Allocation of Earnings Corrected in Employment Insurance Appeal

Citation: BT  v  Canada Employment Insurance Commission , 2026  [NAME]  21 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Respondent: [redacted] Representative: [NAME] under appeal: General Division decision dated September 2, 2025 (*Corrigendum date October 23, 2025) GE-25-1851 and GE-25-1852 Tribunal member: [NAME] of hearing: In person Hearing date: January 7, 2026 Hearing participants: Appellant Appellant’s support person Respondent’s representative Decision date: January 16, 2026 File numbers: AD-25-615 and AD-25-692 On this page Decision Overview There were several preliminary matters Issues Analysis Fixing the error Conclusion Decision [ 1 ] B. T.’s appeal is allowed. The General Division made a legal error because it didn’t allocate his earnings to his Employment Insurance ( [NAME] ) claim. [ 2 ] I have given the decision the General Division should have given. The Claimant received wages from his employment while he was collecting benefits. Those wages will be allocated to the periods the services were performed. Overview [ 3 ] The Claimant applied for [NAME] benefits, and a benefit period was established effective May 1, 2022. [ 4 ] The Canada Employment Insurance Commission (Commission) decided that the Claimant had received earnings and allocated them to his claim. They also found that he had knowingly made false representations, imposed a penalty and violation. The Commission also decided that the Claimant voluntarily left his job without just cause. These decisions resulted in a significant overpayment. [ 5 ] The General Division found in favour of the Claimant on some issues, but not all of them. First, it found that the Claimant had received earnings while collecting benefits. Second, it decided that he hadn’t knowingly made any false representations to the Commission, so the penalty and violation imposed were removed. The General Division concluded that the Claimant had just cause to voluntarily leave his job, so he was not disqualified from getting benefits. Footnote 1 [ 6 ] I have found that the General Division made a legal error because it didn’t apply the law and allocate the Claimant’s earnings to his claim. To fix the error, I will give the decision the General Division should have given. The Claimant received wages, and those earnings need to be allocated to his claim based on section 36(4) of the Employment Insurance Regulations ( [NAME]). There were several preliminary matters A case conference was held, a second appeal file was added and both Appeal Division files were joined and heard together [ 7 ] The Commission issued two separate decisions on October 11, 2024, that decided the following: The Commission maintained that the Claimant got earnings and issued a penalty for a false representation in the first file Footnote 2 The Commission maintained that the Claimant voluntarily left his job without just cause, that he got earnings, issued a penalty for several false representations and a violation in the second file. Footnote 3 [ 8 ] The Claimant appealed the Commission’s decisions to the General Division of the Tribunal. Footnote 4 [ 9 ] The General Division heard both appeal files together and issued one decision addressing all the disputed issues. Footnote 5 A corrigendum was issued later to add the second appeal file number because it was missing from the cover page. Footnote 6 [ 10 ] The Claimant appealed to the Appeal Division and got permission to appeal. I scheduled a case conference on October 15, 2025, via teleconference to discuss the issues under appeal with the parties. Footnote 7 [ 11 ] The Claimant wrote to the Tribunal advising that he wasn’t going to attend the case conference because he was stressed and anxious. Footnote 8 I wrote back to the Claimant and explained that the case conference was an informal conversation to discuss the issues under appeal. I noted that it wasn’t mandatory to attend, but that if he chooses not to attend, it will proceed in his absence. Even so, I told him he would receive a written summary and the audio recording of the case conference. Footnote 9 [ 12 ] The case conference went ahead without the Claimant and only the Commission attended. A written summary and the audio recording were sent to the Claimant via courier. Footnote 10 I invited the Claimant to provide any comments after listening to the audio recording. Footnote 11 [ 13 ] The Claimant replied explaining that he has a few cases and it’s been confusing trying to understand all of them, including another one that he recently appealed to the Federal Court. Footnote 12 He also restated his earlier arguments about his mental health, unfairness in general, and that he didn’t intend to make any misrepresentations, among other things. Footnote 13 [ 14 ] Lastly, I added the second appeal file from the General Division and joined them at the Appeal Division. Footnote 14 Both appeals raise common questions and joining them wasn’t unfair to the parties. Footnote 15 Also, neither party objected to joining the files. I refused to remove myself from this appeal [ 15 ] The Claimant previously requested to have his case heard by a male Tribunal member. Footnote 16 I refused to recuse myself. An interlocutory decision was issued on November 13, 2025, explaining with reasons why it was denied. Footnote 17 [ 16 ] The Claimant followed up asking why his request wasn’t granted and I wrote back indicating that a decision had already been made about this issue and sent to him. Footnote 18 [ 17 ] At the Appeal Division hearing, the Claimant asked again why his request for a male Tribunal Member wasn’t granted. I explained to him that I had already decided this issue in an interlocutory decision, so it wasn’t up for further discussion. The Claimant’s second rescheduling request was denied [ 18 ] This case was originally scheduled to be heard in-person on November 26, 2025. Footnote 19 The Claimant asked to reschedule the hearing because his father was terminally ill. Footnote 20 I granted his rescheduling request, and the matter was rescheduled to January 7, 2026. Footnote 21 [ 19 ] The Claimant then made a second rescheduling request on December 27, 2025. Footnote 22 His request was denied, so the in-person hearing proceeded on January 7, 2026, as scheduled. Footnote 23 An interlocutory decision was issued on December 29, 2025, explaining with reasons why it was denied. Footnote 24 I asked the Claimant if he needed anything in order to fully participate [ 20 ] The Claimant previously told the Tribunal that he has Post-Traumatic Stress Disorder (PTSD) and provided a screenshot of an assessment from his psychologist. Footnote 25 I was also aware that he was under stress and feeling anxious because that was the reason he didn’t attend the case conference. [ 21 ] I wrote to the Claimant and pointed out that the Tribunal could provide an accommodation if he needs any. I provided a link to the Tribunal’s accommodation request form, which also included a hyperlink to the Tribunal’s Accessibility and Accommodation Policy. Footnote 26 This information was also noted in my interlocutory decision on November 13, 2025. Footnote 27 [ 22 ] At the in-person hearing, I asked the Claimant and his support person whether he needed any accommodation in order to fully participate in the hearing. Footnote 28 [ 23 ] The Claimant told me that he would like to finish the hearing early so that he could go back to work promptly for 1pm. Normally, I would allocate time for a break during a 2-hour hearing, but the Claimant restated that he didn’t need or want any breaks during the hearing. [ 24 ] The hearing naturally concluded after approximately 1 hour and 5 minutes. Even though the hearing finished before its allotted time, both parties got a full and fair opportunity to present their cases before the Appeal Division. I gave the Claimant permission to submit post-hearing arguments about remedy [ 25 ] I permitted the Claimant to submit post-hearing written arguments about the remedy (how to fix the error if there is one). I did this because he wasn’t sure how to respond when I asked him about the remedy at the hearing. Following that, I sent a letter in writing, explaining the remedy options and asking for a reply. Footnote 29 [ 26 ] The Claimant replied by the deadline and indicated that he would like me to substitute with my own decision (if there is an error). He also restated his arguments around forgiving the overpayment. Footnote 30 [ 27 ] These documents were shared with the Commission. It wasn’t necessary to ask the Commission to reply to them because they had already provided written and oral arguments at the hearing about errors and remedy. Footnote 31 Issues [ 28 ] The issues in this appeal are: a) Did the General Division make any errors when it decided the voluntary leave, false representations, penalty and violation issues? b) Did the General Division make an error of law when it failed to apply section 36(4) of the Employment Insurance Regulations and allocate the Claimant’s wages to his claim? c) Did the General Division make any errors when it decided that it couldn’t forgive or write-off the Claimant’s overpayment? d) If so, how should the error be fixed? Analysis [ 29 ] I can only consider certain types of errors. I have to focus on whether the General Division made a “reviewable error” (also known as the grounds of appeal). [ 30 ] The law says that I can consider four types of errors, and they include, jurisdictional errors, legal errors, factual errors, or a failure to follow a fair process. Footnote 32 The parties agree that the General Division didn’t make any errors when it decided in the Claimant’s favour on the voluntary leave, false representations, penalty and violation issues [ 31 ] At the Appeal Division hearing, the Claimant and Commission agreed that the General Division didn’t make any reviewable errors when it decided the following. [ 32 ] The General Division decided in the Claimant’s favour on the following issues: That the Claimant voluntarily left his job on August 20, 2022 Footnote 33 That he had just cause to voluntarily leave his job because he had an obligation to care for [NAME] who had been diagnosed with cancer Footnote 34 That he had no reasonable alternatives, but to leave his job Footnote 35 That he didn’t knowingly make any false representations to the Commission by not declaring his wages because he was dealing with memory lapses at the time, including mental health issues and because of that, a penalty (and violation) shouldn’t have been imposed. Footnote 36 [ 33 ] I agree with the parties, and I find no reviewable errors made by the General Division when it decided the voluntary leave, false representations, penalty and violation issues. It correctly stated and applied the law in its decision on these issues. Footnote 37 Its key factual findings are consistent with the evidence. It didn’t ignore or overlook any important evidence. [ 34 ] And it only decided the issues it had the authority to decide. I also see no natural justice issues, and none were specifically raised by the parties in relation to the above. [ 35 ] I will now decide whether the General Division made any other errors in its decision. To be more specific, I will be looking at the remaining issues in dispute: earnings and allocation. Footnote 38 The General Division made an error of law because it didn’t allocate the Claimant’s earnings to his claim [ 36 ] Section 36(4) of the [NAME] says that earnings that are payable to a claimant under a contract of employment for the performance of services shall be allocated to the period in which the services were performed. [ 37 ] The Commission’s written arguments before the General Division indicate that the Claimant got wages from his employer, which constituted earnings based on s. 35(2)(a) of the [NAME]. They allocated the Claimant’s wages to the weeks the services were performed based on s. 36(4). Footnote 39 [ 38 ] The Commission argues that the General Division failed to consider the applicability of s. 36(4) and whether they had properly allocated his earnings in accordance with that provision. Footnote 40 The Claimant wasn’t sure whether the General Division made a legal error on this issue. [ 39 ] The General Division found it was undisputed that the Claimant had received earnings in the form of wages from his employer while he was in receipt of [NAME] benefits. Footnote 41 It correctly stated that s. 35(2) of the EIRegulations is the “entire income of a Claimant arising out of any employment.” Footnote 42 It concluded that the Claimant received earnings while collecting benefits, so he would end up with an overpayment. Footnote 43 [ 40 ] The General Division failed to make any findings on how the Claimant’s earnings/wages should be allocated. [ 41 ] I find that the General Division made a legal error because once it determined that the Claimant received wages based on s. 35(2), then it needed to decide how the earnings would be allocated based on s.

36. Footnote 44 In this case, the Claimant got wages, so they needed to be allocated based on s. 36(4) of the [NAME], to the period in which the services were performed. The General Division didn’t make any errors when it decided that it couldn’t forgive or write-off the overpayment [ 42 ] The Claimant argued that the Tribunal should forgive the overpayment. He has compelling circumstances related to his finances and mental health struggles. [ 43 ] The Commission argued that neither the General Division nor the Appeal Division has the authority to forgive or write-off the overpayment. Only the Commission has the power to write-off an overpayment. Footnote 45 [ 44 ] The law says that the Tribunal has no authority to write off the overpayment. Footnote [ADDRESS] has also confirmed that writing off an overpayment debt is solely within the jurisdiction of the Commission. Footnote 47 [ 45 ] The General Division has to follow the law and binding case law. So, it correctly stated in its decision that it couldn’t forgive (in other words, write-off) the overpayment. Footnote 48 Fixing the error [ 46 ] There are two options for fixing an error. I can send the appeal back to the General Division for reconsideration or I can give the decision the General Division should have made. Footnote 49 If substituting, I can make any necessary findings of fact. Footnote 50 [ 47 ] The parties agree that I should substitute and give the decision the General Division should have given. [ 48 ] I am going to fix the error by making the decision the General Division should have made. The parties had a full and fair opportunity to present evidence and make arguments at the General Division. The record is also complete. The Claimant got earnings that need to be allocated to his claim [ 49 ] The Claimant established an initial claim for benefits from May 1, 2022. Footnote 51 It is undisputed that the Claimant got wages from various employers during his claim while he was in receipt of benefits. [ 50 ] The law says that all earnings have to be allocated to certain weeks. Footnote 52 As noted above, earnings for the performance of services are allocated to the weeks when the work is performed (s. 36(4) of the [NAME]). Footnote 53 [ 51 ] I acknowledge that the Claimant has provided reasons to explain why he didn’t declare all of his wages to the Commission. However, that’s already been addressed by the General Division (voluntary leave, false representations, penalty and violation were found in his favour as noted above in paragraphs 31–34). The Claimant’s employment at “X” from May 22, 2022 (file AD-25-692) [ 52 ] The evidence shows that the Claimant was employed by X from the week beginning on May 22, 2022. Footnote 54 It also shows that the Claimant received the following wages from his employment at X from May 22, 2022, to August 13, 2022. Footnote 55 The Claimant did not dispute this. Footnote 56 Week Amount May 22 to May 28, 2022 $696.96 May 29 to June 4, 2022 $1161.60 June 5 to June 11, 2022 $871.20 June 12 to June 18, 2022 $1,161.60 June 19 to June 25, 2022 $696.96 June 26 to July 2, 2022 $958.32 July 3 to July 9, 2022 $1,160.60 July 10 to July 16, 2022 $1,160.60 July 17 to July 23, 2022 $464.64 July 24 to July 30, 2022 $1,074.48 July 31 to August 6, 2022 $929.28 August 7 to August 13, 2022 $232.32 [ 53 ] I find that the Claimant got wages from his employment at X for the period from May 22, 2022, up-to August 13, 2022. His wages are income arising from his employment, based on section 35(2)(a) of the [NAME]. [ 54 ] I also find that those earnings must be allocated starting the week of May 22, 2022, based on section 36(4) of the [NAME] because that’s when the services were performed. The Claimant’s employment at “Y” from August 7, 2022 (file AD-25-692) [ 55 ] The evidence shows that the Claimant was briefly employed by Y from the week beginning on August 10, 2022, to the last day paid was August 20, 2022. Footnote 57 The Claimant did not dispute this. Footnote 58 [ 56 ] I find that the Claimant got wages from his employment at Y, totalling $2,007.25 from August 7, 2022, to August 20, 2022. Footnote 59 His wages are income arising from employment, based on section 35(2)(a) of the [NAME]. [ 57 ] I also find that those earnings must be allocated starting the week of August 7, 2022, based on section 36(4) of the [NAME] because that’s when the services were performed. The Claimant’s employment at “Z” from December 12, 2022 (file AD-25-615) [ 58 ] The evidence shows that the Claimant was employed by Z from December 12, 2022, to his last day paid May 26, 2023. Footnote 60 The Claimant didn’t dispute that he got wages from Z. Footnote 61 [ 59 ] I find that the Claimant got wages from his employer totalling $1,097.71 for the week of December 11, 2022, to December 17, 2022, which was not disputed. Footnote 62 His wages are income arising from employment, based on section 35(2)(a) of the [NAME]. [ 60 ] I also find that those earnings must be allocated starting the week beginning December 11, 2022, based on section 36(4) of the [NAME] because that’s when the services were performed. The Commission said that a write-off decision had already been made [ 61 ] The Commission noted that a write-off decision had already been made in the Claimant’s file. It wasn’t clear whether the Claimant had received that decision yet. [ 62 ] From a practical standpoint, the Commission’s representative also noted that the Claimant’s overpayment was significantly reduced because some issues at the General Division were decided in his favour. It noted that the Claimant wouldn’t see the overpayment reduction immediately as it might take a few statements cycles before it shows. [ 63 ] To be clear, the Tribunal has no authority to forgive or write-off the overpayment or follow up about this issue. But the Claimant still has other options. He is free to ask the Commission for a copy of the write-off decision and related file documents such as a written breakdown of the overpayment and calculations. He can also appeal the write-off decision to the Federal Court if he chooses to do so. And he can also discuss repayment arrangements with the Canada Revenue Agency. Conclusion [ 64 ] The General Division made an error of law by not allocating the Claimant’s earnings to his claim based on s.36(4) of the [NAME]. [ 65 ] I have substituted with my own decision. The Claimant got wages from his employers while he was collecting [NAME] benefits for the same period. His wages are earnings based on section 35(2)(a) of the [NAME]. They must be allocated to the period the services were performed based on section 36(4) of the [NAME]. He remains liable to repay any remaining overpayment he has as a result of this decision. Footnotes Footnote 1 See General Division decision at pages ADN1A-1 to ADN1A-10. Return to footnote 1 referrer Footnote 2 See page GD3-43 (related to file AD-25-615). Return to footnote 2 referrer Footnote 3 See pages GD3A-31 and GD3B-109 to GD3B-110 (related to file AD-25-692). Return to footnote 3 referrer Footnote 4 See General Division appeal files GE-25-1851 and GE-25-1852. Return to footnote 4 referrer Footnote 5 There was some procedural history with one of these files. It had been previously heard at the General Division (file GE-24-3793, decision issued February 20, 2025) and was appealed to the Appeal Division (file AD-25-209, decision issued June 9, 2025) and returned to the General Division for reconsideration. Return to footnote 5 referrer Footnote 6 See pages ADN1A-1 to ADN1A-10. Return to footnote 6 referrer Footnote 7 See pages AD0-1 to AD0-2. Return to footnote 7 referrer Footnote 8 See pages ADN5-1 and ADN6-1 to ADN6-3. Return to footnote 8 referrer Footnote 9 See pages ADN6-1 to ADN6-3. Return to footnote 9 referrer Footnote 10 See case conference summary dated October 15, 2025. Return to footnote 10 referrer Footnote 11 See pages ADN10-1 to ADN10-3. Return to footnote 11 referrer Footnote 12 The Federal Court issued its decision on December 11, 2025, see [NAME]  v  Canada (Attorney General), 2025  FC  1958. Return to footnote 12 referrer Footnote 13 See page ADN11-1. Return to footnote 13 referrer Footnote 14 See Appeal Division file AD-25-692 related to GE-25-1851 and Tribunal letter dated November 15, 2025, joining the files. Return to footnote 14 referrer Footnote 15 See section 25 of the Social Security Tribunal Rules of Procedure. Return to footnote 15 referrer Footnote 16 See pages ADN8-1 and ADN9-1. Return to footnote 16 referrer Footnote 17 See Interlocutory decision issued November 13, 2025. Return to footnote 17 referrer Footnote 18 See pages ADN23-1 and ADN25-1 to ADN25-3. Return to footnote 18 referrer Footnote 19 See pages ADN0A-1 to ADN0A-3. Return to footnote 19 referrer Footnote 20 See pages ADN13-1, ADN14-1 to ADN14-3, ADN15-1. Return to footnote 20 referrer Footnote 21 See pages ADN0C-1 to ADN0C-3 and ADN16-1 to ADN16-3, ADN17-1, ADN18-1 to ADN18-3, ADN19-1, ADN20-1, ADN21-1. Return to footnote 21 referrer Footnote 22 See page ADN26-1. Return to footnote 22 referrer Footnote 23 See pages ADN27-1 to ADN27-3. Return to footnote 23 referrer Footnote 24 See pages ADN13-1, ADN14-1 to ADN14-3, ADN15-1, ADN16-1 to ADN16-3, ADN17-1, ADN18-1 to ADN18-3, ADN19-1, ADN20-1 and ADN21-1. Return to footnote 24 referrer Footnote 25 See pages ADN9-1 and ADN22-2 to ADN22-6. Return to footnote 25 referrer Footnote 26 See pages ADN6-1 to ADN6-3. Return to footnote 26 referrer Footnote 27 See Interlocutory decision dated November 13, 2025, at pages 3–4. Return to footnote 27 referrer Footnote 28 The Tribunal has an Accessibility and Accommodation Policy, which is found here: https://[NAME]-tss.gc.ca/en/decisions-laws-rules-and-policies/accessibility-and-accommodation-policy. Return to footnote 28 referrer Footnote 29 See pages ADN3-1 to ADN3-3. Return to footnote 29 referrer Footnote 30 See page ADN31-1. Return to footnote 30 referrer Footnote 31 See pages ADN12-1 to ADN12-6. Return to footnote 31 referrer Footnote 32 See section 58(1) of the Department of Employment and Social Development Act ( DESD Act). Return to footnote 32 referrer Footnote 33 See paragraph 14 of the General Division decision. Return to footnote 33 referrer Footnote 34 See paragraph 25 of the General Division decision. Also, see section 29(c)(v) of the [NAME] Act. Return to footnote 34 referrer Footnote 35 See paragraph 26 of the General Division decision. Return to footnote 35 referrer Footnote 36 See paragraphs 38–39 of the General Division decision. Also, see sections 7.1(1) and 38 of the [NAME] Act. Return to footnote 36 referrer Footnote 37 See paragraphs 15–17, 25, 28, 31 and 33 of the General Division decision. Return to footnote 37 referrer Footnote 38 See section 35 and 36 of the Employment Insurance Regulations ( [NAME]). Return to footnote 38 referrer Footnote 39 See pages GD4-1 and GD4-4. Return to footnote 39 referrer Footnote 40 See page ADN12-5. Return to footnote 40 referrer Footnote 41 See paragraphs 27–30 of the General Division decision. Return to footnote 41 referrer Footnote 42 See paragraph 28 of the General Division decision. Return to footnote 42 referrer Footnote 43 See paragraph 40 of the General Division decision. Return to footnote 43 referrer Footnote 44 See section 58(1)(b) of the DESD Act. Return to footnote 44 referrer Footnote 45 See section 56 of the [NAME]. Return to footnote 45 referrer Footnote 46 See section 112.1 of the  [NAME]  Act. Return to footnote 46 referrer Footnote 47 See  Canada (Attorney General)  v   [NAME] , 2005  FCA  440 at paragraph 16. Return to footnote 47 referrer Footnote 48 See paragraph 41 of the General Division decision. Return to footnote 48 referrer Footnote 49 See section 59(1) of the  DESD  Act. Return to footnote 49 referrer Footnote 50 See section 64(1) of the  DESD  Act. Return to footnote 50 referrer Footnote 51 See page GD3B-90. Return to footnote 51 referrer Footnote 52 See sections 35 and 36 of the [NAME]. Return to footnote 52 referrer Footnote 53 See section 36(4) of the [NAME]. Return to footnote 53 referrer Footnote 54 See Record of Employment ( ROE ) at pages GD3B-15 to GD3B-16. Return to footnote 54 referrer Footnote 55 See ROE at pages GD3B-15, payroll information at pages GD3B-70 to GD3B-71, GD3B-74 and GD3B-77 to GD3B-78. Return to footnote 55 referrer Footnote 56 See pages GD3B-72 to GD3B-73 and GD3B-75. Return to footnote 56 referrer Footnote 57 See ROE at pages GD3B-17 to GD3B-18. Return to footnote 57 referrer Footnote 58 See pages GD3B-72 to GD3B-73. Return to footnote 58 referrer Footnote 59 See ROE at pages GD3B-17 and pages GD3B-77 to GD3B-78. Return to footnote 59 referrer Footnote 60 See pages GD3-14 to GD3-15. Return to footnote 60 referrer Footnote 61 See page GD3-26. Return to footnote 61 referrer Footnote 62 See ROE , box “24” at pages GD3-14 to GD3-15.and GD3-25 to GD3-27 and GD3-37 to GD3-38. Return to footnote 62 referrer