Digest of Benefit Entitlement Principles - Chapter 17

17.5.0    APPEAL RIGHTS

17.5.1     Reconsideration Following Receipt of an Appeal

17.5.0    APPEAL RIGHTS

When the agent refuses to exercise his/her discretionary power to reconsider¹ a claim, this is not a decision that gives the right of appeal. The claimant is advised that the original decision is maintained.

When the agent exercises his/her discretion under section 52 and decides to reconsider a claim or a decision and as a result of that reconsideration there is a change to the original decision that would create an overpayment, there are appeal rights on the new decision. When the original decision is maintained the claimant is advised; however, the appeal rights and the time limitations for an appeal are those provided in the original decision².

When the claimant or employer alleges new facts and requests that the Commission review its decision³, he or she must be advised as to the result of that review and provided with appeal rights when applicable.

Issuance of the warrant is sufficient notification when the reconsideration or amendment results in an underpayment. When an overpayment results, the claimant is always advised as to the new decision, his/her appeal rights, and the overpayment amount. The employer with a vested interest in the decision, for example in some cases of voluntary leaving, misconduct, or labour disputes, is also advised of the change and provided with the right of appeal when applicable.

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1. EIA 52;
2. R. Fortin (T-472-88);
3. EIA 120.

17.5.1    Reconsideration Following Receipt of an Appeal

Receipt of an appeal from a claimant need not automatically result in that appeal proceeding to the Board of Referees. Before that happens, the decision giving rise to the appeal is reviewed by the agent under the appropriate section of the Act¹ as applicable, to ensure that it is in order. When the decision is in order the appeal proceeds through the normal process.

When the decision is not in order it (the decision) is to be corrected². An original decision may be modified on receipt of an appeal provided the appellant's right to appeal is not taken away and the Commission does not interfere with the claimant's right of appeal³.

When the agent determines that the decision under appeal should be completely reversed in favour of the claimant he or she is so advised and the appeal does not proceed unless the claimant so wishes. The claimant withdraw the appeal formally⁴. When there is a reversal of a misconduct, voluntary leaving, or labour dispute related decision in favour of the claimant, the employer is provided appeal rights.

When the agent determines that the decision under appeal should be partially reversed in favour of the claimant the adjustment is made if the claimant formally withdraws the appeal. The claimant is then advised of the new decision with appropriate appeal rights. Should the claimant wish to pursue the appeal the appeal process is activated as per the appeal process implemented in the Service Canada Centre.

When the agent determines that the decision under appeal should be changed but there is still no right to benefits, the change is made if the claimant formally withdraws the appeal. It must be made clear to the claimant what the overall consequences will be, even with the withdrawal of the incorrect decision. If the appellant agrees to withdraw the appeal, the incorrect decision is to be changed and the correct decision is to be imposed. The claimant is then advised of the new decision with appropriate appeal rights. and the appeal process is activated on the original decision⁴. Should the appeal proceed to the Board of Referees, the representations will advise the issue to be decided upon, and explain the reason for the error with a recommendation that the appeal be allowed on the incorrect decision and/or request the Board return the claim to the Commission so it may be adjudicated on the correct issue. If the Board accepts the Commission's recommendation, the agent must remove the incorrect decision, re-adjudicate the case and send the claimant a new notice of decision with a new 30-day appeal period.

If the employer appeals a decision to allow benefit to a current or former employee the appeal must proceed to the Board even if it is determined that the decision is incorrect, whether due to new facts or Commission error. In the Representations to the Board, the agent must explain the reason for the error and then include argumentation supporting the decision that should have been made.

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1. EIA 52; EIA 120;
2. see 17.1.3, "Policy";
3. C. Poulin (A-516-91, CUB 19688);
4. F. von Findenigg (A-737-82, CUB 7545), Wakelin (A-748-98, CUB 42401)