Citation: A. D. v. Canada Employment Insurance Commission, 2015 SSTGDEI 177

Date: October 16, 2015

File number: GE-15-1702

GENERAL DIVISION - Employment Insurance Section

Between:

A. D.

Appellant

and

Canada Employment Insurance Commission

Respondent

Decision by: Teresa Jaenen, Member, General Division - Employment Insurance

Section

Heard by Teleconference on September 15, 2015

REASONS AND DECISION

PERSONS IN ATTENDANCE

MS. A. D., the Appellant (Claimant) attended the hearing.

INTRODUCTION

[1] On May 24, 2009 the Claimant made an application for employment insurance benefits.

On January 28, 2015 the Canada Employment Insurance Commission (Commission) allocated

earnings regarding her wrongful dismissal retroactive wages she had received. On February 20,

2015 the Claimant made a request for reconsideration. On April 11, 2015 the Commission

maintained their decision on earnings but overturned the decision on the 72 month limitation

period for reconsideration based that the Claimant had not provided false or misleading

statements and that there is no limitation period at all for reconsideration of earnings paid as the

result of an arbitrated settlement. The Claimant made an appeal to the Social Security Tribunal of

Canada (Tribunal). On September 9, 2015 the Tribunal granted an adjournment at the request of

the Claimant. A new hearing took place on September 15, 2015.

[2] The hearing was held by Teleconference for the following reasons:

a) The complexity of the issue(s) under appeal;

b) The information in the file, including the need for additional information; and

c) The form of hearing respects the requirements under the Social Security Tribunal

Regulations to proceed as informally and quickly as circumstances, fairness and natural

justice permits.

ISSUE

[3] The Tribunal must decide whether the monies the Claimants received constitute earnings

pursuant to section 35 of the Employment Insurance Regulations (Regulations) and if the monies

were allocated in accordance with subsection 36 of the Regulations.

THE LAW

[4] Subsection 35(1) of the Regulations states the definitions in this subsection apply in this

section. "Employment" means

(a) any employment, whether insurable, not insurable or excluded employment, under

any express or implied contract of service or other contract of employment, (i) whether

or not services are or will be provided by a claimant to any other person, an (ii) whether

or not income received by the claimant is from a person other than the person to whom

services are or will be provided;

(b) any self-employment, whether on the claimant's own account or in partnership or co-

adventure;

(c) the tenure of an office as defined in subsection 2(1) of the Canada Pension Plan.

[5] Subsection 35(2) of the Regulations states subject to the other provisions of this section,

the earnings to be taken into account for the purpose of determining whether an interruption of

earnings under section 14 has occurred and the amount to be deducted from benefits payable

under section 19 or subsection 21(3), 22(5), 152.03(3) or 152.04(4) or section 152.18 of the Act,

and for the purposes of sections 45 and 46 of the Act, are the entire income of a claimant arising

out of any employment.

[6] Subsections 36(11) of the Regulations states where earnings are paid or payable in

respect of an employment pursuant to a labour arbitration award or the judgment of a tribunal, or

as settlement of an issue that might otherwise have been determined by a labour arbitration

award or the judgment of a tribunal, and the earnings are awarded in respect of specific weeks as

a result of a finding or admission that disciplinary action was warranted, the earnings shall be

allocated to number of consecutive weeks, beginning with the first week in respect of which the

earnings are awarded, in such a manner that the total earnings of the claimant from that

employment are, in each week except the last week, equal to the claimant's normal weekly

earnings from that employment.

EVIDENCE

[7] Copies of report cards completed by the Claimant for the period beginning June 7, 2009

to August 14, 2010 were submitted (GD3-15 to GD3-158).

[8] On July 8, 2014 the Commission made a request for payroll information to the

Government of Saskatchewan who provided information of the monies the Claimant received

(GD3-159 to GD3-164).

[9] On November 18, 2014 the Commission notified the Claimant requesting in interview

on December 2, 2014 regarding unreported earnings between June 7, 2009 and August 7, 2010

(GD3-165 to GD3-167).

[10] On December 22, 2014 the Claimant attended the interview and stated to the

Commission that she was not in receipt of the monies at the time she was collecting benefits. She

had been terminated on June 5, 2009 and reinstated February 3, 2011. She received retro sum in

late 2011. She was in a legal battle to be reinstated and she didn’t know the money was not paid

back. She stated that it was her understanding the employer was to withhold money to pay the

Federal Government Employment Insurance, Canada Pension Plan, vacation pay and union dues.

And also her lawyer instructed the employer to make sure they pulled back the employment

insurance. She stated she had no problem paying back the money but it was the employer’s

responsibility and they need to be asked why they did not fulfill the responsibility and made it

look like she defrauded the Federal Government (GD3-168 to GD3-170).

[11] The Claimant provided a copy of the CanLll decision in her favor which states on GD-2-

191 paragraph 46(c) pay to the appellant any wages that she would have earned if she had not

been wrongfully discriminated against (GD3-171 to GD3-192).

[12] On January 28, 2015 the Commission notified the Claimant that they had re-examined

her claim and determined she had made false and misleading statements and the period can be

extended to 72 months (GD3-227).

[13] On January 28, 2015 the Commission notified the Claimant that the earnings she

received for wrongful dismissal retroactive wages would be adjusted (GD3-228 to GD3-232).

[14] A notice of debt in the amount of $27267.00 was issued (GD3-233).

[15] On February 20, 2015 the Claimant made a request for reconsideration (GD3-236 to

GD3-238).

[16] On April 7, 2014 the Claimant contacted the Commission and left a message she would

not be available the following Tuesday but any other day she could be reached (GD3-241).

[17] On April 8, 2015 the Commission left a message for the Claimant to call back by Friday,

April 10, 2015 to discuss the request (GD3-242).

[18] On April 11, 2015 the Commission notified the Claimant of the request for

reconsideration request decision (GD3-243 to GD3-244).

[19] In the Notice of Appeal (NOA) the Claimant stated that she had previously been accused

of providing false and misleading statements and then received a letter from Service Canada that

they had erred in accusing her of fraud however maintain that she repay the money. This latest

decision denies her any type of natural justice by failing to inform her of what she has done

wrong and what section of the legislation she has contravened to warrant repayment. She stated

she was wrongfully terminated in June 2009 and that in February 2011 was reinstated in her

position. Her employer was ordered to pay back all wages and benefits that she would have

earned had she been working. She stated that this is not an arbitrated settlement but one that was

a court order by the Chief Justice of Saskatchewan (GD2-4 – GD2-5).

[20] The Claimant stated that it was her understanding and remains so, that legal counsel

instructed the employer to claw back and submit the employment insurance benefits she had

received while she was unlawfully terminated and she had no reason to believe the money had

not been submitted (GD2-5).

[21] The Claimant stated she requested both verbally and in writing, information to the

statute of limitation that Service Canada possesses with respect to benefits that were paid out in

excess of four years prior to the commencement of their investigation of her to which she

received confusing and contradictory information (GD2-6).

[22] The Claimant stated she received a notice stating that she owed $27,267.00 but was not

provided with any explanation of where this figure came from (GD2-7).

[23] The Claimant provided a written copy of her submissions during the hearing (GD7-1 to

GD7-15).

SUBMISSIONS

[24] The Claimant submitted that:

a) The Commission failed to observe several principals of natural justice and acted beyond

their jurisdiction as well as failing to exercise their jurisdiction;

b) The Commission is attempting to enforce beyond their limitation period set out in

section 46.01 and section 52 of the Act and that where there was a serious charge in law

of misrepresentation and fraud was made against her without her having the opportunity

to provide her input;

c) The Commission erred in law in making their decision as (1) they were enforcing law

beyond their mandate and authority; (2) they never considered or placed culpability

where it belongs in this case, with the employer s.46(1); and (3) they have made written

statements about the legislation that are simply not supported by case law of the

legislation itself;

d) She was fired by her employer on June 9, 2009 and reinstated in 2011. She remained

with the employer until 2013 when she left the workplace and it was her opinion that she

was wrongfully terminated again that same year. She stated she wanted outline to the

Tribunal the extent this employer had gone to discredit and retaliate against her:

e) On November 18, 2014 she was notified by Service Canada that an investigation into

allegations by her former employer of unreported work and earnings she was alleged to

have received during the period she was receiving EI benefits, being June 7, 2009 to

August 7, 2010;

f) She doesn’t know how or why she would have become known to Service Canada and

why Service Canada would have requested payroll information from her employer;

g) She finds it interesting to note that she received the document in a very stressful

administrative hearing regarding her second compliant of wrongful dismissal. She stated

too that the interview with Service Canada was set for the same time as the start of her

mid-term exam in her first year of law school. She finds this very suspicious and also

this was this was at the same time the legal counsel for the government requested a copy

of her 2013 Notice of Assessment from the Canada Revenue Agency. She has requested

throughout this process on how Service Canada came to know about her and request

payroll information regarding her and has only been told this is normal procedure. She

has not received a satisfactory answer with respect to her former employer knowingly

making false and misrepresenting allegations about her earnings to Service Canada in

writing. Throughout this process she was accused of fraud and misrepresentation, but

her former employer has not been;

h) She was not aware that her employment insurance benefits she had received had not

been paid back and refers to sections 46(1) and 46(2) of the Act and also to the general

information for employers stating they must reimburse EI before they pay an employee

following a grievance settlement. She notes it states “must” and not “may”;

i) Not only was it the responsibility of my employer to claw back and remit the

overpayment to the Receiver General and they failed to perform their legislative

obligations, but they then knowingly made false allegations to Service Canada about

those same benefits and my receipt of them;

j) In GD3-227 this document found me guilty of “false or misleading statement(s) or

representation”. Two weeks prior to this letter, their investigator, the Integrity Services

officer telephoned me and informed me that she had completed her investigation and

had found I had made no misrepresentations or false statements and would be informing

Service Canada of this;

k) In GD3-227 the benefits at issue were paid to me in June 2009 to August 2010. The first

notification of any issue with the benefits I was paid came in November 2014 with a

Notice of Debt in January of 2015. This letter reports that there is a 36-month limitation

period for review unless the Commission is of the opinion that “inaccurate statements or

false or misleading representations” have been made then the window is extended to 72

months. The third paragraph informs me I am guilty of those false or misleading

statement or representations. I then received a Notice of Debt outlining that I owed two

sums; $ 14,751 and $12,516 a total of $27,267 with no explanation;

l) In April 2015, she received GD3-243 informing her of the results of her appeal and this

correspondence confused her more than the previous confusing correspondence. It

appears two separate issues were decided upon in this letter. With respect to the issue of

earnings; “We regret to inform you that we have not changed our decision regarding this

issue. The decision, as communicated to you on January 28, 2015, is therefore

maintained”. What decision? What was communicated to me about earning on January

28, 2015;

m) In the same letter they address the second issue to the Limitation Period for

Reconsideration (which she had never appealed) stated they had decided in her favor

and the letter she received stating she made inaccurate statements and there was a

limitation period for reconsideration of up to 72 months, was incorrect and should not

have been sent to her. It stated “there were no inaccurate or false statements made by

you and there is no limitation period at all for reconsideration of earnings paid as the

result of an arbitrated settlement. She states there are no sections of the Act cited. She

questions how other than the reversal of the fraud decision this is decision in her favor.

She relies on (Canada (A.G.) v LaForest (1988) A-607-87).

n) In GD4-1 as stated by the Commission, she was not employed from June 7, 2009 to

August 7, 2010 and the fact her employer told the Commission she was is

misrepresentation. As per the 46(1) of the Act and the website with instructions to

employers that they are responsible to deduct and submit the paid EI benefits to

Receiver General before the settlement was given to her;

o) The Commission stated a copy of the settlement was provided and she did not provide a

copy, she provided a copy of the court decision ordering the employer to reinstate her;

p) GD3-241 and GD3-242 the Commission stated the could not reach the Claimant,

however she stated she called back and left a voice message asking to be contacted in

writing as she wanted a permanent record and she did not feel she was being heard or

treated fairly;

q) GD3-4 the Commission stated that she was disputing the Commission’s decision;

specifically that she was not given the opportunity to speak to the allegations against her

only involvement was the receipt of the decision in January 2015. She stated this is true

but is not the substance of her appeal is based on many more grounds than just

procedural unfairness and absence of natural justice. She contests both finding of fact

and law by the Commission;

r) She has never taken the position that the money paid to her in 2011 by her the

Government of Saskatchewan wasn’t wages and it is very clear that what was paid back

to her was “any wages that the worker would have earned if the worker had not been

wrongfully discriminated against”;

s) She questions the Commission authority to investigate the overpayment based on the

clearly set out limitation period as well as their avoidance of the employer’s

responsibilities and obligation pursuant to law in this matter and she respectfully request

the Tribunal find that the Commission exceeded its investigative limitation period of 36

months with respect to the overpayment of benefits to me as confirmed by both the

legislation itself as well as case law;

t) She supports her position citing 46.01 and paragraph 9/13 of the Spring Report of the

Auditor General and a document available on Service Canada entitled Serving

Employment Insurance Appellants – Reconsideration of Claim and Liability of

Overpayment. These documents outline the time limits;

u) The Commission stated “In this case the money paid to the claimant as a result of a

judgment, is considered earnings and has been correctly allocated to the first week

respect of which the earnings are awarded as there are no limitations on the amount of

time in this type of situation.” She stated she can find no legislative authority or case law

for this opinion and the Commission has failed to provide the applicable section and

legislation form which this in an interpretation. She stated that Section 52(1) and (5) are

clear in their wording and unless modified by section 111, are the time limits established

by the law. She cites again Canada (A.G.) v. Laforest, Arsenautl et al. v. Canada (A.G)

and M.R. v. Canada Employment Insurance Commission, 2013 SSTGDEI 4 (CanLll);

v) The Commission on page GD4-6 quotes Section 35(2)(a) of the Regulations as being

authority in the decision made by the Commission. She does not understand what

relevance this would have in her case;

w) If she has misunderstood the limitation period she asks the Tribunal to find the employer

either negligently or intentionally contravened the legislation by failing to fulfill its

legislated duty to hold back and remit paid EI benefits to the Receiver General as per

section 46(1) of the Act;

x) The employer ought to be held responsible for this repayment as they were more than

aware that at the time of their fraudulent and intentional misrepresentation to Service

Canada in July 2014 knew she was not working;

y) She was and remains a full time student and having to repay the money would cause her

severe stress and hardship. She stated she cannot pay the money back without

attempting to get a loan or take money from her RRSP’s;

z) This was not her error it was her former employer’s. She had no idea the money had not

been paid back. The body that did know and she believes “turned her in to Service

Canada” was the body responsible in the federal law to withhold and remit;

aa) As she read in the Employment Insurance Act, she did have an obligation under section

45 of the Act, but she didn’t know of the overpayment so she could not comply, the

employer’s obligation and responsibility under section 46 arises prior to her obligation

and they have the ability to pay. She questions if anyone has asked them why they didn’t

perform their duty;

bb) She asks for the Tribunal to provide assistance with section 56 of the Regulations

specifically 56(1)(e) as the over payment does not arise from her error and that she did

not make false or misleading statements; 56(1)(f) paying back the money more than five

years will cause her family undue and severe hardship; and 56(2) as she satisfies four of

the subsections listed allowing the Commission to write off the overpayment. The whole

portion of the benefits she is purported to owe ended in August 2010 and that far

exceeds 12 months as stated in this section, in fact it exceeds 52 months;

cc) Pursuant to section 112.1 A decision of the Commission made under the Employment

Insurance Regulations respecting the writing off of any penalty owing, amount payable

or interest accrued on any penalty owing or amount payable is not subject to review

under section 112. She cites A-737-82 Canada (A.G.) v. Von Findenigg (1983);

dd) Pursuant to Section 112.1 of the Act, the Commission in her case chose not to make a

decision with respect to the writing off of this overpayment, which was well within their

purview as I fit several of the criteria of sec 56 of the Regulations. I would like to

attempt to argue in law that the lack of a decision is no decision and opens the window

of jurisdiction to the Tribunal to rule on the issue of writing off this overpayment based

on the elements of 56 of the Regulations;

ee) She relies on Canada Employment Insurance Commission v C.L. 2014 SSTAD 130

which states [32] It follows that, even in write-off cases, a decision by the Commission

may be appealed to the Board of Referees, the Umpire and then the Federal Court of

Appeal, in accordance with section 118 of the EIA” *But what if there is never a

decision by the Commission? [34] “to the effect that a decision by the Commission

refusing to write off an overpayment cannot be appealed to the Board of Referees.”:

ff) Unfortunately if the Tribunal is of the opinion, as the very recent case law would

suggest that the Tribunal cannot render a decision on this matter, I respectfully request it

be sent back to the Commission to investigate and provide a decision on write-off for

me; and

gg) She further respectfully request the guidance of the Tribunal to the Commission in this

matter such as was provided in A.D. v Canada Employment Commission, 2014

SSTGDEI 17 (CanLII) at para [34] “The Tribunal finds that the Commission should take

into account this most recent case law and recommends that it write off, under

subsection 56(1), the amount of the overpayment made to the Appellant. If the

Commissions refuse to do so, the Tribunal recommends that the Appellant appeal from

this decision to the Federal Court of Appeal so that it can make a ruling.” Much the

same advice was given from the Tribunal to the Commission in O.B.J. v Canada

Employment Insurance Commission, 2014 SSTGDEI 37 but adding at para [65] “on the

grounds that it causes him undue hardship”.

[25] The Respondent submitted that:

a) The Claimant received monies from the Province of Saskatchewan and the money was

paid to the Claimant as wages;

b) The Commission maintains that this money constitutes earning to pursuant to subsection

35(2)(a) of the Regulations because the payment was made to compensate the Claimant

for wages. Therefore, in accordance with 36(11) of the Regulations the earnings were

allocated to the period for which they are payable; and

c) Sections 45 and 46 of the Act address monies that become payable after an employment

has ended and to not include timeframes. These earnings include, but are not limited to,

payments arising from a labour arbitration award; a court judgment; damages for

wrongful dismissal; proceeds realized from the property of a bankrupt employer; or any

other reason related to an arbitration, judgment or order.

ANALYSIS

[26] The Tribunal must determine, in accordance with section 35(2) of the Regulations if the

monies received for her retroactive wages are earnings and if they were allocated pursuant to

section 36(11) of the Regulations.

[27] Subsection 35(2) of the Regulations sets out those sources of income to be allocated as

earnings in determining whether an interruption of earnings has occurs determines the deductions

to be made from benefits payable and determines the repayment obligations imposed by sections

45 and 46. Subsection 35(7) sets out those sources of income which are exempt from allocations

as earnings in the termination of benefits.

[28] The generic term used to describe income in this context is “earnings” as stated in

section 35(2) of the Regulations. Items that constitute earnings include such sums as severance

pay, vacation pay, pensions, damages for wrongful dismissal and even non-pecuniary benefits.

Sums received by an employer are presumed to be earnings, unless the Claimant can show that

the sums falls within an exception described in subsection 35(7) of the Regulations or that the

sum does not arise from employment.

[29] In this case there is no dispute the Claimants received monies that were wages when she

was reinstated in her employment. The documentary evidence provided by the Claimant along

with her oral evidence substantiates that the Courts required her employer to reinstate the

Claimant to her former employment on the same terms and conditions under which she was

formally employed and pay to the Claimant any wages that she would have earned if she had not

been wrongfully discriminated against (GD3-219).

[30] The Tribunal finds that in accordance to section 35(2) of the Regulations that wages

paid to the Claimant from the employer constitute earnings and must be allocated as per section

36(11) of the Regulations which states where earnings are paid or payable in respect of an

employment pursuant to a labour arbitration award or the judgment of a tribunal, or as settlement

of an issue that might otherwise have been determined by a labour arbitration award or the

judgment of a tribunal, and the earnings are awarded in respect of specific weeks as a result of a

finding or admission that disciplinary action was warranted, the earnings shall be allocated to

number of consecutive weeks, beginning with the first week in respect of which the earnings are

awarded, in such a manner that the total earnings of the claimant from that employment are, in

each week except the last week, equal to the claimant's normal weekly earnings from that

employment.

[31] The Tribunal finds there is no evidence that these monies fall within section 35(7) and

would be exempt from allocation.

[32] In this case the monies are to be allocated to the period beginning the week of June 7,

2009 and ending the week of August 1, 2010.

[33] The Act sets up an insurance scheme under which the benefices are protected against the

loss of income resulting from unemployment. The purpose of the scheme is obviously to

compensate unemployed persons for a loss; it’s not to pay benefits to those who have not

suffered any loss. Therefore, the unemployed person who has been compensated by her former

employer for the loss of her wages cannot be said to have suffered a loss. A loss which has been

compensated no longer exists. Therefore the Act and Regulations must be interpreted so as to

prevent those who have not suffered any loss of income from claiming benefits under the Act

(Canada A.G. v. Walford), A-263-78).

[34] The Claimant does not dispute the fact that she received the monies and that they are

earnings and that they be allocated however she presents several additional arguments that the

Tribunal will address.

[35] The Claimant argues that the Commission erred in law in making their decision as (1)

they were enforcing law beyond their mandate and authority; (2) they never considered or placed

culpability where it belongs in this case, with the employer section 46(1); and (3) they have

made written statements about the legislation that are simply not supported by case law of the

legislation itself.

[36] The Claimant presents the argument that she knew that the employment insurance she

received would have to be repaid but she believed it was the responsibility of the employer to do

so and that she argues the employer had been instructed at the time of the settlement to do so.

[37] The Tribunal finds from her own admission that monies would have to be repaid and

that although she believed her employer had been instructed to repay the employment insurance

on her behalf the Claimant had not provided any documented evidence to support this argument.

The documentary evidence supports that the employer was to reinstate her employment and to

“pay to the appellant any wages that she would have earned if she had not been wrongfully

discriminated against” (GD3-210) it does not state the employer is to repay the monies on the

Claimant’s behalf.

[38] The Tribunal finds from the Claimant’s oral evidence that the monies she received from

the settlement were substantially more than what she had received for employment insurance,

however she believed the employer was to remit the monies and she did not make any contact

with Service Canada to confirm that the monies has been repaid. The Tribunal finds that it would

be reasonable for the Claimant to confirm the monies had been repaid especially when she

admitted she received more money than she had expected.

[39] The Claimant presents the argument that she was not aware that her employment

insurance benefits she had received had not been paid back and refers to sections 46(1) and 46(2)

of the Act and also to the general information for employers stating they must reimburse EI

before they pay an employee following a grievance settlement. She notes it states “must” and not

“may”. She argues that the Commission erred in law in making their decision as they never

considered or placed culpability where it belongs in this case, with the employer.

[40] The Tribunal finds that section 45 of the Act states that if a claimant receives benefits

for a period and, under a labour arbitration award or court judgment, or for any other reason, an

employer, a trustee in bankruptcy or any other person subsequently becomes liable to pay

earnings, including damages for wrongful dismissal or proceeds realized from the property of a

bankrupt, to the claimant for the same period and pays the earnings, the claimant shall pay to the

Receiver General as repayment of an overpayment of benefits an amount equal to the benefits

that would not have been paid if the earnings had been paid or payable at the time the benefits

were paid.

[41] Section 46 of the Act states (1) If under a labour arbitration award or court judgment, or

for any other reason, an employer, a trustee in bankruptcy or any other person becomes liable to

pay earnings including damages for wrongful dismissal or proceeds realized from the property of

a bankrupt, to a claimant for a period and has reason to believe that benefits have been paid to

the claimant for that period, the employer or other person shall ascertain whether an amount

would be repayable under section 45 if the earnings were paid to the claimant and if so shall

deduct the amount from the earnings payable to the claimant and remit it to the Receiver General

as repayment of an overpayment of benefits; (2) If a claimant receives benefits for a period and

under a labour arbitration award or court judgment, or for any other reason, the liability of an

employer to pay the claimant earnings, including damages for wrongful dismissal, for the same

period is or was reduced by the amount of the benefits or by a portion of them, the employer

shall remit the amount or portion to the Receiver General as repayment of an overpayment of

benefits.

[42] The Tribunal finds from the Claimant’s oral evidence that she did receive retroactive

wages beginning June 7, 2009. The Claimant provided oral evidence that she had been in receipt

of employment insurance benefits from June 7, 2009 to August 10, 2010 and that she knew that

the monies she received from employment insurance would need to be repaid. The Tribunal finds

that it is unfortunate that the employer did not deduct the amount of employment insurance to be

repaid however the Tribunal finds by definition section 45 applies only if the employer failed to

fulfill its obligation to ascertain whether an amount would be repayable. Section 45 and section

46 refer to two separate situations and apply to their mutual exclusion, based on the

circumstances, depending on whether or not the compensation paid takes into account the

benefits received by the employee after being dismissed, either the employer or the claimant who

has received money at government expense will have to repay it.

[43] The Tribunal finds there is no evidence to support that the Commission erred in law or

acted outside their jurisdiction and finds the Commission applied the legislation correctly as a

claimant who was wrongfully dismissed and who received benefits in respect of weeks for which

compensation is paid by his or her employer must repay the amount of the benefits received.

This is section 45.

[44] The Tribunal finds an employer who has reason to believe that benefits have been paid

to an employee who was dismissed is required to ascertain from the Commission whether an

amount would be repayable by the employee, before paying compensation to him or her. Where

applicable, the employer must deduct the amount of benefits repayable by the employee from the

compensation and remit that amount to the Receiver General. This is subsection 36(1). However

the Tribunal finds that the Claimant did not provide any documentary evidence that there was a

directive by the Courts for the employer to remit the monies or that the employer had reason to

believe that benefits had been paid to the Claimant.

[45] In this case the Tribunal finds the fact is the Claimant received the monies and that the

employer did not deduct the amount from her settlement and as unfortunate as this is, the monies

must be repaid. Although the Claimant asks the Tribunal to find the employer either negligently

or intentionally contravened the legislation by failing to fulfill its legislated duty to hold back

and remit paid EI benefits to the Receiver General as per section 46(1) of the Act. The issue

before it is the allocation of earnings and must rule on that.

[46] The Tribunal relies on Federal Court decision Lauzon v. Canada 1998 CanLII 8084

FCA where it states:

An employer who fails to ascertain from the Commission whether an amount is payable

and who accordingly does not deduct the amount of benefits which nevertheless were

paid and remit that amount to the Receiver General, in breach of its obligation under

subsection 38(1), becomes liable to pay a penalty which is not specified in the

subsection, but which could very well be repayment of the amounts which the Receiver

General lost due to the employer’s negligence. It is unnecessary, for the purposes of the

instant reasons, to state what the penalty might be. What seems clear to us however,

contrary to the submissions of counsel for the applicant, is that the breach of the

employer’s obligation under section 38(1) to ascertain whether an amount would be

repayable and to deduct the amounts in question, if necessary, does not serve to release

the claimant from his obligation under section 37 to repay what he received.

[47] The Tribunal sympathies with the Claimant in that she believes the employer should be

penalized by an amount equal to the total of the overpayment as it will cause hardship, however

the Tribunal does not have the jurisdiction to do so.

[48] The Claimant presents the argument that in GD3-227 this document found me guilty of

“false or misleading statement(s) or representation”. Two weeks prior to this letter, their

investigator, the Integrity Services officer telephoned me and informed me that she had

completed her investigation and had found I had made no misrepresentations or false statements

and would be informing Service Canada of this

[49] The Tribunal finds that there is sufficient evidence to support that the Commission

determined after having the opportunity to speak with the Claimant that she had not made false

and misleading statements and that there is no issue of misrepresentation to rule on.

[50] The Claimant presents the argument that she questions the Commission authority to

investigate the overpayment based on the clearly set out limitation period as well as their

avoidance of the employer’s responsibilities and obligation pursuant to law in this matter and she

respectfully request the Tribunal find that the Commission exceeded its investigative limitation

period of 36 months with respect to the overpayment of benefits to her as confirmed by both the

legislation itself as well as case law.

[51] The Tribunal finds from the evidence on the file the Commission exercised its authority

to reconsider the claim pursuant to section 52 of the Act.

[52] In reconsideration of claim subsection 52(1) states notwithstanding section 120, but

subject to subsection (5), the Commission may reconsider a claim for benefits within 36 months

after the benefits have been paid or would have been payable. Extended time to reconsider claim

(5) states if, in the opinion of the Commission, a false or misleading statement or representation

has been made in connection with a claim, the Commission has 72 months within which to

reconsider the claim.

[53] As can be seen, section 52 stipulates that the Commission may not reconsider a claim

for paid or payable benefits if more than 36 months have passed since those benefits were paid or

became payable. However section 46, which is more specific and is different in content, creates

an obligation, on the part of an employer or any other person, such as a trustee in bankruptcy,

who is liable to pay earnings, to deduct the amount from the earnings payable to the claimant and

remit it to the Receiver General as repayment of an overpayment of benefits. Section 45, which

goes hand in hand with section 46, creates the obligation on the part of the claimant to repay

overpayments.

[54] Section 47 provides for the mechanism for recovering the amount of the indebtedness

under section 46 as well as a 72‑month limitation period to do so, failing which the recovery is

time‑barred.

[55] The Tribunal relies on the Federal Court’s decision (Chartier v. Canada (Attorney

General), 2010 FCA 150 (CanLII)).

[56] The Claimant cites Federal Court decision (Canada (A.G.) v. Laforest), (Arsenautl et al.

v. Canada (A.G)) and M.R. v. Canada Employment Insurance Commission, 2013 SSTGDEI 4

(CanLll);

[57] The Tribunal finds that although these decisions involve allocation of earnings under

section 36 of the Regulations these decisions do not involve the interpretation and application of

sections 45 and 46.

[58] The Claimant presents the argument that she received her notice of debt and despite her

requests the Commission has failed to provide her with an explanation of the amount owed.

[59] The Tribunal finds from the Claimant’s oral evidence that she did receive monies

employment insurance benefits and that she did in fact receive a T4 however she doesn’t recall

the amount. She also provided oral evidence that her settlement she received was largely in

excess of what she would have received for employment insurance, however she never thought

to examine her T4’s to see what amount she had received from employment insurance.

[60] The Tribunal finds the Commission was under no obligation to prove those amounts. If

those amounts were to be questioned, it was incumbent upon the Claimant to do so by evidence

of erroneous calculations or other errors. The Tribunal finds the Claimant made no such

allegations and provided no such evidence to support the she made a specific request for an

account of the overpayment. The Tribunal would recommend the Commission to provide the

Claimant with a statement to justify the amount of the overpayment (Braga v. Canada (Attorney

General)), 2009 FCA 167 (CanLII).

[61] The Claimant presents the argument that if the Tribunal is of the opinion, as the very

recent case law would suggest that the Tribunal cannot render a decision on this matter, she

respectfully requests it be sent back to the Commission to investigate and provide a decision on

write-off for her.

[62] The Claimant requests the Tribunal direct the Commission to write off the overpayment

as she believes she meets the criteria set out in section 56 of the Regulations specifically 56(1)(e)

as the over payment does not arise from her error and that she did not make false or misleading

statements; 56(1)(f) paying back the money more than five years will cause her family undue and

severe hardship; and 56(2) as she satisfies four of the subsections listed allowing the

Commission to write off the overpayment. The whole portion of the benefits she is purported to

owe ended in August 2010 and that far exceeds 12 months as stated in this section, in fact it

exceeds 52 months.

[63] The Claimant presents the argument that a decision of the Commission made under the

Employment Insurance Regulations respecting the writing off of any penalty owing, amount

payable or interest accrued on any penalty owing or amount payable is not subject to review

under section 112. She argues pursuant to Section 112.1 of the Act, the Commission in her case

chose not to make a decision with respect to the writing off of this overpayment, which was well

within their purview as she fits several of the criteria of section 56 of the Regulations. She argues

that the lack of a decision is no decision and opens the window of jurisdiction to the Tribunal to

rule on the issue of writing off this overpayment based on the elements of 56 of the Regulations.

[64] The Tribunal finds that section 112(1) of the Act states a claimant or other person who is

the subject of a decision of the Commission, or the employer of the claimant may make a request

to the Commission in the prescribed form and manner for reconsideration of that decision at any

time with (a) 30 days after the day on which a decision is communicate to them; or (b) any

further time that the Commission may allow.

[65] The Tribunal finds in pursuant to section 112, it is the claimant who is required to

request a reconsideration of the Commission’s decision, not for the Commission to do so. In this

case the Tribunal does not find there is any evidence to support the Claimant made a request for

reconsideration requesting the debt be written off.

[66] The Tribunal finds that the amount of monies is significant however the Claimant did

not provide any documentary evidence to support the repaying of the debt would incur financial

hardship as she only outlined she feels she meets the criteria set out in Section 56 of the

Regulations. She stated she is a full time student an in order to repay the monies she would have

to withdraw her RRSP’s to do so.

[67] The Tribunal acknowledges the case law the Claimant presents however as in those

cases, the Tribunal could recommend the Commission to do so; however the Tribunal does not

have jurisdiction to write off the overpayment but rather it is the discretion of the Commission to

do so. Even if the Tribunal had the power to review the Commission’s decisions, the write-off

decisions would have to be submitted to the Tribunal. Since a request for write-off was not made,

the Tribunal has no jurisdiction because for the Tribunal to have jurisdiction, a reconsideration

decision would have to be issued by the Commission under section 113 of the Act. The Tribunal

concludes that it does not have the power to decide this issue.

CONCLUSION

[68] The Tribunal finds the monies the Claimant constituted earnings pursuant to section 35

of the Regulations and were correctly allocated pursuant to section 36 of the Regulations.

[69] The appeal is dismissed.

Teresa Jaenen

Member, General Division - Employment Insurance Section