Archived – Digest of Entitlement Principles Chapter 20 – Write-off – section 20.6 – Relevant write-off situations

20.6.0 Relevant write-off situations

Where the general principles ^{Footnote 1} referred to above are met, an overpayment will be written off in the following situations:

• delay or error made by the Commission;
• retrospective control or review of the claim by the Commission;
• error on the record of employment;
• incorrect calculation by the employer of insurable earnings or hours of employment;
• erroneous insurability of employment or other Activity;
• employment measures ^{Footnote 2} ;
• Canada Revenue Agency or Tax Court of Canada decision.

Each of these situations is discussed briefly in the following sections.

20.6.1 Delay or error made by the Commission

Overpayments that occur when the Commission does not make a decision on a claim within a reasonable period of time may result in a portion of the overpayment being written off.

A Commission error occurs when benefits are wrongly paid or wrongly withheld because the Commission did not Action the claim appropriately ^{Footnote 3} .

What is important is to prevent situations where a claimant ends up paying for operational lapses of the Commission when the situation is beyond his or her control.

20.6.2 Control or review by the Commission

There are various programs and mechanisms implemented by the Investigation and Control Division and other sectors of the Commission which can result in a review and retroactively affect entitlement to benefits ^{Footnote 4} .

Depending on the circumstances, write-off of the overpayment may also be reviewed under other provisions. Thus a claim may be reviewed because an error was discovered on the record of employment, the insurability of the employment was in error, the Commission made an error in processing the claim, etc.

20.6.3 Error on the record of employment

The most common type of errors on records of employment (ROE) ^{Footnote 5} are variances in the reported information, such as the start and end date of employment, amount of insurable earnings, number of insured hours and the correct information found in the employer's records. For example, some of the information on one record of employment may relate to the employment of another employee working for the employer.

Special attention must be given to situations of this type, especially where, for example, owing to the error on the ROE the claimant received a benefit rate almost equivalent to what he or she was earning as an employee. In such situations the question is whether the claimant should reasonably have known that there was an error and that he or she was probably not entitled to the full amount he or she was receiving ^{Footnote 6} .

20.6.4 Incorrect calculation by the employer of earnings or insured hours of employment

An erroneous calculation by the employer of the claimant's insurable earnings or insurable hours ^{Footnote 7} of employment is equally likely to result from ignorance as from negligence by the employer. In practice, it may be that the error is related to the particular way earnings are calculated and paid to the worker, as in the case of real estate agents or some persons engaged in fishing.

20.6.5 Erroneous insurability of employment or other activity

Erroneous insurability of a claimant's employment or other Activity ^{Footnote 8} may result in a cancellation of the benefit period, a reduction in the duration of the benefit period or a change in the weekly rate of benefits. This may lead to an overpayment.

Examples would be a training period without a contract of service or work of a casual nature not related to the employer's business that should not have been insured.

20.6.6 Canada Revenue Agency or Tax Court of Canada decisions

What is meant here are decisions or determinations by Canada Revenue Agency (CRA) or the Tax Court of Canada (TCC) under Part IV of the Employment Insurance Act. These decisions or determinations are on questions of the insurability of employment or its duration or the amount of insurable earnings derived from the employment ^{Footnote 9} .

Once the CRA or TCC decision is made and the overpayment is established, the overpayment may be written off ^{Footnote 10} immediately, even if the benefits were paid only recently.

20.6.7 Employment measures – Section 25 of the Act

The overpayment of benefits paid under employment measures ^{Footnote 11} arising from a retroactive decision made under Part I or Part IV of the Act will be written off ^{Footnote 12} if it does not arise from an error, a false or misleading statement or representation made voluntarily or not by the debtor ^{Footnote 13} .

In summary, Part I of the Act relates to the right to EI benefits (eligibility and entitlement conditions, duration, benefit rate, limitations, reconsideration, etc.). Part IV, titled "Insurable Earnings and Collection of Premiums", deals, as its title indicates, with premiums and coverage to the EI Plan.

When there is a retrospective decision made under Part I or IV of the Act in respect of employment measures ^{Footnote 14} that results in an overpayment, that overpayment is written off immediately, even if the benefits were paid only recently.