Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

[2] The Appellant is only entitled to 20 weeks of standard parental benefits. The Appellant received an additional 15 weeks of parental benefits that he was not entitled to receive and this created an overpayment.

[3] The law does not allow me to reverse the Commission’s decision about the weeks of parental benefits or the overpayment.

[4] The Commission acted judicially when it decided to exercise its discretion to reconsider the Appellant’s claim because he had been overpaid parental benefits.

Overview

[5] The Appellant and his spouse selected standard parental benefits and they received a combined total of 55 weeks of benefits.

[6] There is no dispute that the Appellant received 15 weeks more than the maximum number of 40 weeks that is allowed to be shared between spouses. This created an overpayment.

[7] The Commission has the power to reconsider a claim under section 52 and it exercised its discretion judicially in doing so.

[8] The Appellant understands that he received an additional 15 weeks of parental benefits that he was not entitled to receive. However, the Appellant says this was the Commission’s mistake and he should not be held responsible for the resulting overpayment.

[9] For the following reasons, I find the Commission acted judicially when it reconsidered the Appellant’s claim for parental benefits. I also find that the Appellant received 15 more weeks of parental benefits than he was entitled to receive and I have no discretion to write-off the resulting overpayment.

Issues

[10] Did the Commission act judicially when it reconsidered the Appellant’s claim for parental benefits?

[11] Was the Appellant entitled to receive the 35 weeks of standard parental benefits he received?

[12] If not, is he responsible for paying back the benefits he received by mistake?

Analysis

Did the Commission act judicially when it reconsidered the Appellant’s claim for parental benefits?

[13] Section 52 of the Act says that the Commission “may reconsider a claim for benefits” even after benefits have been paid to a person^{Footnote 1}. This means that, even after the Commission pays out benefits, it is legally permitted to re-open that claim and consider whether those benefits should have been paid. The Commission has the authority to do this for any claim regarding benefits that have been paid or should have been paid^{Footnote 2}. However, just because the Commission is allowed to reconsider a claim for benefits does not mean that it should reconsider a claim.

[14] If the Commission decides to reconsider a claim, it must do so within the proper timelines and it must do so judicially (or fairly). This means that the Commission cannot act in bad faith or for an improper purpose, discriminate, consider irrelevant factors or fail to consider relevant factors^{Footnote 3}. The law does not tell the Commission what factors to consider. The Federal Court says the Commission should consider factors that favour finality (claimants should be able to rely on Commission decisions) and accuracy (mistakes and misrepresentations should be corrected). This includes the factors in its reconsideration policy.^{Footnote 4} The Commission should not consider the claimant’s personal factors – such as ability to pay or stress^{Footnote 5}.

[15] Specifically, the Commission may reconsider a claim within 36 months after benefits have been paid^{Footnote 6} or within 72 months if the Commission believes that a false or misleading statement was made in connection with a claim^{Footnote 7}.

[16] When the Commission acts judicially, the Tribunal can not interfere with its decision to reconsider a claim. When the Commission does not act judicially, the Tribunal can decide whether to reconsider a claim.

[17] In the matter before me, there is no dispute that the Commission exercised its discretion to reconsider the Appellant’s claim within the proper timeframe. The Commission’s reconsideration decision was made on May 16, 2024.^{Footnote 8} The parental benefits the Commission looked at were for the period from December 5, 2022, to March 17, 2023^{Footnote 9}, which is within 36 months of the decision to reconsider.

[18] The real issue before me is whether the Commission acted judicially (or fairly) when it decided to reconsider the Appellant’s claim for parental benefits. As noted above, in order to act judicially, the Commission:

• cannot act in bad faith or for an improper purpose or motive;
• cannot consider an irrelevant factor;
• cannot ignore a relevant factor; and
• cannot act in a discriminatory manner^{Footnote 10}.

[19] Because the EI does not specifically say what factors are relevant to the Commission’s exercise of discretion, the Commission has developed an internal policy document which outlines different scenarios when the Commission should reconsider a claim. This policy is designed to ensure that there is consistency within the Commission’s decisions and its decisions are not arbitrary^{Footnote 11}.

[20] The Federal Court in Molchan notes that while the Commission has a reconsideration policy, it is not law^{Footnote 12}. But the Federal Court says that these are relevant factors to weigh when deciding if a claim should be reviewed. The Commission’s internal policy document says that a claim will only be reconsidered when:

• benefits have been underpaid;
• benefits were paid contrary to the structure of the EI Act;
• benefits were paid as a result of a false or misleading statement; or
• the claimant ought to have known there was no entitlement to the benefits received^{Footnote 13}.

[21] For the following reasons, I am not satisfied that the Commission failed to act judicially when it reconsidered the Appellant’s claim for benefits.

[22] At the hearing, I asked the Appellant for his response to whether the Commission acted judicially when it reconsidered his claim for parental benefits. The Appellant provided no information to suggest that the Commission discriminated against him, acted in bad faith or considered any irrelevant factors when it reconsidered his claim. Instead, the Appellant’s primary position is that the Commission mistakenly paid him and his wife too many weeks of shared parental benefits and the Commission should be held responsible for their mistake.

[23] Based on the evidence before me, I am not satisfied that the Commission failed to act judicially when it reconsidered the Appellant’s claim for parental benefits. While I understand the Appellant’s position, and I deeply sympathize with his situation, there is insufficient evidence before me to establish that the Commission failed to act judicially when it reconsidered the Appellant’s claim for parental benefits.

[24] The fact is that the Appellant received 15 weeks of parental benefits that he was not entitled to receive. There is no judgement or discretion used when determining the total number of weeks payable for parental benefits. The EI Act sets out the basic components of a person’s entitlement to benefits. This means the Appellant was paid benefits that were “contrary to the structure of the EI Act^{Footnote 14}” and the Commission’s policy allows the Commission to reconsider the Appellant’s claim for those benefits. Also, the Appellant’s EI application specifically reminds her that, “if parents share the [standard] parental benefits, they can receive up to a combined total of 40 weeks^{Footnote 15}.” This suggests to me that the Appellant “ought to have known there was no entitlement to the benefits^{Footnote 16}” he received and the Commission’s policy allows the Commission to reconsider the Appellant’s claim for those benefits.

[25] For all of these reasons, I am satisfied that the Commission did not act in bad faith or for an improper purpose, discriminate, consider irrelevant factors, or fail to consider relevant factors. It followed its internal policy document, it was justified in reconsidering the Appellant’s claim for benefits and it exercised its discretion judicially in this regard.

Is the Appellant entitled to receive the 35 weeks of standard parental benefits he received?

[26] When a person applies for EI parental benefits, they need to choose between the standard option and the extended option.^{Footnote 17} When parental benefits are shared, both parents are required to make the same choice - either standard or extended. The first parent who completes the EI application binds the other parent to the same option^{Footnote 18}. The maximum number of weeks of shared parental benefits in respect of the same child cannot exceed 40 weeks for standard parental benefits or 69 weeks for extended parental benefits^{Footnote 19}.

[27] There is no dispute that the Appellant’s spouse received 20 weeks of standard parental benefits^{Footnote 20} and the Appellant received 35 weeks of standard parental benefits^{Footnote 21}. The Appellant and his spouse received a combined total of 55 weeks of standard parental benefits.

[28] The EI Act says that, when two major attachment claimants share standard parental benefits, the combined number of weeks of benefits they receive cannot exceed 40 weeks^{Footnote 22}. This means that the Appellant received 15 weeks of benefits that he was not entitled to receive. The Appellant was only entitled to receive 20 weeks of benefits because his spouse received 20 weeks of benefits. As the Appellant actually received 35 weeks of standard parental benefits, this means he received 15 weeks of benefits that he was not entitled to receive.

[29] The Appellant confirmed at the hearing that he understands this and does not dispute that he received 15 weeks of parental benefits that he was not entitled to receive. However, the Appellant says there is a clear explanation for how this happened. The Appellant says that he and his spouse applied to receive 20 weeks each of standard parental benefits^{Footnote 23}. However, once the Appellant and his wife started to receive their benefits, he noticed that his EI benefit rate was significantly higher than his wife’s EI benefit rate. The Appellant says that he and his wife had a discussion and agreed that she would only receive 5 weeks of standard parental benefits which would leave 35 weeks remaining for him to receive. In this way, the Appellant and his wife hoped to increase their monthly income by only receiving EI parental benefits at the higher rate.

[30] The Appellant says that both he and his wife contacted the Commission to inform them of the change to their intentions; the Appellant’s wife called the Commission to reduce her parental benefits to 5 weeks and the Appellant called the Commission to increase his parental benefits to 35 weeks. The Appellant says that, during each phone call, the Commission informed them that this transfer was possible and both he and his wife agreed that this was the best option for their household financial situation.

[31] However, the Appellant says the problem occurred when the Commission failed to adhere to his wife’s instructions. Instead of reducing her parental benefits to 5 weeks, the Commission continued to pay the Appellant’s wife the full 20 weeks she originally requested. This problem was complicated by the fact that the Appellant’s wife failed to notice that she was still receiving parental benefits well after the 5 weeks that she requested. This meant that the Appellant received the 35 weeks he requested and his wife received the 20 weeks she originally requested and the combined total exceeded the 40 week shared maximum.

[32] The Appellant says this entire situation is not his fault and is not his wife’s fault; it is the Commission’s fault for first agreeing to change the weeks of entitlement and failing to properly implement his wife’s request to only receive 5 weeks of parental benefits. For this reason, the Appellant says he should not be held responsible for the Commission’s mistake. In fact, the Appellant says that the overpayment should not result from his 35 weeks of parental benefits, but should actually be the result of his wife’s 20 weeks of parental benefits. The Appellant says that if the Commission chose to reconsider his wife’s claim instead of his claim, the resulting overpayment would have been approximately $4,000.00 less than the overpayment that has resulted from his claim. The Appellant says that neither he nor his wife should be held responsible for the Commission’s mistake in this regard.

[33] Based on the evidence before me, I am not satisfied that the Appellant was entitled to receive the 35 weeks of parental benefits he received. Instead, the Appellant was only entitled to receive 20 weeks of benefits and this means he received 15 weeks of benefits he was not entitled to receive. While I completely understand the Appellant’s position and I sympathize with the difficulties he has experienced, the fact remains that the 35 weeks of benefits he received exceeds the 40 week shared maximum. This explains why the overpayment resulted from his claim, and not from his wife’s claim. The Appellant received 15 weeks of benefits he was not entitled to receive.

Is the Appellant responsible for the overpayment?

[34] There is no dispute that the Appellant received 15 weeks of standard parental benefits that he was not entitled to receive. This resulted in an overpayment of approximately $7,725.00^{Footnote 24}. The Appellant says that paying back this overpayment will worsen the already challenging financial situation that he and his family are experiencing.

[35] The Appellant gave detailed testimony regarding his current financial situation. The Appellant says that he already has significant debts with his bank and he is meeting with his bank shortly to discuss a loan consolidation arrangement. The Appellant says that he is working long hours and is constantly stressed by having to take time off work to attend this hearing and deal with fallout from his claim for EI benefits. The Appellant says that the Commission should provide better training for their staff to recognize problems with parental benefits before they result in the large overpayment that occurred in his situation. The Appellant says he simply does not have the money to repay over $7,000.00 to the Commission and it would cause severe financial difficulties to pay that large amount.

[36] The Appellant gave his testimony on these points in a detailed and consistent manner and I have no reason to disbelieve him. I believe the Appellant when he says that he and his family are currently experiencing financial difficulties. I believe the Appellant when he says that paying back these benefits will create financial difficulty and emotional stress for him and his family.

[37] While I sympathize with the Appellant’s situation, for the reasons already outlined, I am satisfied that the Appellant received 15 weeks of parental benefits that he was not entitled to receive. This means the Appellant is required to pay back the benefits he received by mistake, regardless of any mistakes the Commission may have made along the way. A person who receives EI benefits to which they are not entitled must return the amount wrongly paid^{Footnote 25}.

[38] I would also note that the Tribunal does not have the jurisdiction to write-off an overpayment. This means that the law does not allow me to write-off the overpayment or make any decision which affects the Appellant’s responsibility to repay the benefits he received by mistake.

[39] However, while I do not have jurisdiction to write-off an overpayment, the Appellant may have options in this regard. The Commission has the discretion to write-off overpayments in specific circumstances.^{Footnote 26} The Appellant may decide to request a write-off of his overpayment due to financial hardship. To do this, he may contact his Service Canada office to request a write-off of his overpayment and specifically ask for a “write-off of his overpayment because of financial hardship”.

[40] The Appellant can also contact the Canada Revenue Agency (CRA) to negotiate a repayment option. The CRA would then assess the Appellant’s financial situation and make a recommendation to the Commission’s Chief Financial Officer Branch.

[41] In any case, and for all the reasons already stated, I find that the Appellant received 15 weeks of standard parental benefits that he was not entitled to receive. This created an overpayment and the Appellant is responsible for repaying those benefits. The Appellant received benefits that were “contrary to the structure of the Act” and the Commission was entitled to reconsider the Appellant’s claim pursuant to section 52. For these reasons, I find that the Commission acted judicially when it reconsidered the Appellant’s claim for parental benefits. This means the Appellant’s appeal is dismissed.

Conclusion

[42] The Appellant’s appeal is dismissed.