Digest of Benefit Entitlement Principles Chapter 20 - Section 2
20.2.0 General principles
The Commission has a discretionary write-off authority (EI Regulation 56). This discretion must however take into consideration all the pertinent information and be exercised in a judicious manner. Therefore, when all the prescribed conditions are met, the overpayment, in whole or in part, must be written off.
The primary condition to consider when deciding if an overpayment may be written off is whether it arises from a false or misleading statement or representation made by the debtor, or from an error on the part of the debtor (EI Regulation 56(1)(e); 56(2)).
It is not necessary that the statement or representation be knowingly made as required when considering whether to impose a penalty. The fact that there is a false or misleading statement or representation, even if made inadvertently or in error, is sufficient to refuse the write-off of the overpayment.
The write-off of overpayments should not apply to situations where the Commission paid benefits in error and the claimant ought to have known they were not entitled to all or some of the benefits, but did not take steps to advise the Commission in order to rectify the situation. A claimant has a duty and obligation to come forward in such situations. The defense that the Commission should not have paid benefits is not valid when a reasonable person should have known or realized that something was not right. For example, a claimant’s benefit rate was incorrectly calculated, and the claimant was receiving an amount almost equal to the wages they received while working. As the claimant ought to have known that their benefit rate was too high, any overpayment created will not be written off.
The common characteristics found in the situations and circumstances leading to an overpayment write off, are that the claimant cannot be held directly responsible for the events which led to the overpayment. In other words, the claimant did not play a role in or have any real control over the events except to request and receive the benefits in good faith.
A debt that has been written off is still owing and can, under certain circumstances, be revived. One such circumstance is when after a write-off, benefits become payable for the same period as the period for which the overpayment was established and written off.