Digest of Benefit Entitlement Principles Chapter 18 - Section 4

18.4.4.1 The Legal validation amount

EIA 38(2) limits the maximum penalty that can be assessed against a claimant ^{Footnote 8} and EIA 39(2) ^{Footnote 9} limits maximum penalties for employers based on the number of false statements present on the file. The Commission must observe the boundaries set by law. This boundary is called the legal validation amount. Whether a claimant or employer penalty and whether calculated under 38(2)(a), 38(2)(c) or 39(2), the Commission must count the number of misrepresentations. Once this number is fixed, the maximum penalty, or legal validation amount, for a claimant is either:

• three times the benefit rate; or
• where no claim was established, three times the maximum benefit rate in effect when the misrepresentation occurred.

For an employer, the maximum penalty per false statement, or legal validation amount, is calculated at no more than nine times the maximum benefit rate in effect when the penalty was assessed.

A finding of misrepresentation must always exist before the Commission can assess a penalty; therefore, the first step in adjudicating a penalty is to determine and count each incident of misrepresentation. This count is later used to test the penalty assessed against the legal validation amount.

18.4.4.2 Misrepresentation

A claimant, employer or a third party may be responsible for misrepresentation. Misrepresentation can occur anywhere on the claim file, including, but not limited to:

• the application;
• written submissions;
• in-person or telephone interviews for which there is documentation;
• e-mails or faxes;
• claimant reports;
• sworn statements;
• accepting benefits knowing there is no entitlement; or
• a Record of Employment.

Information may be submitted in either a hard copy or electronic format. It may be communicated orally to a representative of the Commission. Evidence may be direct or indirect.

18.4.4.3 Claimant reports

Misrepresentation often occurs when claimants fail to declare some or all of their earnings on a claimant report ^{Footnote 10} . The claimant report can be submitted electronically or hard copy. One claimant report constitutes one count of false statement, even if the claimant provided more than one piece of inaccurate information on that report.

18.4.4.4 Claimant report: Separation from employment

The electronic claimant report systems (Internet Reporting Service and Telephone Reporting Service) ask about ongoing work when a claimant declares earnings. If a claimant reports earnings, the system asks if the claimant stopped working for an employer during the period of the report. If the claimant answers yes, a second question asks if the claimant stopped working for any reason other than lay-off. If a claimant provides false information in responding to these questions, a misrepresentation occurs.

However, if a claimant does not report earnings, the electronic system does not generate a question asking if the claimant stopped working. A scenario may arise that looks like this:

• Claimant leaves work on Friday, with the intention of continuing in the employment on the following Monday.
• Claimant accurately declares earnings for all weeks on the claimant report and that there is no break in the employment.
• On Monday, the claimant loses the employment without working any more hours.
• When the claimant completes the report at the end of this two week period, the system will not ask if the claimant is still working because the claimant accurately reported no work and no earnings.

In this situation, there is no false statement regarding the separation from employment, because the Commission, represented by the electronic reporting system, did not ask the question. The claimant is advised to report any loss of employment in the preamble to the claimant report. However, a failure to follow general advice or directions is not an act for which a penalty may be imposed under EIA 38(1).

18.4.4.5 Exception reporting (no cards)

Under EIR 26.1, a claimant may request exemption from completing claimant reports every two weeks when in receipt of benefits paid in respect of

• maternity,
• parental,
• compassionate care,
• family caregiver,
• apprenticeship, or
• work-sharing.

This is called exception reporting or the no cards program. Claimants wishing to participate in the no cards program complete a single declaration to cover some or all of the weeks payable. The single declaration includes an agreement that the claimant is not working and will report any work, earnings or any other condition(s) that may affect entitlement. The Regulations ^{Footnote 11} allows a no cards claimant to disclose information affecting entitlement to benefits as late as the end of the exempted period. Claimants wishing to know when the period of exemption reporting has ended, may consult MSCA. No penalty will be imposed on a no cards claimant if new information is submitted or discovered within six weeks of the last payment issued. The Commission will only document the corrections to file and establish an overpayment.

A penalty may be applicable if after the six weeks have elapsed, the Commission becomes aware of any information that was not reported which affects the amount of the warrant received by the claimant. In case where the claimant is exempted from reporting, the Commission may rely on EIA 38(1)(e) in establishing misrepresentation.

EIA 38(1)(e) defines the act of being the payee of a special warrant, knowingly negotiated and to which the claimant was not entitled as an act to which a penalty applies. As such, in cases where the claimant is paid by a paper warrant (cheque), each warrant cashed can be counted as one count of misrepresentation.

[ October 2013 ]

18.4.4.6 Cashing a warrant

Cashing a paper warrant (as opposed to a direct deposit) means that a claimant has negotiated and accepted the payment of Employment Insurance benefits. Under EIA 38(1)(e), the Commission can count every paper warrant that a claimant has accepted as one count of misrepresentation, as long as the facts show that the claimant understood that he or she had no right to receive that payment.

As a result of the Federal Court of Appeal (FCA) decision A-1-09 - Canada v Tamber, EI payments made through direct deposit do not imply the negotiation of warrants, therefore, under the current legislation, the Commission cannot count a direct deposit as one count of misrepresentation.

The one week waiting period cannot be included in this count. EIA 38(1)(e) is specific in its application: a penalty may be imposed for negotiating a warrant (or payment) for benefits to which the claimant knew there was no entitlement. Otherwise, the technical count of misrepresentation can be assessed based on the number of one or two week payments that processed through the computer pay system. Even if there is a single payment issued for multiple weeks, that single payment is an administrative convenience. The entitlement to those moneys is based on one or two week increments.

As an example:

• A claimant renews a claim and declares that a loss of employment did not arise from quitting or dismissal. The claimant is paid based on that false information. If the adjudicator retroactively disqualifies the claim and determines the claimant made the misrepresentation knowing that an accurate statement would prevent payment of benefits, the adjudicator may also conclude that the claimant knew there was no entitlement to the subsequent benefits paid. Therefore, the adjudicator may impose a penalty for every two week paper warrant accepted after the false statement knowingly made.
• Note: The Commission does not impose two penalties when a claimant both submits a claimant report and negotiates/accepts the payment for the same two week period. Although the act of submitting false information and the act of negotiating the payment are two separate acts, they are in respect of the same two week period.

18.4.4.7 Outside of Canada

Absence from Canada automatically disentitles a claimant from benefits ^{Footnote 12} unless the absence and length of that absence meet the exceptions established in EIR 55 (1) ^{Footnote 13} . Claimants who meet the conditions allowed by Regulation must show they remain available for work ^{Footnote 14} , or otherwise available for work when in receipt of sickness benefits ^{Footnote 15} , even though they are outside the country.

To impose a penalty on claimants who do not declare their absence from Canada , there must be a finding of a misrepresentation ^{Footnote 16} . Case law says the Commission bears the responsibility to prove an allegation of misrepresentation, and that the legal test is that, on a balance of probabilities, a false statement was knowingly made.

When claimants complete their bi-weekly electronic reports, they are asked to acknowledge their responsibility to report any absence from Canada . However, the bi-weekly report does not ask claimants if they were outside Canada during the period of their report. In the absence of such a question - and therefore an answer to that question - the Commission cannot conclude that the claimant misrepresented the absence. If a conclusion of misrepresentation rests solely on the absence from Canada, a penalty will not be imposed unless the claimant admits to understanding he or she was not entitled to benefits during this period.

Claimants who declare availability for work on their bi-weekly claimant report during their absence from Canada must prove they were available for work during that period ^{Footnote 17} . The preamble to the claimant report draws a clear relationship between the ideas that being out of Canada means a claimant is not available. Claimants who maintain they remained available during an absence from Canada must prove this availability through an acceptable and credible written job search and evidence of their ability to work in the country in which work was sought, or of their ability to immediately return to Canada to accept an offer of employment.

Similarly, when a claimant is absent from Canada for a reason permitted under EIR 55(1), but was absent for longer than the definite periods allowed under EIR 55(1), availability must be carefully examined to determine if the claimant genuinely meets the requirements of the Act for all days of the absence.

Finally, a determination that the claimant incorrectly declared availability during an absence from Canada does not automatically conclude misrepresentation. If the claimant's explanation for the false statement is credible, it will not meet the condition of knowingly; therefore a penalty shall not be imposed. Strong fact-finding and sound documentation in the final decision must support a finding of misrepresentation. A declaration of availability for which the claimant can provide neither proof nor explanation will be considered a misrepresentation.

18.4.4.8 Records of Employment

A false ROE is a Record of Employment ^{Footnote 18} that should never have been issued because neither insurable hours nor earnings objectively exist. Finding of false ROE exists, but is not limited to situations when:

• the claimant never worked for that employer;
• the employment was not insurable;
• the ROE was issued in collusion with the employee; or
• the ROE was stolen or purchased.

The most important factor is that the ROE is issued in the absence of a genuine employer-employee relationship. To conclude misrepresentation the facts must show that one, or both, of the parties was aware that the ROE should not have been issued.

It is important to examine the facts on a file carefully when adjudicating a false ROE. The claimant, or the employer, may have believed an employment was insurable and that the ROE was correctly issued. Any explanations must be examined for credibility and with consideration for the other facts on the file.

A Record of Employment containing false or misleading information is issued in respect of a legitimate employer-employee relationship. The employee did accumulate insurable hours and earnings, but the ROE contains false or misleading information about that employment. To find misrepresentation, the Commission must be able to reasonably conclude that information was knowingly altered or inaccurately recorded in a manner that provides some greater benefit to the claimant or the employer including, but not limited to:

• a record of extra hours that allows the claimant to establish a claim for benefits;
• a record of extra hours that allows the claimant more weeks of benefits;
• a record of higher earnings that allows the claimant to secure a higher benefit rate;
• an inaccurate record of the reason for separation that prevents a disqualification;
• changes to the ROE by any party that include any of the above; or
• the claimant fails to include information regarding a quit or dismissal upon application for benefit (initial or renewal) and knowingly fails to provide the ROE to the Commission.

To conclude misrepresentation, the evidence must show that one or more of the parties involved was aware the information contained on the Record was false.

In either scenario involving an ROE, responsibility may lie with any or all of the claimant, the employer or a representative; and any or each of these parties may be subject to penalty in a determination of misrepresentation. For the purpose of establishing the legal validation amount, submission of either a False ROE or an ROE Containing False or Misleading Information constitutes one count of a misrepresentation.

18.4.4.9 Totalling the false statements

The general rule in counting false statements is: one document equals one false statement. One document may contain several incidents of misrepresentation, but Commission policy imposes a penalty only once per document. Therefore, regardless of the number of false statements on a document, the evidence need only conclude one of those statements is knowingly made to include that document in calculating the legal validation amount. Once identified, the number of false statements may be set aside until the penalty calculation is complete.