"On January 21, 2003, the Commission acknowledged to Mr. Roby that his benefits had been deposited in error to the CIBC account and that the Commission would accept full responsibility for not forwarding the funds to him. At that time, the Commission assured Mr. Roby that they would “take care of it from their end”, and apologized for the inconvenience. The next day, the Commission sent Mr. Roby a cheque payable to him in the amount of $5,426. Mr. Roby accepted the cheque and cashed it." (Para. 7)
The EI Commission demanded the double payment back; though Mr. Roby said he never got the money because the trustee took it and he reminded the Commission that it had recognized its error and said it would fix it. 10 years later, after the Commission had seized from Mr. Roby all or part of the double payment, in this decision the FCA ordered the money returned.
The normal rule is that "A person who has received or obtained a benefit payment to which the person is disentitled, or a benefit payment in excess of the amount to which the person is entitled, shall without delay return the amount ..." (Employment Insurance Act, s. 44.)
FCA decisions had also held that people in circumstances like Mr. Roby's
should repay the second amount. (Paras. 15-18) Where the EI Commission in error paid an amount to the claimant, even where the claimant didn't get the money because it was seized from the account under a judgement creditor's garnishment order. According to the FCA, Roby's case was different because under his bankruptcy, he never got the benefit of the EI payment; the trustee took it. Unlike the case of a garnishment order, where the payment satisfies an outstanding debt, the FCA said that in Roby's case, as a first-time bankrupt, he would not need to pay his debts even without the EI double-payment. (Para. 18.)
The FCA noted that Mr. Roby's case might have been different had the EI Commission not promised him "in 2003 that they would “take care of [their mistake] from their end”. (Para. 20)
Overall, one can't rely on this case much. The rule still stands: if you get more EI than you are entitled to, you must repay it.
This case also has an interesting comment about pro bono counsel's right to ask for costs (even though a pro bono lawyer works for free). The FCA relied on an Ontario Court of Appeal decision (1465778 Ontario Inc. v. 1122077 Ontario Ltd.) for the principles that:
"... 'allowing pro bono parties to be subject to the ordinary costs consequences that apply to other parties has two positive consequences: (1) it ensures that both the non-pro bono party and the pro bono party know that they are not free to abuse the system without fear of the sanction of an award of costs; and (2) it promotes access to justice by enabling and encouraging more lawyers to volunteer to work pro bono in deserving cases.' " (Para. 24.)
See Roby v. Canada (Attorney General) (2013 FCA Sharlow)