CUB 70206

GUY GOULARD, Umpire

The claimant applied for employment insurance benefits on August 10, 2005 and a claim was established effective August 1, 2005. The claimant requested that his benefits be deposited directly in his bank account and filed his claimant's reports electronically through the Teledec system, using the access code which had been provided. The Commission later determined that, during his benefit period, the claimant had been incarcerated from October 3, 2005 to December 8, 2005 and from March 1, 2006 to April 1, 2006 and had continued to receive his benefits during his periods of incarceration. The Commission imposed a disentitlement for the periods during which the claimant had been incarcerated. This resulted in an overpayment of $1,843.00.

The claimant appealed the Commission's decision to a Board of Referees which dismissed the appeal. He appealed the Board's decision. This appeal was heard Sarnia, Ontario on February 19, 2008. The claimant was present and was represented by a representative.

Prior to the hearing before the Board of Referees, the Commission had determined that the claimant had not been incarcerated from October 8 to October 13, 2005 and was therefore entitled to his benefits during that period. The representative advised that the claimant was not contesting the disentitlement for the period from March 1, 2006 to April 1, 2006. The only issue remaining was whether the claimant had to reimburse an overpayment resulting from having received benefits during the periods between October 3, 2005 to October 7, 2005 and from October 14, 2005 to December 8, 2005.

The claimant maintained throughout his appeal that during the periods remaining in issue, he had not filed his claimant's reports and had not received any benefits. He was informed that his benefits had continued to be paid during his incarceration period only after his release from jail. He suspected that his girlfriend, who was the mother of his child, and who had cohabited with him prior to his arrest had phoned in his report and had accessed his bank account to withdraw moneys, including his benefits payment from his account. He maintained that he had not given her his Teledec access code but that she may have accessed it from information that may have been in his wallet which had been left in his apartment. The claimant never recovered his wallet and when he was released from jail there was no money left in his bank account. He had no proof that his girlfriend had filed his report or accessed his bank account. He added that his girlfriend would not have needed the money to care for their child as the child was with his parents during his period of incarceration. The Commission had considered doing a third party investigation on the claimant's girlfriend but was not able to do so as she was not available because she was in rehabilitation for a lengthy period of time and under house arrest.

The claimant appeared before the Board of Referees and acknowledged that his benefits had been deposited in his bank account during the periods of incarceration in October to December 2005. He maintained that he had not received any of these benefits personally.

The Board of Referees reviewed the evidence and dismissed the claimant's appeal for the following reasons:

"The Board finds that the Appellant supplied the means for the alleged fraud to be committed by not protecting his identity. Information from the docket suggests that, although he may not have called in his reports when he was incarcerated, someone else could have and probably did (Ex 41-3).

If a third party was involved and it was suggested by the Appellant that it was probably his girlfriend, the means to defraud or apply for the benefits would have to have come from the Appellant, directly or indirectly.

This is a presumption the Board makes on the balance of probabilities based upon the facts. There were reports made to Employment Insurance and payment made by Employment Insurance to the Appellant's bank account (Ex 41-3).

Secondly, the Appellant provided access to his bank account by a possible third party to that any moneys deposited to his account by Employment Insurance, while he was incarcerated, could be removed from his account by someone other than the Appellant.

Employment Insurance paid the Appellant, according to his direction, directly to his bank account (Ex 2-3), after his application for benefits was received on August 10, 2005.

Employment Insurance's commitment to him was satisfactorily completed. What wasn't satisfied, in the opinion of the Appellant, is that for two period of incarceration someone other than he may have had access to his bank account and took the money Employment Insurance had deposited.

The Appellant may have been victimized by a third party - perhaps his former girlfriend - but not by the Employment Insurance Commission.

The Board finds that the Appellant should not receive benefits for those periods of time he was incarcerated and not available for work."

In this case, there was no evidence that for the period of the claimant's incarceration in October to December 2005 he had provided his Teledec access code to his girlfriend or authorized her to withdraw moneys from his bank account. The claimant had maintained that he had not given his girlfriend any such authorization.

The facts in this case are analogous to those in A-419-99 and A-420-99 cases where, without the claimant's knowledge and consent, his ex-spouse had filed his reports and cashed his benefits cheques. The Federal Court of Appeal allowed the claimant's appeal for the following reasons:

"As we understand their reasons, a majority of the board of referees and the umpire concluded that since money was paid there was an overpayment, this overpayment had to be repaid and the person who had to make the repayment was the one with whom the Commission was concerned, and hence the plaintiff, since the fraud was perpetrated in connection with his claim for benefits.

That conclusion clearly cannot stand. The plaintiff never alleged he was entitled to benefits during the period at issue. He did not fail to report the earnings received (s. 19(3) of the Employment Insurance Act). He did not receive the benefits. Accordingly, there clearly can be no question of an overpayment within the meaning of the Act so far as he is concerned. (See the recent judgment of this Court on February 5, 2002), A-47-00 2002 FCA 46.)"

In CUB 65424B, Justice Stevenson went as far as to find that even if a claimant had provided his access code to a person, if this person fraudulently obtained the proceeds of employment insurance benefits without the claimant's consent, the claimant could not be required to reimburse an overpayment.

The evidence established that the claimant had not filed his reports and had not received his benefits for the periods relevant to the appeal. The benefits had been obtained fraudulently by a third party without the claimant's knowledge and consent. In accordance with the Federal Court of Appeal decision in A-419-99 and A-420-99 (supra), he could not be responsible to reimburse these benefits.

I consequently find that the Board of Referees erred in law and in fact in its decision.

Accordingly, the claimant's appeal is allowed. The Board of Referees' decision is set aside and the claimant's appeal of the Commission's decision is allowed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
April 14, 2008