Digest of Benefit Entitlement Principles - Chapter 17

RECONSIDERATION, AMENDMENT OF A DECISION, AND ERROR CORRECTION

17.1.0    INTRODUCTION

17.1.1    Reconsideration of a Claim—EIA 52
17.1.2    Amendment of a Decision—EIA 120
17.1.3    Policy

17.1.0    INTRODUCTION

For many years the term reconsideration has been synonymous with respect to two sections of the EI Act or the former UI Act, when in fact only one relates specifically to reconsideration¹, the other² applies to the action taken against a decision either by rescinding or amending it in specific circumstances only. Also involved in the issues of reconsideration and amendment of a decision is empowerment and the question of when, and under what section of the Act it is used. In the context of reconsideration, empowerment delegates an authority previously held at the regional office level to the agents, and allows agents to reconsider a decision impacted by external considerations.

This policy is intended to clarify when a claim or a decision on a claim is reconsidered³ and when a decision is to be amended or recinded⁴ and to provide an explanation of when agents are empowered to change a decision.

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1. EIA 52;
2. EIA 120;
3. EIA 52;
4. EIA 120.

17.1.1    Reconsideration of a Claim–Section 52

Notwithstanding section 120, but subject to subsection (5), the Commission may reconsider a claim for benefits within 36 months after the benefits have been paid or would have been payable.¹

Reconsideration is the means by which the EI Act recognizes and responds to the fact that it may become necessary to amend or correct retroactively a claim or a decision on a claim, so as to ensure claimants receive only those benefits to which they are legally entitled.²

The Commission and only the Commission, has the authority to reconsider any claim or any decision that it has made with respect to a claim for benefit, should it choose to do so.³ In other words, the Commission has the sole discretionary authority to reconsider any claim or any decision on a claim. The primary legislated restrictions in the reconsideration of a claim are the time frames within which it may be applied, and that the application must result in an overpayment or underpayment; however reconsideration⁴ is restricted by policy as detailed in this chapter.

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1. EIA 52(1);
2. see 17.3.0, "A Reconsideration of a Claim—Section 52";
3. EIA 52;
4. EIA 52.

17.1.2    Amendment of a Decision–Section 120

The Commission, a board of referees or the umpire may rescind or amend a decision given in any particular claim for benefit if new facts are presented or if it is satisfied that the decision was given without knowledge of, or was based on a mistake as to, some material fact.¹

The provision provides the authority for the Commission, a Board of Referees or the Umpire to review a decision with the possibility of rescinding or amending it. However a decision can only be amended under this provision on the presentation of new facts, or on being satisfied that the decision was given without knowledge of, or was based on a mistake as to a material fact.²

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1. EIA 120;
2. EIA 120; see 17.4.0, "Amendment of a Decision–Section 120."

17.1.3    Policy

In order that the claimant and employer are not left unsure of a final resolution, the parameters that follow are applied for the application of those sections of the Act dealing with reconsideration¹ and an amendment of a decision².

Agents may reconsider a claim or a decision on a claim on receipt of new information, or when there is a realization that the information on the file warranted a different payment or a different decision. For example, the claimant submits new or additional information or, there is no new information but existing information is looked at again from a different perspective and the agent realizes that benefits were paid or withheld in error. This policy now includes the reconsideration of a disqualification³.

The agent makes the correction retroactively when an underpayment is caused. All other cases are corrected currently under the appropriate section of the Act, with the following exceptions⁴:

• where benefits were paid contrary to the structure of the Act⁵;
• where benefits were paid in error and the claimant ought to have known that he or she should not have been paid⁶;
• where benefits were paid on the basis of a false or misleading statement or misrepresentation attributable to the claimant⁷;
• when a decision is in dispute and specific circumstances apply, and the claimant or the employer wishes to have that decision reviewed⁸.

This limited application is intended to ensure that the Commission does not cause financial hardship to those claimants, who through no fault of their own receive benefits to which they are not entitled, unless one of the exceptions mentioned above occurs.

The Commission will not continue to pay benefit on becoming aware that there is no entitlement to those benefits. When reconsideration is not an option because to reconsider would cause an overpayment and the mistake was made by the Commission, the claim or decision is corrected as of the next week to be paid⁹.

All Commission employees regardless of group or level act for the Commission. As such, any employee in a position to receive information, to process report forms, to authorize payment or non-payment of benefits or investigate said payments, is considered to be performing such responsibility with the authority of the Commission. Any incorrect application of that responsibility is considered to be an error of the Commission.

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1. EIA 52;
2. EIA 120;
3. EIA 30;
4. EIA 52; see 17.3.2, "Applying Section 52";
5. EIA 52;
6. EIA 52;
7. EIA 52;
8. EIA 120;
9. see 17.2.3, "Commission Error–Correcting the Erroneous Decision."