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Employees - Employment Insurance

Contesting a Decision Regarding Employment Insurance

Jenny is looking for a new job while receiving employment insurance. Her aunt Muriel invites her to spend some time with her in sunny Florida to enjoy the beautiful beaches. Jenny decides to visit her aunt, and she continues to receive employment insurance during her stay in Florida. After coming home, Jenny gets a letter from the Department of Human Resources and Social Development Canada saying that she has to repay the employment insurance benefits she received for the month of June because she was in Florida that month. Jenny wants to contest the Department’s decision. She says that she was only in Florida for 10 days in June so she only wants to repay the benefits for those 10 days. Who should she contact? How much time does she have?

In this Infosheet, Éducaloi explains the process of contesting decisions made in your employment insurance file.

Who do I contact if I disagree with the decisions made in my employment insurance file?

You can contest most decisions made by the Department of Human Resources and Social Development Canada (the “Department”) in your employment insurance file by filing an appeal with the Board of Referees.

When you file an appeal, you ask the Board of Referees to look at what happened in your situation and to make a new decision.

The Board of Referees is independent from the Department, and it is made up of at least 3 people, including a chairperson, a representative of employers, and a representative of employees. The Board can just look at your file and make its decision. You are also allowed to ask the Board’s permission to present to it your case.

For example, the Department believes that Brian quit his job, so it refuses to give him employment insurance benefits. Brian says that he didn’t quit his job but was laid off. Brian files an appeal with the Board of Referees. The Board of Referees will examine what happened in Brian’s situation and decide whether or not Brian should receive employment insurance. For more information on the requirements to qualify for employment insurance, read our Infosheet entitled Employment insurance  (http://www.educaloi.qc.ca/en/loi/employees/415/).

Some decisions made in your employment insurance file must be appealed to the Minister of National Revenue, and not to the Board of Referees (see the question, “Which decisions in my employment insurance file have to be appealed to the Minister of National Revenue?”).

Are there decisions which cannot be contested?

Yes. Exceptionally, certain decisions made by the Department in your employment insurance file cannot be appealed such as the Department’s decision to:

• refer or not to refer you to a course or a training program;
  
• approve or reject a work sharing agreement;
  
• grant or not to grant a sum of money to an employer to encourage her to hire or to train you.

For example, Mireille wants the Department to refer her to a course so that she can receive employment insurance while she is taking the course. The Department refuses to refer her. Mireille cannot appeal this decision.

I want to contest a decision. When and how do I file an appeal with the Board of Referees?

In general, you have 30 days after you receive the decision to file an appeal. Your appeal must be made in writing and indicate:

• your social insurance number;
  
• your contact information;
  
• which decision you are contesting;
  
• the reasons why you don’t agree with the decision;
  
• if you are choosing to be represented by someone else, it must also include their name, their contact information and the role that you want this person to play.

At the time of filing an appeal, you can also apply in writing for a hearing before the Board of Referees. You must send the appeal and your request for a hearing to the office of the Department of Human Resources and Social Development Canada (the “Department”) that made the decision. The Service Canada website has a form that you may use to file your appeal; this form also has a section in which you can indicate whether or not you want to have a hearing. Click here  (http://www.hrsdc.gc.ca/cgi-bin/search/eforms/index.cgi?app=profile&form=ins5210&dept=sc〈=e) for the form.

The Board of Referees will give you a hearing if you ask for one. But even if you don’t ask for a hearing, the Board of Referees may decide to have a hearing. Even if there is no hearing for your appeal, the Board of Referees will still make a decision about your appeal.

For example, Jenny fills out the online form to file an appeal to contest the Department’s decision asking her to repay the employment insurance benefits she received in June. In the form, she explains that she is contesting the decision because she was in Florida for only 10 days in June, so she thinks that she should only have to pay back the benefits she received over those 10 days. Jenny also indicates in the form that she wants a hearing before the Board of Referees.

What happens after I file an appeal with the Board of Referees?

After you have filed your appeal, you will get a letter from the Department of Human Resources and Social Development Canada (the “Department”) confirming that your appeal has been received. The Department will also inform you which parts of the law are relevant to your appeal.

Later on, the Department will send you something called an appeal docket. The appeal docket contains information about the decision that you are contesting. It tells you about the documents used by the Department to make the decision, the Department’s reasons for making the decision, and the decisions made in other people’s files (for example, court decisions) that the Department referred to when making the decision that you are contesting. The appeal docket is also sent to the Board of Referees. The Board of Referees reads it to find out what happened in your case.

If there is a hearing for your appeal, the Department or the Board of Referees will also send you a notice of hearing, which is a document that tells you when and where the Board of Referees will hear your case.

I received a notice of hearing from the Board of Referees. What happens during the hearing?

While you don’t have to attend the hearing before the Board of Referees, it is a good idea to attend because it will give you a chance to explain your situation to the Board and to answer any questions that the Board may have.

You can ask for a different hearing date if the hearing was held at your request and you cannot attend on the date set in the notice. Otherwise, the hearing will take place without you. You may also ask to attend by telephone.

During the hearing, you have to explain to the Board why you are contesting the decision and show any evidence (documents, photos, witnesses, etc.) to prove that what you are saying actually happened. For example, during her hearing, Jenny tells the Board that she was in Florida for 10 days only, and she shows the Board her plane ticket and her passport to prove this. You don’t need a lawyer for a hearing before the Board of Referees, but, if you want, you can ask a lawyer or another person, like a friend or a union representative, to act for you before the Board of Referees. You will then have to sign a written authorization so that this person can access relevant documents.

Your former employer may also be present at the hearing if your former employer is involved in your appeal, for example, if you say that you left your job because your working conditions were dangerous or if your former employer says that she fired you because you made a serious mistake. Your former employer will also have the chance to explain her side of the story to the Board of Referees and show any evidence. An employee from the Department of Human Resources and Social Development is usually not present at the hearing, but she could be there.

After the hearing, the Board of Referees will make a decision about your appeal. You will receive a copy of the decision. The Department and your former employer, if your former employer was involved in the appeal, will also receive the decision.

The employment insurance website  (http://www.ei-ae.gc.ca/en/referees.shtml) has more information on how to file an appeal and prepare for a hearing before the Board of Referees.

What can I do if I disagree with the decision made by the Board of Referees?

If you disagree with the decision made by the Board of Referees, you can appeal the decision to the umpire, who is either a judge or a former judge. When you appeal to the umpire, you are asking the umpire to check the decision made by the Board of Referees to see if it was made properly. He does not restart the whole hearing process all over again. The umpire will reject your appeal if it is not based on one of the following reasons:

• the Board of Referees did not follow a principle of natural justice: for example, if the Board did not give you a chance to explain your situation or present your evidence; or
  
  
• the Board of Referees did not act within its jurisdiction, i.e. the Board did not have the authority to make the decision: for example, if the decision should have been made by the Minister of National Revenue, and not by the Board of Referees. See the question “Which decisions in my employment insurance file have to be appealed to the Minister of National Revenue?”; or
  
  
• the Board of Referees refused to exercise its jurisdiction- to do what it has the right to do (the exact opposite of the above situation): for example, if the Board said it did not have the authority to make a decision, even though it did; or
  
  
• the Board of Referees made a mistake in the law when making the decision; or
  
  
• the decision of the Board of Referees was based on a serious mistake that the Board made in interpreting the facts.

You must show the umpire that your appeal is based on one of the reasons mentioned above. So, for example, the umpire will reject your appeal if you are making it just because you didn’t like the decision made by the Board of Referees.

When and how do I file an appeal with the umpire? What happens after I file an appeal?

In general, you have 60 days after you receive the decision of the Board of Referees to file an appeal with the umpire. The appeal must be in writing, and it must contain the reasons why you are filing an appeal. You must file the appeal with the same office of the Department of Human Resources and Social Development Canada (the “Department”) that first made the decision in your case. The Service Canada website has a form that you may use to file your appeal: click here  (http://www.hrsdc.gc.ca/cgi-bin/search/eforms/index.cgi?app=profile&form=ins3042&dept=sc&lang=e) for the form.

Within 60 days after you have filed your appeal, the Department will send an appeal docket to the umpire and to you. The appeal docket contains information such as the documents used by the Board of Referees to make their decision, a transcript of any evidence given to the Board of Referees (for example, what a witness told the Board of Referees), and the decision made by the Board of Referees. During this 60-day period, the Department may send a statement containing its opinion and observations about your appeal to the umpire; you will also receive a copy of this statement.

Within 15 days after the appeal docket is sent to the umpire, you can file a statement containing your opinion and observations about your appeal with the Department office where you filed your appeal to the umpire. The Department will send your statement to the umpire. During this 15-day period, you can also ask for a hearing before the umpire. You have to apply for a hearing in writing, and file your application with the Department. The Department will send your application for a hearing to the umpire. The online form for filing an appeal with the umpire has a section in which you can indicate whether or not you want a hearing. You will get a hearing before the umpire if you ask for it. Even if you don’t ask for a hearing, the umpire may still decide to hold a hearing for your appeal.

You will receive a notice of hearing, which is a document that tells you when and where the hearing before the umpire will take place, at least 14 days before the hearing.

What happens at the hearing before the umpire?

While you don’t have to attend the hearing before the umpire, it is a good idea to attend so that you can explain to the umpire why you filed the appeal and answer any questions that the umpire may have. You can go before the umpire on your own. If you want, you can also ask a lawyer or another person (for example, a friend or a union representative) to act for you at the hearing.

Hearings before the umpire are less formal than court hearings. During the hearing, the umpire will give you the opportunity to explain why you filed an appeal. To find out more about the reasons you need to file an appeal before the umpire, see the question “What can I do if I disagree with the decision made by the Board of Referees?” The umpire may also ask you other questions about your appeal.

In general, you cannot tell the umpire about any new facts that you hadn’t already presented to the Board of Referees, so the umpire examines the facts already presented to the Board of Referees. But you can tell the umpire about new facts if you can show the umpire that evidence concerning these new facts wasn’t available at the time of the hearing before the Board of Referees. You can also tell the umpire about what happened during the hearing before the Board of Referees.

Your former employer may also be present at the hearing if your former employer is involved in your appeal, for example, if you said that you left your job because your working conditions were dangerous or if your former employer said that she fired you because you made a serious mistake. A lawyer from the Department of Human Resources and Social Development Canada is always present at the hearing before the umpire.

After the hearing, the umpire can:

• reject your appeal;
  
• give a new decision;
  
• refer the matter back to the Board of Referees with instructions for how to re-hear the case; or
  
• confirm, cancel or change all or part of the decision made by the Board of Referees.

You will receive a copy of the umpire’s decision.

The employment insurance website  (http://www.ei-ae.gc.ca/en/umpire_appeal.shtml#umpire) has more information on how to file an appeal and prepare for a hearing before the umpire.

What can I do if I disagree with the umpire’s decision?

Generally, the decision made by the umpire is final, which means that you cannot have it changed. But in certain cases, you can ask the Federal Court of Appeal to review the decision to check that it was correct. This is called an application for judicial review.

In general, you have 30 days after you receive the umpire’s decision to file an application for judicial review. The Federal Court of Appeal can cancel the umpire’s decision and send the case back to the umpire with instructions on how to proceed with the case. But in order for the Federal Court of Appeal to do this, you will have to show that there was a serious problem with the umpire’s decision: for example, the umpire did not have the jurisdiction (power) to make the decision, the umpire did not give you a chance to explain your situation, or the umpire made a mistake in the law.

Can my former employer contest decisions made in my employment insurance file?

Yes. Your former employer may decide to appeal a decision made by the Department of Human Resources and Social Development Canada (the “Department”) in your employment insurance file. The employer will appeal the Department’s decision to the Board of Referees. For example, Annie’s boss appealed the Department’s decision to give her employment insurance. Annie’s boss doesn’t think Annie should receive employment insurance because she was fired for being chronically late.

You will receive a notice of appeal, which is a document that tells you that the employer is filing an appeal. Even if the employer hasn’t asked for a hearing, you can ask the Board of Referees for a hearing within 7 days after you get the notice of appeal. If you or the employer ask for a hearing or if the Board decides to have a hearing, you will get a notice of hearing which will tell you when and where the hearing will take place.

If the employer disagrees with the decision made by the Board of Referees, he can appeal that decision to the umpire. Again, you will be informed that an appeal has been filed by the employer and you will receive an appeal docket. To find out more about the appeal docket, see the question “When and how do I file an appeal with the umpire? What happens after I file an appeal?”

You can apply for a hearing before the umpire within 15 days after the appeal docket is filed with the umpire. You have to apply for a hearing in writing, and file your application with the Department. The Department will send your application for a hearing to the umpire. You will receive a notice of hearing telling you when and where the hearing will take place. The employer would need to prove the same reasons for filing an appeal to the umpire as the former employee. To find out what these reasons are, see the question “What can I do if I disagree with the decision made by the Board of Referees?”

If the employer disagrees with the umpire’s decision, he can also ask the Federal Court of Appeal to review the decision and check that it was correct. See the question “What can I do if I disagree with the umpire’s decision?”

Can the Department of Human Resources and Social Development Canada appeal a decision made by the Board of Referees or by the umpire?

Yes. The Department of Human Resources and Social Development Canada (the “Department”) may appeal a decision made by the Board of Referees, if it disagrees with the decision. The Department files an appeal with the umpire. For example, the Board of Referees decided that Paula is entitled to receive employment insurance benefits even though she quit her job. The Department thinks that the Board made a mistake in the law, so it decides to file an appeal with the umpire.

If the Department files an appeal, you will receive an appeal docket. To find out more about the appeal docket, see the question “How do I file an appeal with the umpire? What happens after I file an appeal?” You can apply for a hearing before the umpire within 15 days of filing the appeal docket with the umpire. You have to apply for a hearing in writing, and file your application with the Department. The Department will send your application for a hearing to the umpire. The Department would need to prove the same reasons for filing an appeal with the umpire as the former employee. To find out what these reasons are, see the question “What can I do if I disagree with the decision made by the Board of Referees?”

If the Department disagrees with the umpire’s decision, it can also ask the Federal Court of Appeal to review the decision and check that it was correct. See the question “What can I do if I disagree with the umpire’s decision?”

Which decisions in my employment insurance file have to be appealed to the Minister of National Revenue?

Certain decisions made in your employment insurance file may only be appealed to the Minister of National Revenue. These include decisions about:

• whether your job was insurable employment. (To find out more, read our Infosheet entitled Employment insurance  (http://www.educaloi.qc.ca/en/loi/employees/415/)).
  
• the amount of income you earned from your job.
  
• how long your job lasted.
  
• how many hours you worked in your job.

You have 90 days after you receive the decision to file an appeal with the Minister of National Revenue. The Canada Revenue Agency has an online form that you may use to file an appeal with the Minister of National Revenue: click here  (http://www.cra-arc.gc.ca/E/pbg/tf/cpt100/) for the form.

After receiving your appeal, an employee representative of the Minister of National Revenue will contact you and ask you questions about your appeal. You can explain your situation to this person. The Minister of National Revenue will review the facts, including any information you provided when the Minister’s representative contacted you, and make a decision about your appeal. The Minister will send you a copy of his decision.

If you disagree with the decision made by the Minister of National Revenue, you can file an appeal with the Tax Court of Canada. If you disagree with the decision made by the Tax Court of Canada, you can file an appeal with the Federal Court of Appeal. But in order for your appeal to the Federal Court of Appeal to be successful, you must show that there was a serious problem with the decision made by the Tax Court of Canada: for example, the Tax Court of Canada did not have the jurisdiction (authority) to make the decision, it did not give you a chance to explain your situation, or it made a mistake in the law. Finally, if you disagree with the decision made by the Federal Court of Appeal, you can appeal it to the Supreme Court of Canada but you must first ask the Federal Court of Appeal or the Supreme Court of Canada for permission to appeal. For more information, you can read this pamphlet  (http://www.cra-arc.gc.ca/E/pub/tg/p133/p133-e.pdf) (in PDF) prepared by the Canada Revenue Agency.