No. 17–Wage Earner Protection Program Appeals (Overpayment)
The following is one in a series of information circulars prepared by the administration staff of the CIRB. The circulars are designed to provide employees, trade unions and employers with general information and a clearer understanding of Board processes. This information circular is an informal tool and is not binding on the Board.
What is the Wage Earner Protection Program?
The Wage Earner Protection Program (WEPP) is a Government of Canada program that provides payment of eligible wages owing to workers whose employer is bankrupt or subject to a receivership. Eligible wages under the WEPP include salaries, commissions, vacation pay, termination pay and severance pay.
The WEPP is delivered by Service Canada. It is Service Canada’s responsibility to determine whether an applicant meets the eligibility requirements under the WEPP and to issue any eligible payment to the applicant. For further information about the WEPP, please visit Service Canada’s website.
Important Note: A WEPP application should be filed with Service Canada, not with the CIRB.
What is a WEPP overpayment?
In some cases, an eligible WEPP recipient receives a higher WEPP payment than what they are entitled to (overpayment). If the recipient is sent a written notice informing them that they have received a WEPP overpayment, they are required to repay any amount owing. The trustee or receiver handling the bankruptcy or receivership proceedings for the recipient’s former employer will also be informed of the overpayment determination and the amount that the recipient was not eligible to receive.
What is a review by the Minister regarding overpayment?
If a WEPP recipient disagrees with the determination of WEPP overpayment, they may request the Minister to conduct a review of the determination. To find out more about this process and the timelines for filing a request for review, please visit Service Canada’s website.
Important Note: A request for review under the WEPP should be filed with Service Canada, not with the CIRB.
What is a Wage Earner Protection Program appeal regarding overpayment?
Section 32.5 of the Wage Earner Protection Program Act (the WEPP Act) provides that an individual may appeal a review decision made by the Minister under section 32.2 of the WEPP Act (review decision by the Minister regarding overpayment) to the CIRB, but only on a question of law or jurisdiction.
The appeal is to be “on the record” only. This means that no new information may be provided and that the appeal will be based on the departmental record that was created for the review.
An application to appeal must be in writing and include the following:
- the last three digits of the applicant’s Social Insurance Number (SIN);
- the applicant’s current contact information (address, telephone number, etc.); and
- detailed grounds/reasons for the appeal.
The application to appeal may be denied if reasons are not provided.
Who may file a Wage Earner Protection Program appeal regarding overpayment?
A WEPP recipient who is not satisfied with the outcome of the review by the Minister may appeal the Minister’s review decision, but only on a question of law or jurisdiction.
When to File an Application to Appeal
The Board has determined that an application to appeal pursuant to section 32.5(1) of the WEPP Act shall, unless circumstances beyond the control of the applicant justify a longer period, be made within 60 days after the day on which the applicant is notified of the Minister’s decision.
If the applicant is unable to file their application to appeal within the 60-day period, they must provide the reasons for the delay. An extension may be granted if the applicant can demonstrate that there were circumstances beyond their control that prevented them from filing within the prescribed time period.
How to File Application to Appeal
A WEPP Overpayment Appeal Form is available at any of the Board’s offices or on the Board’s website. It is strongly recommended that applicants use this form. It asks for the necessary information that the Board needs to consider and determine the application to appeal. Not completing this form may cause delays in the appeal process.
The Board has an e-filing Web Portal (Portal) service, which allows an applicant to file Portable Document Format (PDF) documents in the Board’s centralized document filing system. The Portal can be accessed here. If the applicant chooses to file their document electronically using the Portal, they should not forward a hard copy of the same document to the Board. The electronic version will be considered the original copy.
The application to appeal may also be filed by courier, by mail or in person at any of the Board’s offices. The application to appeal will be considered filed as of the date the Board receives it, or, under section 8 of the Canada Industrial Relations Board Regulations, 2012, the date of filing is the date the application to appeal was mailed to the Board when registered mail is used.
The information provided and any documents submitted to the Board are collected solely for the purpose of administering the WEPP Act and will be used to deal with and adjudicate matters that come before the Board. Parties that engage the Board’s services should be aware that this is a public process. Documents filed with the Board will be placed on the public record, with the exception of documents that the Board declares to be confidential. The Board provides public access to case files and posts key decisions on its website. Board decisions may identify parties and witnesses by name and may include information about them that is relevant and necessary to the determination of the dispute. For sensitive information, a request can be made to the Board for a Confidentiality Order. See Information Circular No. 12 for the Board’s Policy on Openness and Privacy.
What happens after the application to appeal has been filed?
Inform Minister of Appeal and Request Documents from Minister
After an application to appeal is filed, the Board will inform the Minister in writing that an application to appeal has been filed, provide a copy of the application to the Minister and request from the Minister a copy of any document that the Minister relied on for the purpose of making the decision being appealed.
Upon receipt by the CIRB of a copy of any document that the Minister relied on for the purpose of making the decision being appealed, the application to appeal will be processed by the CIRB.
A letter will be sent to the applicant, with a copy to the Minister and the trustee or receiver, acknowledging receipt of the application to appeal and appointing an Industrial Relations Officer to oversee the conduct of the file. A copy of any document that the Minister relied on for the purpose of making the decision being appealed will also be provided to the applicant.
Representations by Minister
Section 32.6(4) of the WEPP Act provides that the Minister may, in an appeal, make representations to the Board in writing. If the Minister wishes to do so, the Minister may file any written representations within 15 days from the receipt of the Board’s letter. The Board requires that the Minister provide a copy to the applicant. If the Minister makes representations in writing to the Board, the applicant will have 10 days from the receipt of the Minister’s representations to file a reply with the Board and provide a copy to the Minister.
The Chairperson of the Board may also appoint an external adjudicator to hear and determine the application to appeal. External adjudicators have all the powers, duties and functions conferred on the Board by the Code regarding any matter to which they have been appointed, and their orders and decisions are considered to be the Board’s orders and decisions.
Decision of the Board
Once the Board makes a decision on the application to appeal, the applicant will be informed of the Board’s decision in writing. A copy of the decision will also be provided to the Minister and to the trustee or receiver.
What remedies can be ordered by the Board?
The Board has the power to confirm, rescind or vary the decision being appealed.
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