Digest of Benefit Entitlement Principles Chapter 18 - Section 12

18.12.0 Appeals

Penalties and violations may be appealed. The claimant or employer may assert the information originally provided was not false, or that the explanations provided are sufficient to negate a finding of knowingly made. They may also argue that mitigating circumstances were not correctly considered and that the failure to reduce the penalty fails the test of a judicious decision.

When a decision related to an appeal must be reconsidered, the policy that was in effect at the time of the original decision applies.

Because the imposition of a penalty and the issuance of a violation are fully discretionary, the legal test at appeal is that the Commission correctly exercised its discretion. Case law consistently holds that discretion must be exercised judiciously. This means the evidence shows that the Commission appropriately considered all the information provided. If an explanation is credible, the Commission cannot dismiss it. Similarly, if an explanation has no bearing on the matter, the Commission cannot include it in determining the finding of misrepresentation, in the calculation or reduction of the penalty amount, or in the issuance of a violation.

The documentation must show the Commission correctly addressed these factors at the time of the initial decision, and in any amendment.

If a penalty and violation are successfully appealed, the Commission must review any penalties and violations imposed subsequent to the appealed decision. A second penalty may have been calculated at 100% of the benefit rate and must be re-calculated at 50%. Additionally, mitigating factors considered in the appealed decision may have to be applied to the subsequent decision. Likewise, the violation may need to be changed from a subsequent violation to a minor, serious or very serious violation.

[ September 2010 ]