will do under a contract of employment or service.^Footnote 20

[18] The Act says that all earnings have to be allocated.^{Footnote 21} The weeks to which earnings are allocated depend on why the person received the earnings.^{Footnote 22}

[19] The claimant has to show that the money they received or are entitled to isn’t earnings. They have to show this on a balance of probabilities. This means they have to prove that it is more likely than not that the amount in question isn’t earnings.

Issue 1: Is the money the Appellant received from the employer earnings?

[20] I find that the $12,233.00 that the Appellant received from the employer as vacation pay is earnings.^{Footnote 23} It is money that was paid to him in return for work he completed. It is income that was owed to him after he worked for the employer.

[21] The Federal Court of Appeal (Court) has established that an amount of money will be considered earnings if it is obtained through or in return for work, or if there is a “sufficient connection” between the claimant’s employment and the amount received.^{Footnote 24}

[22] The evidence on file shows that the Appellant received $12,233.00 ($12,232.64) from the employer as vacation pay.^{Footnote 25}

[23] The Appellant says he was paid the money several weeks after his employment ended.^{Footnote 26}

[24] He says the money should not be considered earnings by the Commission.

[25] He says his vacation pay is money that he accumulated over all his years of service for the employer.

[26] He says his vacation pay isn’t money for work he completed. He says if that were the case, he would not dispute that the money was earnings.

[27] According to him, if the money is considered earnings, he is penalized because it reduces the amount he was paid in benefits.

[28] I don’t accept the Appellant’s argument that his vacation pay of $12,333.00 [sic]should not be considered earnings.

[29] I find that this amount is earnings because it is part of his entire income arising out of his employment, as the Regulations say.^{Footnote 27}

[30] The vacation pay is connected to the Appellant’s employment for the employer, in return for the work he did.^{Footnote 28}

[31] Also, the money doesn’t fall within the exceptions in the Regulations that would allow it not to be considered earnings.^{Footnote 29}

Issue 2: Did the Commission allocate the earnings correctly?

[32] I find that the $12,233.00 that the Appellant received from the employer was correctly allocated under the Regulations, as it is earnings.^{Footnote 30}

[33] The Act says that earnings have to be allocated to certain weeks. The weeks to which earnings are allocated depend on why the person received the earnings.

[34] The Regulations say that earnings paid or payable to a claimant by reason of a lay-off or separation have to be allocated to a number of weeks that begins with the week of the lay-off or separation.^{Footnote 31}

[35] The Court has determined that amounts that are earnings under section 35 of the Regulations are to be allocated under section 36 of the Regulations.^{Footnote 32}

[36] The Court tells us that amounts paid on separation that are earnings within the meaning of section 35 of the Regulations have to be allocated under section 36(9) of the Regulations.^{Footnote 33}

[37] The Court also tells us that the entire income of a claimant arising out of any employment has to be considered in calculating the amount to be deducted from benefits.^{Footnote 34}

[38] The Appellant says the money he received as vacation pay should not be allocated against his EI benefits because it isn’t earnings.

[39] He also says that because his employer paid his vacation pay several weeks after his employment ended, after issuing a first Record of Employment that didn’t indicate that amount,^{Footnote 35} the allocation of his vacation pay resulted in a benefit overpayment.^{Footnote 36}

[40] The Commission says vacation pay was paid because of the Appellant’s separation.^{Footnote 37}

[41] It says this means the Appellant’s vacation pay was allocated based on his normal weekly earnings, which were $969.29, as of March 31, 2024.^{Footnote 38}

[42] It says that after determining that vacation pay is paid or payable by reason of a separation, that money is allocated based on the normal weekly earnings to consecutive weeks beginning the first week of the separation.^{Footnote 39}

[43] It says that this is why the Appellant’s vacation pay was allocated as of the week beginning March 31, 2024, not the date the vacation pay was paid.^{Footnote 40}

[44] I find that the $12,233.00 has to be allocated under section 36(9) of the Regulations because it is earnings that the Appellant was paid by reason of a lay-off or separation.^{Footnote 41}

[45] That section says earnings have to be allocated to a number of weeks that begins with the week of the separation, regardless of when the earnings are said to be paid or payable.^{Footnote 42}

[46] This means the Appellant’s earnings have to be allocated to a number of weeks that begins with the week of the separation, in other words, to a number of weeks beginning March 31, 2024.

[47] I find that the Commission correctly determined when the allocation of the Appellant’s earnings was established, that is, effective the week beginning March 31, 2024, under the provisions of the Regulations.

[48] In summary, I find that Commission correctly allocated the $12,233.00 in earnings that the Appellant received as vacation pay.^{Footnote 43}

Repayment of overpaid benefits

[49] I find that the Commission is justified in asking the Appellant to repay the amount he was overpaid in benefits.^{Footnote 44}

[50] If a person received EI benefits they weren’t entitled to or were disqualified from, they have to repay those benefits or the resulting overpayment.^{Footnote 45}

[51] The Commission has 36 months to reconsider any claim for benefits paid or payable to a claimant. That period is 72 months if the Commission is of the opinion that a false or misleading statement or representation has been made in connection with a claim.^{Footnote 46}

[52] The Commission may write off an amount owing under specific conditions.^{Footnote 47} Write-off means cancelling or waiving a debt or an amount owing (for example, an overpayment).

[53] The Appellant’s testimony and statements indicate the following:

1. a) He is asking the Commission to write off the debt it says he owes for overpaid benefits.^{Footnote 48}
2. b) He explains that he received his vacation pay several weeks after his employment ended. The employer didn’t put the vacation pay amount on the first Record of Employment it issued,^{Footnote 49} but rather on another Record of Employment it issued several months after his employment ended (amended or replaced Record of Employment).^{Footnote 50}
3. c) A benefit overpayment resulted from the second Record of Employment issued by the employer (amended or replaced Record of Employment).^{Footnote 51}
4. d) He says a Commission representative explained to him that if the employer had paid his vacation pay on his last pay, before issuing his first Record of Employment, he would not have to pay back money for overpaid benefits.^{Footnote 52}
5. e) He says the employer never gave him that information and, if it had, he would have asked it to pay him his vacation pay before issuing the Record of Employment. If it had done that, he would not have been penalized on his benefit amount. He says he never consented to the employer paying his vacation pay after his employment ended.^{Footnote 53}
6. f) The employer didn’t tell him that paying his vacation pay after his employment ended would affect the amount of benefits he would be paid, or that the Commission would ask him to repay a debt for overpaid benefits.^{Footnote 54}
7. g) He says he was penalized because the employer paid his vacation pay several weeks after his employment ended, but he didn’t consent to this.
8. h) He says it isn’t his fault that the employer took time before paying him. He says if the employer had issued a Record of Employment [translation] “in order” from the beginning, he would not have been overpaid benefits.^{Footnote 55}
9. i) He says he didn’t know that receiving his vacation pay several weeks after his employment ended would affect his benefit payments. The EI site doesn’t explain this. He says this is the first time he has applied for benefits. He doesn’t know all the specifics of the Act.^{Footnote 56}
10. j) He explains that if he had been told when his benefit period began that his benefit payment would be delayed because of his vacation pay, he would have preferred that and accepted the “frustration.” He says if that had been the case, he would not have had a debt for overpaid benefits.
11. k) He finds it [translation] “unfair and frustrating” that he has to repay money that he owes for overpaid benefits because he did nothing against the Act. He says he didn’t “hide” information from the Commission and “did nothing wrong.”

[54] The Commission says it is true that the Appellant would not have had debt if the employer had paid his vacation pay on his last pay before issuing his Record of Employment, but in that case, he would not have begun receiving benefits until the week beginning July 7, 2024.^{Footnote 57}

[55] It says that after recalculating, it is asking the Appellant to repay the benefits he received from March 31, 2024, to July 6, 2024.^{Footnote 58}

[56] It says that ultimately, the amount the Appellant received in benefits would not have changed if they had been paid effective July 7, 2024.^{Footnote 59}

[57] It says it allocated the Appellant’s vacation pay as it should have been done from the beginning, if the employer had issued the correct Record of Employment right away, including the separation monies.^{Footnote 60}

[58] Although the Appellant disagrees about having to pay back the money he owes for overpaid benefits, he still has to pay it back. It is an overpayment that has to be repaid.

[59] The Court tells us that the overpayment amount specified in a notice of debt becomes repayable on the notification date and that a person who is overpaid benefits has to repay the amount without delay.^{Footnote 61}

[60] Although the Appellant is asking that the amount he was overpaid in benefits be written off, I note that the Tribunal doesn’t have the authority to decide on writing off an overpayment.^{Footnote 62}

[61] The Appellant’s situation can’t exempt him from having to pay back the amount he was overpaid in benefits that he isn’t entitled to.

[62] While I am sympathetic to the Appellant’s situation, the Court tells us that adjudicators, including the Tribunal, can’t rewrite the law or interpret it in a way that is contrary to its plain meaning.^{Footnote 63}

[63] I find that the Commission is justified in asking the Appellant to pay back the overpayment. It is up to the Commission to determine how that amount is to be repaid.

Conclusion

[64] I find that the $12,233.00 that the Appellant received as vacation pay is earnings that have to be allocated or deducted from his benefits. The Commission correctly allocated those earnings to the weeks from March 31, 2024, to July 6, 2024.

[65] The Commission is justified in asking the Appellant to pay back the amount it overpaid him in benefits.

[66] This means the appeal is dismissed.