Digest of Benefit Entitlement Principles Chapter 17 - Section 5

17.5.0 Return of benefits—EIA 45 and 46

Application of section 45 of the EIA and section 46 of the EIA is not reconsideration or amendment. The principles of Employment Insurance say that a claimant cannot be paid twice for a week of unemployment. Section 45 of the EIA and section 46 of the EIA direct the claimant and the employer or trustee to ascertain if moneys must be repaid, and to pay those amounts. The Commission has no discretionary power and acts in a restricted role, determining the correct amount of money to allocate and calculating the amount that must be repaid.

17.5.1 Limitations under EIA 45 and EIA 46

Section 45 of the EIA and section 46 of the EIA address moneys that become payable after an employment has ended and do not include timeframes. These earnings include, but are not limited to, payments arising from:

  • a labour arbitration award;
  • a court judgement;
  • damages for wrongful dismissal;
  • proceeds realized from the property of a bankrupt employer; or
  • any other reason related to an arbitration, judgement or order.

17.5.2 Application

The claimant (section 45 of the EIA ) or the employer or trustee (section 46 of the EIA ) is obligated to confirm whether a payment compensates a period of time that coincides with weeks for which Employment Insurance benefits were paid. If there is an overlap, the Commission calculates the value of the Employment Insurance benefits affected. This value is an overpayment and the EIA requires the relevant party send that amount to the Receiver General of Canada as a repayment of Employment Insurance benefits.

17.5.3 Claimant

A claimant becomes responsible for this overpayment when the earnings described in section 45 of the EIA are actually paid to that claimant and cover the same period for which Employment Insurance benefits were paid.

17.5.4 Employer or trustee

Although the legislation sets out the claimant’s responsibilities first, the employer or trustee (or their representative) will have first possession of the monies. Therefore, the first obligation to ascertain an overpayment and reimburse the liability falls with the employer, trustee or their representative.

EIA 46(2) includes a provision that if the final payment to the claimant included a deduction to repay all or some Employment Insurance benefits for the claimant, the employer must send that amount to the Receiver General.

17.5.5 Limitations under EIA 46.01

Budget 2021 measures alert – Temporary measures are in place from September 26, 2021 to September 24, 2022 which affects the following information:

  • determining if administrative cost of calculating the overpayment equals or exceeds the amounts to be collected is not required

Section 46.01 of the EIA is a provision that was introduced in the EIA in 2013. This section of the EIA allows the Commission discretion to not create an Employment Insurance overpayment if:

  • more than 36 months have elapsed since the lay-off or separation from the employment in relation to which the earnings are paid; and
  • if the administrative cost of determining the overpayment equals or exceeds the amounts to be collected.

It is important to note that under this provision both conditions (elapsed time and administrative cost) must be satisfied in order for it to be applied.

[ June 2014 ]

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