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EI - Eligibility Determination. Al-Harbawi v. Canada (Attorney General)
In Al-Harbawi v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed a JR from a decision of the EI Appeal Division - Social Security Tribunal, here against an EI overpayment due to a Canada Employment Insurance Commission reconsideration of entitlement after an erroneous - and then corrected - issued ROE.
Here the court also considers first level appeal rights of the Commission:[5] The Appeal Division noted that section 52 of the Employment Insurance Act, S.C. 1996, c. 23, authorizes the Commission, within 36 months after benefits have been paid or would have been payable, to reconsider a claim for benefits. This authority is discretionary, and the Commission’s choice as to whether to reconsider in any particular case "“reflects the tension between finality … and accuracy ….”" In the absence of anything in the Act telling the Commission how to decide whether to reconsider or what factors it should take into account, the Appeal Division stated, "“factors that could favour either finality or accuracy, helping to resolve that tension in a particular case, are relevant factors.”"
[6] The Appeal Division went on to explain why in its view personal circumstances are not relevant when the Commission decides whether to reconsider benefits. It referred to the two ways in which a claimant can avoid repaying benefits: (1) where the Commission decides on reconsideration that there is no overpayment; and (2) after an overpayment is created, through the Commission’s exercise of its discretion to write off the debt granted by section 56 of the Employment Insurance Regulations, S.O.R./96-332. As this Court has pointed out, subparagraph 56(1)(f)(ii) specifically authorizes the Commission to exercise this discretion where "“repayment … would result in undue hardship to the debtor”": Molchan v. Canada (Attorney General), 2024 FCA 46 at para. 55.
[7] The Appeal Division saw this provision as signalling that the right time for the Commission to consider personal circumstances is not when deciding whether to reconsider, but when deciding whether to forgive a debt. It added that on a practical level, the Commission would not ordinarily be in a position to assess a claimant’s personal circumstances at the stage of deciding whether to reconsider.
[8] The Appeal Division, therefore, concluded that the General Division had erred by requiring the Commission to consider irrelevant factors. But it was also sympathetic to Mr. AL-Harbawi’s position, and recommended that Mr. AL-Harbawi be given the opportunity to make out his claim of undue hardship so that the Commission can consider it in deciding whether to write off his debt.
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