Executive Summary: Key Legal and Evidentiary Issues

• Judicial review focused solely on whether Employment Insurance (EI) overpayment could be written off under regulatory provisions.

• Applicant had received EI sickness and regular benefits but was later found ineligible due to insufficient insurable hours.

• Central legal issue concerned section 56 of the Employment Insurance Regulations and whether its criteria for debt forgiveness were met.

• The court had no jurisdiction over the underlying benefits entitlement issue, which should have been appealed to the Social Security Tribunal.

• Evidence showed the overpayment resulted from the applicant's own incorrect employment information, disqualifying her from debt relief.

• No indication of fraud, but even innocent errors bar relief under the relevant regulation; the court upheld the administrative decision as reasonable.

Facts and outcome of the case

The applicant, Aya Khadr, initiated a judicial review to challenge a decision by the Employment Insurance Commission refusing to forgive an overpayment of $6,612 in EI benefits. She had originally applied for both sickness and regular EI benefits in 2019 after a period of hospitalization. A provisional Record of Employment was used to issue payments while awaiting official documentation. Ultimately, she received 15 weeks of sickness benefits and 37 weeks of regular benefits, calculated at $349 per week.

Upon later receipt of the official Records of Employment from her employer, it was determined that Khadr had overstated the number of hours worked, leading to an overpayment. She had reported working 37.5 hours per week, but employer records showed only 25 hours per week. As a result, she had accumulated only 662 insurable hours, falling short of the 700 hours required to qualify for regular EI benefits in her region. The Commission issued a decision requiring repayment of $6,282 for regular benefits and $330 for a miscalculation in the sickness benefit rate.

Khadr contested both the legitimacy of the overpayment and her obligation to repay, arguing that the error was caused by misinformation from a government employee and that she could not afford to repay the debt. Her written objection did not formally distinguish between disputing the debt and seeking forgiveness based on hardship. This led to confusion in the administrative process and eventually a denial of her request for write-off under section 56 of the Employment Insurance Regulations.

After an earlier judicial review led to a reconsideration of her case due to failure to address the undue hardship argument, a new decision again refused the write-off. The Commission found that the overpayment did not meet the specific conditions required under section 56, including the requirement that the error must not have originated from the debtor. Because Khadr had provided inaccurate information, even if unintentionally, she did not qualify. She also failed to pursue the hardship exemption route through the Canada Revenue Agency, as required for that part of the regulation.

The court reviewed the case under the standard of reasonableness and concluded that the administrative decision complied with the legal and factual framework set out by law. It emphasized that the judicial review was limited only to the issue of debt forgiveness and not benefit entitlement, which fell within the jurisdiction of the Social Security Tribunal. The court ultimately dismissed the application for judicial review, finding the refusal to write off the overpayment reasonable.

No costs were awarded to either party.