Archived – Digest of Benefit Entitlement Principles Chapter 20 – Write-off – section 20.1- Introduction
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An overpayment of EI benefits is the result of a review of the entitlement to benefits for a previous period Footnote 1 . Once calculated, the overpayment must be repaid Footnote 2 .
The Act Footnote 3 allows the Commission to make regulations to write off such overpayments in specific circumstances and under specific conditions that are set out by regulation Footnote 4 .
Unless indicated otherwise, this chapter will be concerned only with those overpayments written off under 56(1)(e) and 56(2) of the Regulations.
20.2.0 Legislative intent
The overpayment write-off Footnote 5 is intended to provide an equitable and flexible treatment towards claimants and permit the Commission to write off those overpayments that came about through no fault of the claimant-debtor. Additional provisions provide for the write-off of overpayments in situations where recovery would entail disproportionate costs Footnote 6 , or recovery was uncollectable Footnote 7 , or would be more or less difficult on legal Footnote 8 or humanitarian grounds Footnote 9 .
20.3.0 General principles
The Commission has a discretionary write-off authority Footnote 10 . This discretion must however take into consideration all the pertinent information and be exercised in a judicious manner. Therefore, when all the prescribed conditions are present, the overpayment, in whole or in part, must be written off.
An overpayment may be written off if it did not arise from a false statement or representation made by the debtor or from an error on the part of the debtor Footnote 11 . This is the primary condition.
It is not necessary that the statement or representation be knowingly made as required when considering the imposition of a penalty or that a penalty be imposed. The fact that there is a false or misleading statement or representation, even if made inadvertently or in error, is sufficient to refuse the write-off of the overpayment.
The write-off of overpayments should not apply to situations where the Commission paid benefits in error and the claimant did not take steps to advise the Commission in order to rectify the situation. A claimant has a duty and obligation to come forward in such situations where he or she ought to have known that benefits should not have been paid. The defense that the Commission should not have paid benefits is not valid when a reasonable person should have known or realized that something was amiss.
The common characteristics found in the situations and circumstances are that the claimant cannot be held directly responsible for the events which led to the overpayment, that is, the claimant did not play a role in or have any real control over the events except to request and receive the benefits in good faith.
A debt that has been written off is still owing and can, under certain circumstances, be revived. One such circumstance is when after a write-off, benefits become payable for the same period that the overpayment that had been written off was established.
Whenever there is a decision that has a retroactive effect and which will result in an overpayment of unemployment benefits, the following questions should be asked:
- Did the overpayment result from an error, or a false statement or representation made by the claimant Footnote 12 ?
- In the negative, which of the situations envisioned in the regulation applies Footnote 13 ?
- What portion of the overpayment may be written off Footnote 14 ?
Care must be taken to ensure that the decision to write off or not is made at the time the decision that will cause an overpayment is made. There is no legal authority to repay an overpayment of benefit should it be discovered, after a portion of the overpayment has been repaid, that the write-off provisions would have applied.
20.5.0 Determination of the 12-month period
Under certain circumstances, write-off is limited to that portion of benefits received more than twelve months before the Commission notifies the debtor of the overpayment Footnote 15 . The 12-month period is calculated from the date the claimant is notified of the overpayment in writing.
When a decision is made which results in an overpayment and it has been determined that a portion of the overpayment is to be written off, the period will be calculated on the basis that the overpayment notice will be issued within the two weeks after the decision is made.
This period of two weeks will be to the claimant's advantage, as it will compensate for delays in the issuance of the notice and to facilitate administration of the program. If the claimant subsequently demonstrates that he or she was notified of the overpayment at a later date, the calculation and the amount to be written off will, on request, be adjusted accordingly. However, there will not be a systematic review of claims in terms of increasing or decreasing the amount on the basis of the actual date of notification.
For calculation purposes, the amount to be written off will include prior benefits that were payable, even though their actual issuance was later. This will also be to the claimant's advantage. Limiting the interpretation strictly to when the claimant actually received the benefits could be unfair to claimants who encountered a delay in the issuance of benefits.
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