Digest of Benefit Entitlement Principles Chapter 17 - Section 3

17.3.0 Reconsideration (EIA 52 and policy)

Pursuant to section 52 of the EIA, the Commission has sole authority to retroactively reconsider a claim for benefits based on whether the claimant was legally entitled to those benefits. Section 52 of the EIA allows the Commission discretion in deciding whether to reconsider, but is specific in setting limitations.

In the reconsideration process there are four distinct operations that must be completed within the 36/72 month timeframes set out in section 52 of the EIA. If any of the four operations cannot be completed within these timeframes, the Commission cannot reconsider the claim. These four operations are:

  • decide whether or not to exercise its discretion to reconsider (i.e. the information presented warrants reconsideration; reconsideration will result in an overpayment or underpayment; there is enough time to complete the work)
  • make the new decision
  • calculate the amount to be recovered or to be paid, and
  • notify the claimant of the decision

17.3.1 Limitations under EIA 52

Paragraph 52(1) of the EIA allows the Commission to reconsider any claim for benefits within 36 months after the week for which those benefits were or would have been paid.

Paragraph 52(2) of the EIA stipulates the Commission can only reconsider if a person did or did not receive benefits because of an issue relating to qualification or entitlement.

Qualification includes, but is not restricted to:

  • the insured hours needed to establish a claim
  • the insured earnings needed to calculate a benefit rate
  • the presence of an interruption of earnings, and
  • meeting the specific requirements to establish a claim for special benefits

Entitlement includes, but is not restricted to:

  • availability for work
  • correctly declaring work and earnings
  • absence from Canada
  • attending non-referred training, and
  • self-employment

The Commission must calculate any overpayment or underpayment resulting from reconsideration. The Commission must notify the claimant of the reconsideration result.

Paragraph 52(3) of the EIA requires that claimants repay any moneys owing.

Paragraph 52(4) of the EIA requires the Commission pay any benefits that were previously denied but are now payable.

Paragraph 52(5) of the EIA extends the 36 month period to 72 months if the Commission is of the opinion that a false or misleading statement or misrepresentation has been made in connection with the claim.

17.3.2 Policy Retroactive versus current

Sometimes the Commission reconsiders a claim on which benefits have already been paid, but on which future payment is also possible. In this case, reconsideration applies only to the weeks of benefits already paid as these are the only weeks for which a decision was made. No decision has been made with respect to weeks of benefit not yet paid, so those weeks cannot be reconsidered.

This means the Commission will only impose a retroactive decision which results in an overpayment if one of the situations described in the Reconsideration Policy exists (see section 17.3.3 Reconsideration Policy).

The Commission will then make an initial decision (a current decision as opposed to a retroactive decision) with respect to benefits that might be paid in the future. Commission error

A Commission error occurs when the Commission has all the relevant information needed to make a decision but the final decision is not supported by the information. The error can occur in the adjudication process or in failing to enter a decision into the computer system.

If the Commission erred in denying benefits, these benefits will be paid. If the Commission incorrectly paid benefits, the error will be corrected currently and no overpayment will be created. The only exception is when the Commission error resulted in a decision that is contrary to the structure of the EIA , in which case the Commission corrects retroactively, even if an overpayment occurs (see section Contrary to the Structure of the Act).

It is not an error when individuals disagree about the decision. Different people may agree to the same facts or sequence of events and construct different interpretations of those facts. As long as the evidence supports the conclusion, there is no Commission error.

17.3.3 Reconsideration policy

The Commission has developed a policy to ensure a consistent and fair application of section 52 of the EIA and to prevent creating debt when the claimant was overpaid through no fault of their own. A claim will only be reconsidered when:

  • benefits have been underpaid
  • benefits were paid contrary to the structure of the EIA
  • benefits were paid as a result of a false or misleading statement
  • the claimant ought to have known there was no entitlement to the benefits received Underpayment

The Commission always reconsiders if the claimant has been denied benefits that may become payable as the result of reconsideration. Contrary to the structure of the act

Structure of the Act refers to the basic elements required to set up a claim and pay benefits. Basic elements include:

  • an interruption of earnings
  • the date of the interruption of earnings and the start date of the claim
  • the claimant must have worked in insurable employment
  • the claimant must have enough hours of insurable employment to establish a benefit period
  • the claimant must meet the specific criteria to establish a benefit period with fewer than 910 hours of insured employment in the qualifying period
  • the claimant must meet the specific conditions to receive special benefits
  • the claimant must meet the specific conditions to extend the benefit or qualifying period
  • the claimant must have insured earnings with which to calculate a benefit rate
  • the benefit rate must be calculated in accordance with the specific protocol set out in the legislation, including the provisions to extend the calculation period
  • there are errors on a Record of Employment that directly affect the above listed issues
  • the determination of a family supplement rate

Structure of the Act does not include elements such as:

  • the allocation of earnings
  • a period of incarceration
  • a period of absence from Canada
  • a period of self-employment
  • a period of non-availability, or
  • a contentious reason for separation

These elements represent situations that may affect whether benefits can be paid in any given week, but would not prevent the establishment of a benefit period, the determination of the number of weeks of payment or the calculation of a benefit rate. These elements although falling outside the definition of Structure of the Act, can be reconsidered as long as they meet one of the other conditions set out under the policy. Family supplement

Section 16 of the EIA and EI Regulation (EIR) 34 provide for an increased benefit rate for low income claimants who support dependent children. The family supplement is calculated based on tax information and entitlement to the Canada Child Tax Benefit (CCTB).

The result of a determination by Canada Revenue Agency that the CCTB was not payable is that the benefit rate should not have been increased to include the family supplement. An incorrect benefit rate is contrary to the Structure of the Act and must be reconsidered.

By Commission policy, family supplement issues will not be reconsidered beyond 36 months after the benefits have been paid or would have been payable, unless to the benefit of the claimant. False or misleading statement

A false or misleading statement is any information submitted in respect of a claim for benefit that is untrue. A false statement may arise from an intentional, knowing or negligent action or from an honest mistake resulting in the real or possible payment of benefits. The Commission does not have to prove that a claimant made a false or misleading statement, only show that it could reasonably conclude that a false or misleading statement was made in connection with the benefit claimed. Knowledge that there is no entitlement

Knowledge that there is no entitlement means the claimant ought to have known there was no right to the benefits received. The Reconsideration policy does not require rigorous proof in this respect. For example, in a case where a claimant was notified by letter that he was disqualified from receiving regular benefits because he quit employment without just cause. In such a case, if the disqualification was not input into the system resulting in the claimant receiving benefits, it could be sufficient proof for the Commission to conclude that the claimant ought to have known he was not entitled to regular benefits since he was notified of the decision. This could trigger the Commission’s right to reconsider the claim.

[ June 2014 ]

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