In the Matter of the Employment Insurance Act,
S.C. 1996, c. 23
and
In the Matter of a claim for unemployment benefits by
Kenneth A. Greene
and
In the Matter of an Appeal by the Claimant from the decision of a Board of Referees given at Sydney, Nova Scotia on August 20, 2002
Appeal heard at Sydney, Nova Scotia on September 16, 2003
DECISION
R. C. STEVENSON, UMPIRE:
Mr. Greene appeals from the decision of a Board of Referees dismissing his appeal from the allocation by the Commission of moneys he received under an Early Retirement Incentive Program (ERIP).
Mr. Greene had been employed by Cape Breton Development Corporation (DEVCO) for over 25 years. He was 47 when his employment ended. He promptly applied for unemployment benefits. It seems he was told by Commission staff that he could exhaust the unemployment benefits to which he was entitled before starting to receive ERIP payments. However, he began to draw those payments. The uncontradicted evidence is that he inquired of the Commission and was told he need not report those payments on his biweekly claims because the Commission was aware of them and would adjust his benefits. No such adjustments were made and when the Commission eventually allocated the ERIP payments an overpayment of $10,067 resulted.
The very narrow issue in this case is whether the ERIP payments were earnings within the meaning of subsection 35(2) of the Employment Insurance Regulations and thus subject to allocation under section 36. The Commission asserts that the payments were "moneys paid ... on a periodic basis ... on account of or in lieu of a pension" and thus within paragraph 35(2)(e) of the Regulations.
There is nothing in the record to document how the ERIP was created or structured. Mr. Greene did submit an extract from an arbitration award dealing with other matters. In that extract, the arbitrator said that the ERIP provided "some measure of compensation for lost retirement income." He also said it included "at least partial recognition of lost retirement income."
There is no presumption that payments under something labelled an "Early Retirement Incentive Program" are moneys paid on account of or in lieu of a pension.
The Board of Referees did not make any findings of fact in that respect. It said simply that it found "that the Act points out that Section 35(2(E)(A) (sic) points out that this must be classed as income."
I conclude that the Board of Referees erred both in law and in fact. By failing to document the ERIP the Commission failed to discharge the burden of proving that the payments were moneys paid on account of or in lieu of a pension.
The appeal is allowed and the allocation is set aside.
RONALD C. STEVENSON
Umpire
FREDERICTON, NEW BRUNSWICK
September 26, 2003