Digest of Benefit Entitlement Principles - Chapter 20

• 20.7.0   More than one reason to write off
  

• 20.8.0   Limitations
• 20.8.1   Return of benefits by the claimant, the employer or other person — EIA 45 and 46
• 20.8.2   Coincidental write-off and benefits payable
  

• 20.9.0   Appraisal of write-off denial
  

20.7.0   More than one reason to write off

Sometimes, more than one write-off provision¹ may be applicable to the same overpayment.

In situations where more than one regulatory provision is met, the issue may be resolved chronologically by determining which would have been first applicable in time. However, where a provision would be more advantageous for the claimant, that provision should be applied.

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1. EIR 56.

20.8.0  Limitations

20.8.1  Return of Benefits by the Claimant, the Employer or Other Person –  Section 45 and Section 46 of the Act

These are overpayments resulting from the payment of remuneration by an employer or another person pursuant to a labour arbitration award, court judgment or otherwise.

Where a debtor must repay an amount because of a return of benefits¹, those overpayments may not be written off simply because the benefits were received more than 12 months before the Commission notified the debtor². However, depending on the circumstances, other write-off provisions may be appropriate.

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1. EIA 45, 46;
2. EIR 56(2).

20.8.2   Coincidental Write-Off and Benefits Payable

Reconsideration¹ of a claim for a past period may result in an overpayment that may be written off. At the same time some benefits may also become payable as a result of the reconsideration. Therefore, in situations where benefits would become payable it is reasonable that the claim first be completed before any write-off of the overpayment is considered. What this means is that the adjudication will establish the amount of the benefits payable, reduce the overpayment accordingly and only then, where the conditions are met, write off any outstanding overpayment balance.

Any extension of the benefit period must be completed prior to the write-off of an overpayment.

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1. EIA 52(1).

20.9.0   Appraisal of write-off denial

The jurisprudence has recognized on numerous occasions that only the Commission has the discretionary power to write off EI overpayments¹. The Federal Court of Appeal confirmed the sole discretionary power of the Commission in matters of write-off of overpayments. This confirmation remained when the Supreme Court refused to grant leave to appeal in the matter.

A debtor, therefore, cannot appeal the Commission's refusal to write off an overpayment. The claimant or his or her representative may, however, request an appraisal of the situation. In such a case, the designated officer to undertake an appraisal will be the one who did not recommend a write-off. If further complaints arise, the situation may be appraised by an officer at a higher level as designated by the local office manager. Further complaints based on the same grounds would be subject to regional or national appraisal.

It must be remembered that an appraisal of the write-off denial is not a review² of the adjudication decision that gave rise to the overpayment.

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1. Jurisprudence Index/reconsideration of claim/overpayment/authority to write off/; S.A. Calder (A-233-79, CUB 5494);
2. EIA 52.