Reconsideration of Employment Insurance Decisions (8:XII)

Before appealing to the Social Security Tribunal, a claimant must first submit a Request for Reconsideration to the EI Commission within 30 days. Upon receipt of a Request for Reconsideration, a Service Canada employee, other than the one who made the original decision, will review your case, including any new information provided in the Request. The Service Canada employee will also conduct any additional investigation that may be required, including clarifying the circumstances, and obtaining relevant documents related to the employment. The Service Canada employee will use this information to make the EI Commission’s final decision on the claimant’s claim.

The Request for Reconsideration form can be found at the following link:

http://www.servicecanada.gc.ca/eforms/forms/sc-ins5210%282014-04-007%29e.pdf

This request must be submitted to Service Canada within 30 days after the date the decision was communicated to the claimant. If the 30-day period has passed, a claimant may still submit a request for reconsideration with an explanation for the delay. The EI Commission will consider the reasons for the delay and decide whether to allow the request. This process is free.

The Commission will not provide a copy of the claimant’s EI file when a Request for Reconsideration is submitted. Instead, the claimant must make a request for their file under the Privacy Act. This can be done in one of the following ways:

By mail: http://www.tbs-sct.gc.ca/tbsf-fsct/350-58-eng.asp

Online: https://atip-aiprp.apps.gc.ca/atip/welcome.do

Obtaining a copy of the claimant's file may be the only way to see material submitted by the employer, which will be especially important in cases where misconduct or just cause for leaving employment are the subject of the appeal.

The claimant will be informed in writing of the decision following the Reconsideration. If the decision is unfavourable to the claimant, a Service Canada employee will provide a verbal explanation.

A. What can be Reconsidered (and later appealed)

Most decisions of the Commission may be Reconsidered. For example, claimants are eligible to request a Reconsideration if the original decision:

• Refused EI benefits;
• Ordered that EI benefits received be repaid;
• Issued a warning letter or notice of violation; and/or
• Imposed a penalty.

1. Discretionary Decisions

Discretionary decisions such as the Commission’s refusal to extend time, or its decision regarding the length of disqualification, can only be reversed if it is decided that the original decision:

• a) ignored or failed to consider a relevant factor, including something the Commission was unaware of, such as health problems or other mitigation;
• b) acted on an irrelevant factor;
• c) committed a jurisdictional error; or
• d) acted against the principles of natural justice, such as acting with bias or bad faith.

The issue is whether or not the Commission’s exercise of discretion in the original decision was reasonable. However, where the Commission has failed to consider relevant evidence, or where there is new evidence presented for the first time by the claimant, the reviewer can exercise remedial authority by making the decision that should have been made. It is rarely difficult in a deserving case to show that the Commission has disregarded some relevant fact.

2. Amount of Penalty

Courts have also determined that the amount of a penalty for making false statements may also be appealed only to the extent that in coming up with the amount of penalty, the Commission committed an error, such that the decision or the decision making process was unreasonable. That said, as above, one can often find some relevant “fact” that the Commission failed to consider.

Keep in mind that the decision to apply a penalty can always be appealed.

B. What cannot be Reconsidered (and later appealed)

The following issues cannot be Reconsidered:

• certain discretionary benefits, such as training courses, special employment benefits and work-sharing, see above and the EI Act ss 24, 25, and 64; and
• insurability issues, which are subject to a separate decision-making and appeal process that must be appealed to the Minister of National Revenue, the Tax Court. (see Section III.A: Insurable Employment, and ss 90–105 of the EI Act).
• decisions concerning the write-off of debt from overpayment or penalty (EI Act, s 112.1)
• decisions concerning the election between the old and new pilot project formula for earning while on claim (EI Regulations 77.96(8))

1. Insurability Decisions

Certain decisions concerning “insurable employment” must be appealed to the CRA or the Minister of National Revenue. These appeals under s 90(1) include:

• a) whether an employment is insurable;
• b) how long an employment lasts, including the dates on which it begins and ends;
• c) the amount of any insurable earnings;
• d) how many hours an insured person has had in insurable employment;
• e) whether a premium is payable;
• f) the amount of a premium payable;
• g) who is the employer of an insured person;
• h) whether employers are associated employers; and
• i) what amount shall be refunded under ss 96(4) to (10).

For an example of the appeal process, consult McPhee v Minister of National Revenue, 2005 TCC 502. In deciding whether the claimant was an employee or an independent contractor, the court allowed a consideration of the parties’ intentions.

It is crucial to analyze the dispute and file the correct type of appeal. In doubtful cases, it can be wise to do both – file an appeal and ask the CRA for a ruling.

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