Update August 17, 2014
Social Security Tribunal ruling on Bill 29 monies clarifies process for requesting review of outstanding legal issues by individual claimants
The Appeal Division of the Social Security Tribunal has issued a decision that impacts Employment Insurance (EI) claimants who received Bill 29 settlement monies and have been directed to repay EI benefits as a result.
- July 16 decision from the Social Security Tribunal (as amended August 19)
The July 16 decision (amended August 19) does not overturn an earlier ruling by the EI Commission that Bill 29 settlement monies were “earnings” that affected the level of EI benefits that claimants were eligible to receive. That finding was upheld by both a Board of Referees and the Office of the Umpire.
Also, the decision does not overturn an earlier ruling by the Commission that the proper “allocation” of a claimant’s Bill 29 settlement monies is to the weeks beginning with the week that the claimant was laid off because of Bill 29.
For example, if a claimant was laid off because of Bill 29 in November 2003, and as a result she or he collected EI benefits at that time, the claimant’s Bill 29 settlement money would be properly “allocated” to the weeks beginning with the week she or he was laid off in November 2003. Based on this allocation, the EI Commission would decide if the claimant owes an “overpayment.”
The Appeal Division does however provide individual EI claimants the opportunity to request a review of the circumstances of their case if they believe that the Commission made a mistake in determining their overpayment (i.e. incorrect calculations, wrong normal weekly earnings, etc.) or if there are outstanding legal issues to resolve.
The Social Security Tribunal will be providing a copy of the decision to 2,200 claimants who are impacted.
The key elements of the decision are as follows:
- The decision only affects the approximately 2,200 EI claimants who are part of the “representative appeal.”
- A request by a claimant for a new decision on their claim must be made by December 15, 2014.
- Collection proceedings are suspended for all claimants until December 16, 2014, unless a claimant has requested that the Commission review their file, in which case collection proceedings for that claimant are suspended until their request is resolved (as per the August 19 amendment)
- These requests must be made in writing to the Commission and should note that the request is made pursuant to Appeal Division decision 2013-0696 (this decision).
- The request should include the specific arguments for a new decision on repayment of benefits – incorrect calculations, incorrect start date of allocation of earnings, wrong normal weekly earnings, etc.).
- Claimants who are not satisfied with the Commission’s response to their request can appeal the decision under the usual process. However, the Commission’s previous decisions regarding “earnings” and “allocation” are no longer subject to appeal.
This decision is the final stage in the representative appeal process which has taken place over the last five years. Any further requests for a new decision by the Commission and subsequent appeals are solely the responsibility of individual claimants.
If you think the Commission made a mistake, or if you have outstanding legal issues, contact the Commission directly and as soon as possible and ask for a new decision. If you do not receive a timely response to your request you are advised to contact the Commission directly.
The mailing address for the EI Commission for these requests is:
Service Canada Centre
P.O. Box 245
You can also drop your letter by a local Service Canada Centre. You can find the nearest location by checking at http://www.servicecanada.gc.ca/cgi-bin/sc-srch.cgi?app=hme&ln=eng
Please remember to make reference to Appeal Division decision 2013-0696 in your request.
Update April 2, 2013
HEU has carefully reviewed the EI Board of Referees’ February 12, 2013 decision and its implications.
Here’s what the decision means for individuals included in the representative appeal:
- The proper “allocation” of your Bill 29 settlement money is to the weeks beginning with the week that you were laid off because of Bill 29.
For example, if you were laid off because of Bill 29 in November 2003, and as a result you collected EI benefits at that time, your Bill 29 settlement money would be properly “allocated” to the weeks beginning with the week you were laid off in November 2003. Based on this allocation, the EI Commission would decide if you owe an “overpayment.”
- The process of clawing back your EI benefits will now move forward. Based on their allocation of your Bill 29 settlement money, representatives of the EI Commission will attempt to collect the overpayment that they say you owe.
- It is our understanding that you will be issued a new “Notice of Debt,” describing the amount that you owe. You will need to respond to this notice.
- We recommend that you carefully review your Notice of Debt. If it seems like your Bill 29 settlement money was not allocated properly, you can contact the EI Commission to request that your case be reviewed.
For example, if it seems like the Commission allocated your Bill 29 settlement money to a period of unemployment that was not related to Bill 29, you may want to contact the Commission to let them know that they may have made a mistake calculating your overpayment.
- If you believe that your Bill 29 settlement money was not allocated properly, but the Commission disagrees, you may want to request a reconsideration. You should be aware, however, that the February 12 decision actually says that you are not entitled to file any further appeals on the issue of allocation. HEU will be challenging this part of the February 12 decision, through a hearing before the Social Security Tribunal. In the meantime, we suggest that you take the necessary steps to submit your request for reconsideration.
- If your overpayment was calculated correctly on the basis of accurate information, the next step will be repayment – unless you believe that repayment would cause you “undue hardship.”
- If you feel that repayment would cause you personal or financial hardship, you can contact the Commission to ask for a “permanent hardship kit.” We understand that the Canada Revenue Agency (CRA) will send you this kit upon request. You will need to complete and submit the questionnaire in this kit. Based on the information that you submit, the Commission can decide to waive your overpayment (i.e. forgive your debt). Guidelines to help you complete the permanent hardship kit can be found here.
- If your overpayment is not waived by the Commission, you will be faced with the requirement to repay, in which case, you may want to contact the Commission to discuss a repayment plan or schedule.
The Board of Referees has recommended that HEU and BCGEU meet with the EI Commission “to discuss an effective communication process in order to limit the inconvenience and potential hardship” on individuals impacted by the February 12 decision. We hope to be in contact with the Commission in the coming weeks.
More information will be posted as it becomes available.
Update February 22, 2013: The EI Board of Referees has issued its decision on the representative appeal heard on February 12, 2013. The hearing related to clawbacks of EI benefits received by HEU and BCGEU members who were paid compensation under the Bill 29 settlement agreements.
In an earlier decision, issued on March 4, 2010, the Board determined that the Bill 29 payments were “earnings,” and upheld the EI Commission’s decision to claw back EI benefits from members who received the Bill 29 payments. The February 12, 2013 appeal was to address a legal issue that was not resolved in the March 4, 2010 decision, namely, the time period for the "allocating" the Bill 29 payments for the purposes of deciding if there is an overpayment.
The Board has dismissed the unions’ appeal on the allocation issue.
The Board upheld the EI Commission’s allocation of the Bill 29 payments, effectively finding that “overpayments” owed by HEU and BCGEU members must be repaid. The Board noted that the Commission will review individual cases of members who believe that their allocation was incorrect; however, it rejected the unions’ position that members still have the right to appeal to the Board in these situations.
At the February 12, 2013 hearing, the unions made three arguments with respect to the hardship caused by the clawbacks, and the unfairness of the Commission’s process of notifying individuals of their overpayments. The Board did not accept these arguments.
First, the Board refused to require the Commission to investigate and report back on whether it allocated the Bill 29 payments in accordance with the applicable regulations and principles.
Second, although it recognized the hardship caused by Bill 29, the Board chose not to recommend that the Commission waive all members’ overpayments. Instead, the Board recommended that the Commission waive overpayments on a case-by-case basis where members are able to establish that the repayment would cause “undue hardship.”
Third, the Board refused to recommend that the Commission re-issue its overpayment notices and provide members with more time to complete EI report cards. The unions argued that the reissuance of these notices is necessary to ensure that members have a fair and meaningful opportunity to receive their full benefit entitlements and reduce their overpayments. The Board found that the Commission will re-issue its Notices of Debt to members, who may then contact the Commission with new information or to request a review.
HEU is currently reviewing the Board’s decision and its implications.
Please check back for more information to be posted here in the days ahead.
Update February 13, 2013: HEU and BCGEU represented over 2,200 healthcare workers in a hearing before the EI Board of Referees on Tuesday, February 12. The unions continue to challenge the clawbacks of EI benefits received by members who were paid compensation under the Bill 29 settlement agreements.
The hearing was to address a legal issue that was not resolved in last year's Umpire decision, namely, the "allocation" of the Bill 29 payments. The hearing was also an opportunity for the unions to make a number of arguments with respect to the hardship caused by the clawbacks, and the unfairness of the EI Commission's process of notifying individuals of their "overpayments."
A decision from the Board is expected in the near future. Stay tuned.
Update August 16, 2012: The Union is still waiting to hear from Service Canada on how government intends to proceed in relation to individual outstanding balances alleged to be owing from the Bill 29 settlement money.
Please check back here for any updates or call our hotline at 1-800-909-4994.
Update April 24, 2012: Umpire rules on appeal of "overpayment" of EI benefits to Bill 29 claimants
An Umpire has upheld a decision by the Employment Insurance Commission to issue “overpayment” notices to 2,200 EI claimants who received compensation under the Bill 29 settlement agreement.
The ruling was made on an appeal of an earlier decision of the Board of Referees which had in turn upheld the EI Commission’s actions.
The Umpire referred a second issue – the matter of what time frame the compensation payments should be allocated in – to a new Board of Referees. The determination of this issue could affect the amount of money an EI claimant would be required to repay.
HEU is currently reviewing the decision and its implications.
Update December 12, 2011: HEU has been advised by the office of the Umpire that we should expect the decision in the new year.
Update August 26, 2011: On August 24, the Umpire heard a full day of arguments in the appeal of the earlier decision of the Board of Referees on the Bill 29 settlement payments. The Umpire anticipates issuing a decision on the matter between the end of October and mid-December.
Update June 22, 2011: HEU has been advised by the Registrar that the Umpire-level appeal will be heard on August 24, 2011.
Update December 3, 2010: The Canada Revenue Agency (CRA) has been sending out form letters demanding payment and advising interest will be accruing. The unions have confirmed with the EI Commission that no collections will occur until after the Umpire hearing the appeal has issued a decision.
You may want to contact Service Canada Telephone Information Services 1-800-206-7218 to request that collection action on the overpayment be suspended.
No date has been set for the appeal hearing with an Umpire, but is expected to be scheduled early in 2011.
Update October 4, 2010: Service Canada has now confirmed that any new appeals to the Board of Referees where the issue under appeal is identical or similar to the original group appeal will be placed on hold, pending the outcome of the Umpire decision. This will also apply to any new referral to the Umpire.
If you have been recently contacted by Service Canada (EI) advising you of an overpayment due to receiving a Bill 29 Settlement, you will still be required to file an appeal. You should indicate that the reason for the delay in filing is that you have just been notified and therefore you were unable to join the group appeal (Andrea Rachel, et al.). You will then request that your appeal be placed in abeyance (on hold) pending the outcome of the Umpire's decision.
Update September 10, 2010: If you have been required to file an individual appeal with the Board of Referees or a subsequent appeal with the Umpire, you should request that further proceedings on your individual file be put on hold pending the outcome of the unions' group appeal. For more information, please refer to this letter from the unions to Service Canada.
CRA issues hardship kits
In front of the Board of Referees, HEU and BCGEU argued that the money paid to workers as a result of the Bill 29 Settlement Agreement was not employment earnings because it was paid to address serious charter violations by the government's decision to implement Bill 29.
Despite rejecting the appeal, the Board of Referees did urge the EI Commission to exercise its discretion to forgive the overpayments given the undue hardship on the claimants and because to collect would "sully the reputation of the Commission."
The unions sent a letter asking the EI Commission for this consideration. In response, the Commission told the unions that the Canada Revenue Agency (CRA) will make a determination on hardship on a case-by-case basis.
This is why affected workers will receive soon, or have already received, a letter and questionnaire directly from the CRA.
The unions strongly encourage affected workers to complete and return the CRA questionnaire regarding hardship because it is a necessary step toward having any overpayment forgiven.
Members must decide on whether or not to reply to the CRA letter. If they are going to reply, they must do so within 30 days of receiving the CRA letter.
Here are some guidelines to help respond to the CRA letter and questionnaire.
More information will be posted as it becomes available.