Digest of Benefit Entitlement Principles - Chapter 17
CHAPTER 17
RECONSIDERATION, AMENDMENT OF A DECISION, AND ERROR CORRECTION
17.3.0 A RECONSIDERATION OF A CLAIM—Section 52
17.3.1 The Time Limitations
17.3.2 Applying Section 52
17.3.0 A RECONSIDERATION OF A CLAIM–SECTION 52
The Commission has the authority to reconsider1 any claim, or any decision, with or without new facts when there is a realization that the claimant received benefits to which he or she was not entitled and as a result was overpaid; or has not received benefits to which he or she is entitled, in which case an underpayment occurred. The only limitations on what can be reconsidered are that the reconsideration must result in creation of an overpayment or an underpayment2, and the reconsideration must be completed within the legislated time frames3.
Before proceeding, the agent must ensure that the four operations contained in this provision can be completed within the legislated time frame, otherwise there can be no reconsideration4. Those four operations are:
- decide whether or not to exercise its discretion to reconsider (i.e. there is sufficient time, an overpayment or underpayment will result, information presented warrants reconsideration),
- make the new decision,
- calculate the amount to be paid or recovered, and
- notify the claimant of the decision.
________________________
- EIA 52;
- EIA 52(2);
- see 17_3_1, "The Time Limitations";
- M. Brière (A-637-86).
The Commission has 36 or 72 months1 from the week benefits were paid or payable, to decide whether or not to reconsider the claim, make its decision, calculate the amount to be paid or recovered, and notify the claimant. Keeping in mind that all these steps have to be accomplished within the time limitations, the agent should take into consideration administrative delays in processing, as well as postal delays to determine whether the weeks fall within the 36 or 72 months from the week benefits were paid or payable.
Even when the decision being reviewed did not take place within the 36 or 72-month period, the Commission may still reconsider those weeks that were paid or payable within those legislated time frames.
The time limit for reconsideration of a claim can be extended to 72 months2 when, in the opinion of the Commission, a false or misleading statement or misrepresentation has been made in connection with the claim. The Commission does not need to prove that the claimant knowingly made the false or misleading statement or misrepresentation with the intent to defraud. It is used only at the discretion of the agent and only in those cases where the Commission would be negligent in overlooking it. It is not the intent of this policy to place the claimant in a reconsideration position indefinitely.
________________________
It is Commission policy to reconsider1 a claim when one of the following situations is applicable.
1) Underpayment of benefits: the agent receives new information or reviews existing information in a new light and rescinds his/her original decision. Reconsideration applies, the original decision is corrected retroactively, and the underpayment issued.
2) Contrary to the structure of the Act: this relates to those provisions that constitute the very basic requirements that need absolutely to be in place in order to receive benefits. This would include (but is not limited to), situations where the employment is not insurable or there are not enough insurable hours to qualify, or where specific conditions are not met for special benefits, or for extensions of the benefit or qualifying period, or where the benefit rate is not in accordance with the specific calculation stipulated in the Act. Errors of this nature are corrected retroactively regardless of where responsibility for the error lies.
3) Benefits paid in error and claimant failed to come forward: this would occur in instances such as (but not limited to) the claimant reporting earnings, outside of Canada, or being an inmate of a jail or similar institution but still receiving benefit. While errors of this nature could be defined as Commission errors, the claimant does have a duty and obligation in such situations because he or she ought to have known that benefits should not have been paid.
4) False or misleading statement/misrepresentation attributable to the claimant: when the agent realizes that benefit was issued on the basis of a false or misleading statement or misrepresentation made by the claimant, or by a representative on behalf of the claimant, reconsideration takes place, and an overpayment is created. As a general principle the courts have said that no one should profit from their own false or misleading statement or misrepresentation.
Investigation and Control is included in this section to make the point that Investigation and Control interventions, including post-audits, as determined by the Agent, are reconsidered2.
It is important to note that an employer penalty imposed for a false statement or misrepresentation3 cannot be reconsidered4, as it does not relate to a claim for benefit. The employers' recourse lies under rescission or the reduction of the penalty5 or the appeal process6.
