Employment Insurance (EI)

Decision

[1] The appeal is dismissed, with modification.

[2] The Appellant didn’t receive earnings for pay in lieu of notice.

[3] The Appellant can be paid a maximum of 36 weeks of Employment Insurance (EI) benefits, but she received 39 weeks. Her benefit rate is $661, but she was paid $668 some weeks.

[4] The Appellant’s benefit period begins on March 3, 2024. The Canada Employment Insurance Commission (Commission) shouldn’t have applied an antedate.

Overview

[5] The Appellant lost her job and applied for benefits. The Commission established a benefit period on March 3, 2024, and paid the Appellant a benefit rate of $668 for 31 weeks.

[6] The Appellant’s former employer sent the Commission an amended Record of Employment (ROE), which included an amount of $3,909 for pay in lieu of notice. As a result, the Commission reconsidered the Appellant’s claim, deciding that she received $3,909 in earnings which had to be allocated.

[7] The Appellant denied receiving the earnings. Another amended ROE was sent to the Commission removing the earnings and increasing the total insurable hours. The Commission made further recalculations and various notices of debt were sent to the Appellant.

[8] Ultimately, the Commission decided to antedate the Appellant’s application to February 25, 2024, that the Appellant can be paid a maximum of 36 weeks of EI benefits, and that the benefit rate is $661.

[9] The Appellant disagrees. She says that she should be paid 37 weeks of EI benefits. She says that she regularly contacted the Commission, and she followed its instructions. She can’t afford to repay the overpayment.

Matters I have to consider first

Did the Commission act judicially when it decided to reconsider the claim?

[10] When the Commission decides to reconsider a claim, it has to use its discretion judicially. The Tribunal can set aside a discretionary decision if, for example, an appellant can establish that the Commission:^{Footnote 1}

• acted in bad faith
• acted for an improper purpose or motive
• took into account an irrelevant factor
• ignored a relevant factor
• acted in a discriminatory manner

[11] The Commission usually has 36 months, after benefits have been paid or would have been payable, to reconsider its decision and calculate an overpayment.^{Footnote 2}

[12] The Commission has a reconsideration policy. It says that a claim will only be reconsidered when:^{Footnote 3}

• benefits have been underpaid
• benefits were paid contrary to the structure of the Employment Insurance Act (Act)
• benefits were paid as a result of a false or misleading statement
• the appellant ought to have known there was no entitlement to benefits

[13] The Commission established the Appellant’s claim for EI benefits effective March 3, 2024. It decided that she was entitled to 31 weeks of benefits at a benefit rate of $668 from March 10, 2024, to October 12, 2024, based on an ROE dated March 11, 2024, which listed 1, 631 hours.^{Footnote 4}

[14] The Appellant called the Commission on October 22, 2024, as she disagreed with the hours listed in the ROE.^{Footnote 5}

[15] The employer amended the ROE on October 24, 2024. It listed $3,909 for pay in lieu of notice, and 1, 631 hours.^{Footnote 6}

[16] The Commission reconsidered the Appellant’s claim, based on the amended ROE. It decided she received earnings that should be allocated, in its decision letter dated October 28, 2024, and a notice of debt was issued.^{Footnote 7} It allocated those earnings from March 10, 2024, to April 6, 2024, at the appellant’s normal weekly earnings. And it allowed an extension of her benefit period, from October 13, 2024, to November 9, 2024.^{Footnote 8}

[17] I find that the Commission has shown that it acted judicially when it reconsidered the Appellant’s claim. It reconsidered her claim based on new information found within the amended ROE and its reconsideration policy. Benefits were paid contrary to the structure of the Act, as the errors in the ROE directly affected the extension of her benefit period. There isn’t evidence showing that its decision to reconsider the Appellant’s claim was made in bad faith, with an improper purpose or motive, taking into account an irrelevant factor, ignoring a relevant factor, or acting in a discriminatory manner.

The Tribunal’s ability to consider other issues

[18] The Commission’s initial and reconsideration decision are based solely on earnings. But it also made decisions about the Appellant’s weeks of entitlement and benefit rate.

[19] The Appellant called the Commission on November 6, 2024, as she disagreed with the Commission’s decision about her earnings. She told it that she didn’t receive pay in lieu of notice.^{Footnote 9}

[20] The employer issued another amended ROE on November 7, 2024. It listed her hours of insurable employment at 1, 841 hours, and removed the pay in lieu of notice.^{Footnote 10}

[21] The Appellant requested a reconsideration of the overpayment, on January 28, 2025.^{Footnote 11}

[22] The Commission maintained its decision on the earnings overpayment. But in its submissions, it confirmed that the earnings decision was rescinded, and an overpayment remains, based on recalculations on the Appellant’s weeks of entitlement and benefit rate.^{Footnote 12}

[23] The Tribunal asked the Commission for its submissions on the Appellant’s weeks of entitlement and benefit rate, on April 7, 2025.^{Footnote 13} The Commission provided its submissions on these issues.^{Footnote 14} And the Appellant was given the opportunity to respond to the Commission’s submissions at the hearing.

[24] I’m asserting jurisdiction over the decisions made regarding the Appellant’s weeks of entitlement and benefit rate, as the Tribunal can take a broad approach in its ability to manage appeals fairly and efficiently.^{Footnote 15} The parties were both given the opportunity to present arguments on these issues. So, the Tribunal will also determine the Appellant’s weeks of entitlement and benefit rate.

Issues

[25] Did the Appellant receive earnings? If so, did the Commission allocate the earnings correctly?

[26] How many weeks of benefits is the Appellant entitled to receive?

[27] What is the Appellant’s rate of weekly benefits?

Analysis

Did the Appellant receive earnings?

[28] No, the Appellant didn’t receive earnings for pay in lieu of notice.

[29] The law says that earnings are the entire income that you get from any employment.^{Footnote 16} The law defines both “income” and “employment.”

[30] 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 17} Employment is any work that you did or will do under any kind of service or work agreement.^{Footnote 18}

[31] I find that the Appellant didn’t receive earnings for pay in lieu of notice. As above, the Appellant and Commission agree that the Appellant didn’t receive earnings for pay in lieu of notice. The most recent ROE doesn’t list pay in lieu of notice.

How many weeks of benefits is the Appellant entitled to receive?

The Appellant’s benefit period

[32] Your benefit period is the time when you can receive EI benefits. Once the Commission starts your benefit period, you can claim benefits for a week of unemployment in that time.^{Footnote 19} In general, benefit periods are one year.

[33] The benefit period begins on the Sunday of the later of (a) the week in which the interruption of earnings occurs, and (b) the week in which the initial claim for benefits is made.^{Footnote 20}

[34] An interruption of earnings occurs where (a) an insured person is separated from employment, (b) has a period of seven or more consecutive days where no work is performed for that employer, and (c) in respect of which no earnings arise from that employment, other than those allowed.^{Footnote 21}

[35] If you apply for benefits late, your claim can be antedated. This means that it can be treated as though it was made earlier. To get your application antedated, you have to show that you had good cause for the delay, through the entire period of the delay, and you qualified for benefits on the earlier day.^{Footnote 22}

[36] The Commission decided to antedate the Appellant’s claim, and start her benefit period, on February 25, 2024.

[37] The Appellant applied for benefits on Friday, March 1, 2024.^{Footnote 23}

[38] The Appellant’s last day of work was February 29, 2024. ^{Footnote 24} She didn’t work for seven or more consecutive days after this date. So, she had an interruption of earnings on Sunday, March 3, 2024.

[39] I find that the Appellant’s benefit period starts March 3, 2024, as this is the later date between the week in which the interruption of earnings occurs, and the week in which the initial claim for benefits was made. The Appellant didn’t apply late for benefits. This means that I haven’t antedated the Appellant’s application for benefits.

The Appellant’s qualifying period

[40] In general, the qualifying period is the 52 weeks before your benefit period starts.^{Footnote 25} The Commission decided that the Appellant’s qualifying period was the usual 52 weeks preceding the benefit period, and the Appellant doesn’t dispute this.

[41] I find that the Appellant’s qualifying period is from March 5, 2023, to March 2, 2024. This is the 52 weeks before the start of the benefit period, on March 3, 2024.

Hours of insurable employment

[42] To qualify for EI benefits, you need to have worked enough hours within the qualifying period.”^{Footnote 26}

[43] The Appellant says that she worked 35 hours per week, except she only worked 4 days her last week at work. Using this method, she accumulated 1, 813 hours.^{Footnote 27}

[44] But the ROE shows that she only worked 34.09 hours per week.^{Footnote 28} Using this method, she accumulated 1, 766 hours.^{Footnote 29}

[45] The Commission used a multiplier which shows that she worked a daily average of 4.88 hours. Using this method, the Appellant accumulated 1, 777 hours.^{Footnote 30}

[46] I find that the Appellant and the Commission agree that she worked between 1, 766 to 1, 777 hours in her qualifying period. I rely on the number of insurable hours listed in the ROE.

Regional rate of unemployment

[47] The Commission said the Appellant resides in Kitchener. The regional rate of unemployment at the time was 6.8%.

[48] The Appellant doesn’t dispute the Commission’s decision about her region or the rate of unemployment. The Commission’s decisions are supported by the evidence on file, so I accept that the Appellant lived in the Kitchener economic region and that the unemployment rate in this region at the time she applied was 6.8%.

Maximum number of weeks of benefits

[49] There is a maximum number of weeks of benefits that you can be paid within your benefit period. The law uses a table to set out how many weeks you can get. The number of weeks you can be paid is determined by the number of insurable hours you worked in your qualifying period and the rate of unemployment where you live.^{Footnote 31}

[50] The Appellant says that she should be entitled to 37 weeks. She says that she was told by the Commission’s agent that she should be entitled to 37 weeks.

[51] I find that the Appellant can receive a maximum of 36 weeks of EI benefits. This is based on the 1, 766 to 1, 777 hours she had in her qualifying period and the unemployment rate of less than 7%.

[52] The Appellant is to serve a one-week waiting period the week beginning March 3, 2024. She is entitled to 36 weeks benefits from March 10, 2024, to November 16, 2024.

[53] But she also received benefits for three additional weeks, from November 17, 2024, to December 7, 2024.^{Footnote 32} So, the overpayment should be calculated accordingly.

Maximum number of weeks of benefits

[54] The Commission decided that the Appellant’s benefit rate is $661. The Appellant doesn’t dispute this, so I accept it as fact. She was paid $668 for 35 weeks, so the overpayment should be calculated accordingly.

Can the Tribunal decrease the amount of the overpayment?

[55] No, the Tribunal doesn’t have jurisdiction (the ability to decide) to decrease or write-off the amount of the overpayment.

[56] The Commission made numerous recalculations and issued various notices of debt to the Appellant. It didn’t remove the overpayment that was created based on the earnings, until it realized its error on December 9, 2024, and issued a notice of debt.^{Footnote 33} It didn’t remove the benefit period extension, until it realized its error on January 6, 2025, and issued a notice of debt.^{Footnote 34}

[57] The Appellant says that she regularly contacted the Commission, and she followed its instructions to continue to complete claimant reports. And the Commission agrees that she was told multiple times to just continue to complete claimant reports and the issue would be cleared up.^{Footnote 35}

[58] The Appellant says that she can’t afford to repay the overpayment.

[59] The Federal Court of Appeal said that an appellant who receives an amount without being entitled to it, even as a result of a mistake by the Commission, isn’t excused from repaying the amount.^{Footnote 36}

[60] The Tribunal doesn’t have jurisdiction to decrease or write-off the amount of the overpayment. But the Appellant may pursue other options available, including requesting a write-off of the overpayment from the Commission directly, or negotiating a repayment plan with the Canada Revenue Agency.

Conclusion

[61] The Appellant didn’t receive earnings for pay in lieu of notice.

[62] The Appellant can be paid a maximum of 36 weeks of EI regular benefits, but her application for benefits shouldn’t be antedated. Her benefit rate is $661.

[63] This means that the appeal is dismissed, with modifications.