Wage Earner Protection Program Overpayment Appeals

Appeals of review decisions made by the Minister of Labour respecting overpayments

IMPORTANT: The information on this page only applies to you if:

you asked the Minister of Labour (the Minister) to review a decision of Service Canada that found that you received a payment under the Wage Earner Protection Program (WEPP) that was more than you were entitled to; AND
the Minister has issued a decision.

If you have asked the Minister to review a Service Canada decision that you received a WEPP overpayment and you have not received a response, you can contact the Labour Program of Employment and Social Development Canada (the Labour Program) to find out the status of your request.

For more information about the WEPP and WEPP appeals, and how to request a review of a Service Canada decision, visit our page called Wage Earner Protection Program Appeals.

Who can appeal a decision of the Minister that a WEPP payment recipient received more than they were entitled to?

You can appeal the Minister’s decision to the Canada Industrial Relations Board if you meet all of the following conditions:

You received a notice from Service Canada that you received a WEPP payment that was more than what you were entitled to.
You asked the Minister to review this decision.
The Minister agreed with Service Canada’s decision.
Fewer than 60 calendar days have passed since you received the Minister’s decision.

How do I file an application to appeal the Minister’s overpayment decision?

It is strongly recommended that you use the Wage Earner Protection Program Appeals (Overpayment) form to file your application. The form contains the information that the Board needs to make a decision and will help you make sure that the information that you are filing is complete.
If you do not file all the information that the Board needs, it will take the Board longer to process your application.
In some cases, not filing all the information that the Board needs can result in your application being dismissed without the opportunity to make any further submissions.
All documents, including applications and all supporting documents, are filed using the Board’s E-Filing Web Portal. This is the fastest and most accurate way to file documents with the Board.
You do not need to send the Board a paper copy of documents that have been e-filed with the Board. If you need assistance with the E-Filing Web Portal, you can contact the Board directly using its 1-800 line or online inquiry form. The Board’s contact information can be found here.

When does the application to appeal need to be filed?

You have 60 calendar days from when you received the Minister’s overpayment decision to file an application to appeal.
The Board may accept a late application. When you file your application, you will also need to ask the Board for more time to file the application and tell it why your application is late. The Board will then decide whether to accept your application. You cannot ask for more time to file your application before you file your application.

What information do I need to provide?

Your application to appeal must be in writing and include the last three digits of your Social Insurance Number, your current contact information (address, telephone number, and email address) and detailed reasons why you are appealing. The Board may deny your application if you do not provide reasons. You should also include a copy of the decision you wish to appeal.
The appeal is “on the record” only. This means that no new information or evidence can be considered by the Board. The Board must decide the appeal based on the information that was before the Minister when they made their decision. Because the Board cannot consider new information, only arguments, it is unlikely that the Board will hold a hearing.
The Minister will provide the Board with a copy of any documents they relied on to make the decision being appealed.

What do I need to prove to be successful?

In the appeal, you can only argue questions of law and questions of jurisdiction. This means that, to be successful in your appeal, you must show that the Minister, in making their decision, made a mistake applying the law or made a decision that they did not have the jurisdiction to make.

A question of law is about the meaning of the law and how it is applied. An individual can appeal on a question of law if they believe the Minister misinterpreted the law, applied the wrong legal test, or applied the wrong section of the legislation. An example of a question of law in a WEPP overpayment appeal would be if the Minister did not include an amount owing to an employee for sales commissions in calculating the WEPP payment when the law allows it.
A question of jurisdiction is about what a decision maker can or cannot decide. An individual can appeal on a question of jurisdiction if they believe the Minister did not have the power to issue the decision they did. An example of a question of jurisdiction in a WEPP overpayment appeal would be if the Minister decided that a WEPP payment was not payable because they did not believe that the employer was insolvent.

Who is involved in the appeal?

Employee (You).
The Minister (if they choose to make submissions).
Industrial Relations Officer (IRO) – for more information on the role of the IRO, click here.  
A Board member or external adjudicator.

Can I be represented by someone else?

Yes, each party can be represented by the person of their choice.
The Board does not provide lawyers to assist parties.
The Industrial Relations Officer working on the file can help parties understand the process and what they need to do to prepare for a hearing, but they are impartial and do not provide legal or strategic advice as a lawyer would.
The Board recognizes that parties who represent themselves may not know the law or the process and may find it intimidating to appear before the Board. The Board will try to make the process as simple as possible given the nature of the dispute.
It is important that you attend any case management conferences that the Board organizes. These conferences are often used by the Board to explain the process and what the Board will expect from the parties at a hearing.

What happens after I file my application to appeal?

The Board will send the Minister a copy of your application to appeal. At the same time, it will ask the Minister for a copy of all the documents they used to make a decision on your request for review.
The Board will send you a letter confirming that it has received your application to appeal. It will send a copy of this letter to the Minister and to the trustee in bankruptcy or the receiver. This letter will also contain the Minister’s documents.
If you have hired a representative, such as a lawyer, this letter will be sent to them. It is the representative’s obligation to keep the party that they represent up to date.
The letter will:
- include your case file number;
- include a copy of all documents filed by the applicant (you) and the Minister; and
- tell you when you can file submissions.
The Minister may file submissions to respond to your application. Their submissions are called a response. If the Minister files a response, you will be given an opportunity to respond to those submissions in a reply. You should tell the Board in writing if you do not intend to file a reply.
Remember that no new evidence can be filed. The Board will base its decision on the material that the Minister had before them when they made the decision on the request for review.
IMPORTANT: If you need more time to file submissions, you need to write to the Board and ask it for more time. You need to tell the Board why you can’t meet the deadline. If the Board does not give you more time, it may not consider documents that are filed after that date.
The Board will ask an Industrial Relations Officer to answer any questions the parties have and help them settle the dispute if possible.

How do I file my documents, representations or evidence?

All complaints, applications, responses, replies, and supporting documents are filed using the Board’s E-Filing Web Portal. This is the fastest and most accurate way to file documents with the Board. It is not necessary to send the Board a paper copy of documents that have been e-filed with the Board.
Each party must send all other parties a copy of any document that they file with the Board. This can be done by email, by mail, by registered mail, by courier, or by hand.
When you file documents with the Board, you must tell the Board how and when you sent the documents that you are filing to the other parties.

Is the information in my file confidential?

Parties who file documents with the Board are participating in a public hearing. This means that the documents that are in the file are available to the public.
If a party is concerned about some of the information that they are filing with the Board being available to the public, that person can ask the Board to issue a confidentiality order. If the request is granted, the information that is protected will not be publicly available. For more information, you can refer to the Board’s Policy on Openness and Privacy or contact the Industrial Relations Officer responsible for your case.

Will there be Mediation?

Mediation is part of the Board’s process. It is recommended that parties attempt to mediate their dispute. Many of the Board’s files are settled at the mediation stage. Mediation allows the parties to settle the dispute on their terms and resolves the matter faster than if the file has to go to a Board member for a decision.
The Industrial Relations Officer assigned to your file will contact you to discuss the mediation options offered at the Board.
For more information on the mediation process, please click here.

Will there be a hearing?

Not necessarily. In many cases, the Board can make a decision based on the documents on file, without holding a hearing. This is part of the reason why written submissions should be as complete as possible. This is true even if the parties request a hearing.
In the case of a WEPP overpayment appeal, where the Board cannot consider new evidence but only the arguments of the parties, hearings are generally not held.
If the Board decides to hold a hearing, it will advise the parties of the date, time, and location of the hearing in advance, usually after holding a Case Management Conference.
For more information on the Board’s hearing process, please click here.

When will I get the decision?

The Board will notify you in writing of its decision.
The time that it takes the Board to issue a decision can vary depending on the complexity of the case.
All important decisions of the Board are published on the Decisions page.
You can consult the Board’s performance statistics for more information on the average time it takes the Board to issue a decision after an application is filed.
A copy of the Board’s decision will also be provided to the Labour Program.

What can the Board order if the application to appeal is successful?

The Board can:
- maintain the Minister’s decision (agree with it);
- rescind the Minister’s decision (overturn it); or
- vary the Minister’s decision (agree with parts of it and overturn or modify other parts of it).
If the Board varies or rescinds the decision and decides that you were not overpaid, or that you were overpaid but by a lower amount than the amount indicated in the Minister’s decision, the Board will indicate that you are no longer required to make the repayment or reduce the amount of the repayment.
The Board may also send the file back to the Minister for further investigation and to make a new decision.

Is the Board’s decision final?

The Board’s decisions are final and can only be reviewed in very specific circumstances.

If you believe that a Board decision is unreasonable, you can apply to the Federal Court of Appeal for judicial review; or
If you believe the Board has made a serious error and should correct its original decision, you can file an application for reconsideration.

In both cases, there is a strict 30 calendar day deadline to file your application from the date of the decision.  

Follow these links for more information on Applications for Reconsideration and Applications for Judicial Review. 

Quick links