Executive Summary: Key Legal and Evidentiary Issues

• Judicial review was confined to assessing whether the Canada Employment Insurance Commission reasonably refused to write off an EI overpayment debt, not to revisiting EI entitlement or tribunal findings.

• Prior decisions of the Social Security Tribunal established that the applicant misrepresented her availability for work between February and October 2021, leading to an EI overpayment of $16,115.

• Section 56 of the Employment Insurance Regulations requires a two-step analysis, where eligibility for relief must first be met before any discretion to write off a debt can be exercised, and such write-offs are treated as exceptional.

• Paragraph 56(1)(e) barred any write-off because the overpayment resulted from a false or misleading declaration by the debtor, regardless of whether she knew the declaration was false.

• Subsection 56(2) further prevented a write-off because the benefits had been received more than 12 months before the Notice of Debt and the overpayment arose from misrepresentation.

• The court found the Commission’s interpretation and application of its statutory authority reasonable; the Attorney General of Canada succeeded, and the $16,115 EI debt remains payable, with no costs awarded.

Facts and outcome of the case
The case concerns an application for judicial review by Ms. Alice Giang against the Attorney General of Canada, arising from a debt for Employment Insurance benefits. Ms. Giang had worked in retail and as a lunch monitor for the Calgary Board of Education, leaving the school position in April 2020 when schools closed due to the COVID-19 pandemic. She first received support through the Canada Emergency Response Benefit. In the fall of 2020, when she was expected to return to the school, she took a one-month medical leave that she extended to February 2021 and did not return to work thereafter. By September 2021, the school board terminated her position after more than a year of absence. During her absence up to February 2021, Ms. Giang received EI sickness benefits and correctly reported she was not available for work, which was not in dispute. From February to October 2021, however, she continued to file electronic EI reports indicating she was available for work, although she did not work for the school or any other employer during this time. In November 2021, she contacted the Commission to say she could not work because of an arm injury, which led the Commission to investigate her medical limitations and actual availability for work.
Following its investigation, the Commission determined that Ms. Giang was not capable of and available for work for 32 weeks between February and October 2021 and that she had not made sufficient efforts to find suitable employment. It concluded that she had misrepresented her availability in her bi-weekly reports and that she was not entitled to the regular EI benefits she had received for that period. An overpayment of $16,115 was established and a Notice of Debt was issued in that amount, treating the overpayment as a debt to the Crown. Ms. Giang appealed the overpayment decision to the General Division of the Social Security Tribunal, which found she was not available or capable of work due to complex medical issues and had not adequately sought work. The General Division also held that it did not have authority to write off an overpayment and advised that any write-off request had to be made to the Commission. The Tribunal’s Appeal Division refused leave to appeal, and Ms. Giang did not pursue judicial review of those tribunal decisions.

Statutory framework on EI write-offs
Instead of challenging the tribunal outcome, Ms. Giang applied to the Commission for a write-off of her debt under section 56 of the Employment Insurance Regulations. Under that provision, the Commission must first determine whether a claimant meets one of the prescribed eligibility categories before it can consider using its discretion to write off a debt. Courts have described this regime as conjunctive and exceptional: if the first step is not met, there is no discretion to grant relief at the second step. In particular, paragraph 56(1)(e) provides that a write-off cannot be granted where the overpayment arises from an error or from a false or misleading declaration by the debtor, whether or not the debtor knew it was false. Subsection 56(2) similarly restricts the Commission’s ability to write off benefits received more than 12 months before the notification of overpayment when the overpayment results from such misrepresentation.

Reasonableness review by the court
On judicial review, the court applied the reasonableness standard to the Commission’s refusal to write off the debt. The court stressed that its role was not to reweigh evidence or revisit the Social Security Tribunal’s factual findings on availability or misrepresentation; those determinations were treated as final. The only question was whether the Commission’s interpretation and application of section 56 of the Regulations, in light of those facts, was justified, transparent and intelligible. Because the Commission and the Tribunal had already found that Ms. Giang misrepresented her availability for work, the court held that paragraph 56(1)(e) plainly excluded her from eligibility for a write-off. The court also accepted that subsection 56(2) barred a write-off because the EI benefits at issue had been paid in 2021, more than 12 months before the Notice of Debt issued in October 2023, and the overpayment arose from misrepresentation.

Ruling and overall outcome
The court concluded that the Commission reasonably determined that Ms. Giang did not meet the threshold eligibility requirements for debt relief under section 56 of the Employment Insurance Regulations and thus had no discretion to write off any part of the debt. As a result, the judicial review application by Ms. Giang, as applicant, against the Attorney General of Canada, as respondent, was dismissed. The court issued no order for costs, meaning each party bore its own expenses. No new damages or monetary awards were granted; instead, the effect of the decision was that the existing EI overpayment of $16,115 remains fully payable by the applicant, with the respondent effectively prevailing in the proceeding.