Difference between revisions of "Reconsideration of Employment Insurance Decisions (8:XII)"

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{{REVIEWED LSLAP | date= August 1, 2023}}
{{LSLAP Manual TOC|expanded = EI}}
{{LSLAP Manual TOC|expanded = EI}}


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.
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:  
The Request for Reconsideration form can be found at the following link: https://catalogue.servicecanada.gc.ca/content/EForms/en/Detail.html?Form=INS5210.


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''' of 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 of charge'''.


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:


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


By mail: http://www.tbs-sct.gc.ca/tbsf-fsct/350-58-eng.asp
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 is the subject of the appeal.


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


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.
== A. What can be Reconsidered (and Later Appealed) ==


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


== A. What can be Reconsidered (and later appealed) ==
* refused EI benefits;
* ordered that EI benefits received be repaid;
* issued a warning letter or notice of violation; and/or
* imposed a penalty.


Most decisions of the Commission may be Reconsidered. For example, claimants are eligible to request a Reconsideration if the original decision: 
== B. What cannot be Reconsidered (and Later Appealed) ==
*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 ===
The following issues cannot be reconsidered:


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:
* certain discretionary benefits, such as training courses, employment (training) benefits, and work-sharing, ''EI Act'' ss. 24, 25, and 64;
*a) ignored or failed to consider a relevant factor, including something the Commission was unaware of, such as health problems or other mitigation;
* insurability issues, which are subject to a separate decision-making and appeal process that must be appealed to the Minister of National Revenue at the Tax Court. (see Section '''[[Qualifying for Employment Insurance (8:III)|III.A: Insurable Employment]]''', and ss. 90–105 of the '''EI Act''');
*b) acted on an irrelevant factor;
* decisions concerning the write-off of debt from overpayment or penalty (''EI Act'', s. 112.1)
*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 [[Qualifying for Employment Insurance (8:III)#A. Insurable Employment | 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 ===
=== 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:
Certain decisions concerning “insurable employment” must be appealed to the CRA or the Minister of National Revenue. These appeals can be found in s. 90(1) of the ''EI Act''.
*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.
For an example of the appeal process, consult [https://www.canlii.org/en/ca/tcc/doc/2005/2005tcc502/2005tcc502.html?resultIndex=1 ''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.
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.

Latest revision as of 19:09, 29 August 2023

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 1, 2023.
LSLAP Manual
LSLAP Manual
This page is from the
Law Students' Legal
Advice Program Manual.
See the full contents.
LSLAP Manual
Introduction
Chapters
8. Employment Insurance
 · I. Introduction

 · II. Governing Legislation and Resources
 · III. Qualifying for EI
 · IV. Types of Benefits
 · V. Benefit Period
 · VI. Quantifying Benefits
 · VII. Benefit Entitlement
 · VIII. Penalties, Violations, and Offences
 · IX. Keeping Out of Trouble
 · X. Timing for Reporting
 · XI. Overpayment and Collections
 · XII. Reconsideration
 · XIII. Social Security Tribunal
 · XIV. Appeals
 · XV. Judicial Review
 · XVI. LSLAP's Use of This Chapter

 · Appendix A: Initial Application Checklist
v • d • e



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: https://catalogue.servicecanada.gc.ca/content/EForms/en/Detail.html?Form=INS5210.

This request must be submitted to Service Canada within 30 days of 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 of charge.

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 is 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.

B. What cannot be Reconsidered (and Later Appealed)

The following issues cannot be reconsidered:

  • certain discretionary benefits, such as training courses, employment (training) benefits, and work-sharing, EI Act ss. 24, 25, and 64;
  • insurability issues, which are subject to a separate decision-making and appeal process that must be appealed to the Minister of National Revenue at 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)

1. Insurability Decisions

Certain decisions concerning “insurable employment” must be appealed to the CRA or the Minister of National Revenue. These appeals can be found in s. 90(1) of the EI Act.

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.


v • d • e
 
Chapters 8-14
Employment Insurance  · Employment Law  · Creditors and Debtors  · Consumer Protection  · Auto Insurance (ICBC)  · Motor Vehicle Law  · Mental Health Law
Chapter Eight:
Employment Insurance
Chapter Nine:
Employment Law
Chapter Ten:
Creditors' Remedies and Debtors' Assistance
Chapter Eleven:
Consumer Protection
Chapter Twelve:
Auto Insurance (ICBC)
Chapter Thirteen:
Motor Vehicle Law
Chapter Fourteen:
Mental Health Law
© Copyright 2023, The Greater Vancouver Law Students' Legal Advice Society.


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