Reconsideration of a Claim

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Disclaimer:
*This asterisk denotes recent case law.

Questions to Answer



  1. Authority to reconsider claim?
  2. Time limit to reconsider?
  3. New facts to amend earlier decision?


References

Legal test


 
Section  52 Commission Authority to Reconsider a Claim   Employment Insurance Act: the legal basis for the Commission's power to determine that benefits have been improperly paid and to ask for repayment. (LAFOREST  A-607-87) Judgment Of The Federal Court Of Appeal Examples:
Time limits to reconsider:
Section 120 - Authority to Amend a Decision   Employment Insurance Act: The Commission, Board of Referees or Umpire may rescind or amend their decision on presentation of new facts or error in material fact

Example: Claimant asks Commission, Board or Umpire to reconsider its 1st decision:  CHAN A-185-94 Judgment Of The Federal Court Of Appeal 

Onus of proof


 
Section 52 of the Act:   Employment Insurance ActEstablish underpayment or overpayment: The Commission must, within the legislated time frames: 1) decide whether or not to exercise its discretion to reconsider, 2) make the new decision, 3) calculate underpayment or overpayment, 4) notify claimant of the decision. BRIERE A-637-86 Judgment Of The Federal Court Of Appeal Section 120 of the Act:   Employment Insurance ActAmend or rescind a decision. The Commission, the Board of Referees or the Umpire must be satisfied there are new facts or mistake regarding a material fact CHAN A-185-94 Judgment Of The Federal Court Of Appeal 

Key Case Law


*IRVINE A-269-10: The Federal Court of Appeal found that the alleged new fact was not material to the applicant’s claim and consequently did not meet the new facts test for reconsideration pursuant to Section 120 of the Act.

*CHAMCHUK A-302-10: The Federal Court of Appeal dismissed the claimant’s appeal stating: “This Court has repeatedly held that absent special circumstances, it will not use a judicial review of the reconsideration decision as a vehicle for a collateral attack of the original decision…”

FORTIN T-472-88 Judgment Of The Federal Court Of Appeal, LAFOREST A-607-87 Judgment Of The Federal Court Of Appealsection 52 Employment Insurance Act used to correct Commission errors.

BRIEN A-425-96 Judgment Of The Federal Court Of Appeal and RAJOTTE A-426-96 Judgment Of The Federal Court Of Appeal:  Determining the reconsideration and recoupment period under section 52 Employment Insurance Act. Notifying claimant via Notice of Overpayment.

PIRKER A-753-00 Judgment Of The Federal Court Of Appeal, ZUCHOSKI A-217-97 Judgment Of The Federal Court Of Appeal:  Notification of overpayment

ROMERO A-815-96 Judgment Of The Federal Court Of Appeal, GAGNON A-676-96 Judgment Of The Federal Court Of Appeal:  Overpayment as an issue vs the decision that created the overpayment

LEMAY A-172-01 Judgment Of The Federal Court Of Appeal:  extension of time under 43(6) of the UI Act   Employment Insurance Act(now 52(5) of the EI Act   Employment Insurance Act) does not require the false or misleading statement to have been made "knowingly" unlike section 33 Employment Insurance Act (now section 38 Employment Insurance Act).

ARSENEAULT  A-66-05 Judgment Of The Federal Court Of Appeal, DUSSAULT A-646-02 Judgment Of The Federal Court Of Appeal, LANGELIER A-140-01 Judgment Of The Federal Court Of Appeal, PELLETIER A-988-96 Judgment Of The Federal Court Of Appeal & CAMPEAU A-989-96 Judgment Of The Federal Court Of Appeal, RANCOURT A-355-96 Judgment Of The Federal Court Of Appeal, PILOTE A-868-97 Judgment Of The Federal Court Of Appeal:  A claim may be reconsidered beyond the 36 month time limit if, in the opinion of the Commission, a false or misleading statement was made.

MANSOUR A-145-00 Judgment Of The Federal Court Of Appeal, BISWAS A-281-99 Judgment Of The Federal Court Of Appeal (upholding CUB 41771A Umpire Decision):  Amendment of decision - timeliness required

WATSON A-417-96 Judgment Of The Federal Court Of Appeal, OKAFOR A-648-94 Judgment Of The Federal Court Of Appeal, PLOMMER A-84-95 Judgment Of The Federal Court Of Appeal, WILE A-233-94 Judgment Of The Federal Court Of Appeal, TAYLOR A-681-90 Judgment Of The Federal Court Of Appeal:  Amendment of Decision on new facts.

CHAN A-185-94 Judgment Of The Federal Court Of Appeal, DUBOIS A-728-97 Judgment Of The Federal Court Of Appeal:  Definition of new facts

BRIERE A-637-86 Judgment Of The Federal Court Of Appeal:  Onus of proof.

CORNISH-HARDY A-647-78 Judgment Of The Federal Court Of Appeal / SUPREME COURT Number 15944 (1980), LAFLAMME A-931-96 Judgment Of The Federal Court Of Appeal, GIRARD A-6-97 Judgment Of The Federal Court Of Appeal:  Commission authority to write-off overpayment

MOSHER A-713-01 Judgment Of The Federal Court Of Appeal, BUORS A-294-01 Judgment Of The Federal Court Of Appeal, WOODS A-417-01 Judgment Of The Federal Court Of Appeal:  Neither the Board of Referees nor the Umpire has jurisdiction or authority to compel the Commission to exercise its discretion to write off an overpayment.

FOURNIER A-420-99 Judgment Of The Federal Court Of Appeal:  A claimant cannot be held responsible for an overpayment fraudulently perpetrated by a third party without his knowledge.

LANUZO  A-2-05 Judgment Of The Federal Court Of Appeal: Commission error does not excuse the obligation to repay benefits wrongly paid.



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