Appeal Allowed: Benefit Period Starts on Employment End Date

[TRANSLATION] Citation: QI  v  [NAME] Commission , 2026  SST  33 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Respondent: [redacted] Representative: [NAME] Decision under appeal: General Division decision dated June 17, 2025 (GE-25-635) Tribunal member: [NAME] of hearing: Videoconference Hearing date: December 15, 2025 Hearing participants: Appellant Respondent’s representative Decision date: January 20, 2026 File number: AD-25-492 On this page Decision Overview Issues Analysis Remedy Conclusion Decision [ 1 ] The appeal is allowed. The General Division made an error of law. So, I gave the decision that should have been given. The Claimant’s benefit period starts on September 15, 2024. Overview [ 2 ] The Claimant, Q. I., applied for Employment Insurance ( [NAME] ) regular benefits on September 15, 2024. Footnote 1 He said that he had been let go. He wrote that his last day of work was on September 4, 2024. He wanted his benefit period to start on October 20, 2024. He acknowledged having received money from his employer after September 4, 2024, but not having received anything from it after October 17, 2024. Footnote 2 [ 3 ] The [NAME] Commission (Commission) found that the Claimant’s interruption of earnings happened only on December 1, 2024. Footnote 3 Because of this, the Commission established his benefit period as of December 1, 2024. Footnote 4 [ 4 ] The Claimant asked for that decision to be reconsidered. The Commission upheld its decision. [ 5 ] The Claimant appealed this decision to the General Division. The General Division dismissed his appeal. It decided that the Claimant’s paid employment ended on November 28, 2024. Footnote 5 There was no interruption of earnings before that. So, the benefit period had to start on December 1, not on October 20, 2024. Footnote 6 [ 6 ] The Claimant asked for permission to appeal the General Division decision. The Appeal Division gave permission to appeal. Footnote 7 Issues [ 7 ] I have to decide the following issues: a) Did the General Division make an error of law by applying the legal test for antedate to the Claimant’s initial claim for benefits? b) If so, what is the appropriate remedy? Analysis [ 8 ] The Appeal Division has limited powers to intervene. I can intervene only if the General Division made one of the following errors: It breached the principles of procedural fairness. It refused to use its jurisdiction or it exceeded it. It made an error of law. It made an important error of fact. Footnote 8 The General Division made an error of law by applying the legal test for antedate to the Claimant’s initial claim for benefits [ 9 ] The General Division found that the Claimant had asked for an antedate. Footnote 9 This was because he wanted his benefit period to start on October 20, 2024, but the Commission had started it on December 1, 2024. [ 10 ] But the Claimant wasn’t asking the General Division to go back in time and have his benefit period start before the day he applied. He initially applied for [NAME]  benefits on September 15, 2024. This was well before the day he wanted his benefit period to start—that is, on October 20, 2024. [ 11 ] I find that the Claimant never asked for an antedate. An antedate request is made when you make a claim for benefits after the day when you first qualified to apply, and you want the claim to be considered as having been made earlier. The Employment Insurance Act  ( [NAME]  Act) says that an initial claim for benefits made after the day when you first qualified to make it will be considered as having been made on an earlier day. This is if you show that you qualified for benefits, and that you had good cause for the delay. Footnote 10 There has to be good cause throughout the period beginning on the earlier day and ending on the day when the initial claim was made. [ 12 ] It is an error of law to characterize the Claimant’s request to have his claim for benefits start on October 20, 2024, as an antedate request. He wanted the General Division to have his benefit period start earlier. But he never asked for his benefit period to start before September 15, 2024—that is, when he initially applied for benefits. [ 13 ] The General Division didn’t correctly identify the legal issue in this case. It acknowledged that the Claimant wasn’t late in applying. Footnote 11 So, the General Division should have found that it wasn’t an antedate request. Even though the Commission analyzed the case from the perspective of an antedate request, it should have properly characterized the legal issue in its de novo (new) analysis of the case. [ 14 ] The General Division should have looked at when the benefit period was to start, under section 10(1) of the [NAME]  Act. The General Division noted that the day the interruption of earnings happened had to be established, but in the context of analyzing an antedate request. The General Division had to determine the day the interruption of earnings happened by applying section 14 of the Employment Insurance Regulations (Regulations). It didn’t do so. [ 15 ] Since the General Division made an error of law, I can intervene. Remedy [ 16 ] At the hearing, the Claimant said that he wanted me to give the decision that should have been given in accordance with the law. [ 17 ] The Commission’s representative initially argued that I should send the matter back to the General Division for reconsideration. But at the end of the hearing, he said that I could also give the decision that should have been given. The Commission’s representative said that I could have the benefit period start on September 15, 2024. [ 18 ] Both parties agreed that I should give the decision that should have been given. The Department of Employment and Social Development Act allows me to substitute my decision for that of the General Division and to decide any question of law or fact. Footnote 12 I find that there is enough evidence on file for me to decide the issue of when the interruption of earnings happened and when the benefit period started. I can’t accept the [NAME] decision as evidence [ 19 ] After the General Division gave its decision, the Commission asked the Canada Revenue Agency ( [NAME] ) to give a decision on when the Claimant’s employment ended. [ 20 ] The [NAME] gave a decision on this matter on November 4, 2025. [ 21 ] But this decision is new evidence. The Appeal Division generally can’t accept new evidence. I asked the parties for their arguments on this issue. [ 22 ] The Claimant said that he agreed with the [NAME] decision and would not challenge it. The Commission said that it found the [NAME] decision to be new evidence. [ 23 ] The Appeal Division generally can’t accept new evidence. But the Appeal Division might exceptionally consider new evidence if the evidence: gives general background information relates to procedural defects shows a complete absence of evidence Footnote 13 [ 24 ] In this case, the [NAME] decision doesn’t fall under any of the exceptions mentioned. So, I can’t accept it as evidence. But the decision could help the Commission in enforcing this decision. The benefit period starts on September 15, 2024 [ 25 ] The Claimant’s benefit period has to start on September 15, 2024. [ 26 ] The [NAME]  Act says that a benefit period starts on the later of the Sunday of the week the interruption of earnings happens, or the Sunday of the week the initial claim for benefits is made. Footnote 14 [ 27 ] So, it is important to establish when the interruption of earnings happened to determine what event occurred later: the day there was the interruption of earnings or the day the claim for benefits was made. This is necessary to find when the benefit period should start. The interruption of earnings happened on September 4, 2024 [ 28 ] The Regulations define an interruption of earnings. Footnote 15 An interruption of earnings happens when the following three conditions are met: The Claimant is laid off or separated from his employment. The Claimant no longer works for that employer for a period of at least seven days. No earnings from that employment are payable or allocated to the Claimant for a period of at least seven days. [ 29 ] The evidence on file before the General Division shows that the Claimant lost his job on September 4, 2024. Footnote 16 In fact, his employer wrote to him on August 21, 2024, saying that it was his last day of work. The letter told him that his job would officially end on September 4, 2024. The letter also said that he would receive his wages between August 21, 2024, and September 4, 2024—that is, the day his job ended. [ 30 ] In that letter, the employer also told the Claimant that it would pay him either wages under an income-protection plan or a lump sum because his job ended. The Claimant refused to sign the employer’s letter, so he didn’t choose either payment method. But the evidence shows that he received money for many weeks after that, at least until October 17, 2024. Footnote 17 So, I find that, on a balance of probabilities, he received wages after his job ended under the [NAME]. [ 31 ] The fact that the Claimant continued to receive wages from his employer after his job ended doesn’t prevent me from finding that the interruption of earnings happened on September 4, 2025. In fact, the recent Federal Court of Appeal decision in [NAME] 18 says that sections 35(6) and 36(9) of the Regulations have the effect of removing from earnings, for the purposes of section 14, the continued salary payable to a claimant as part of their severance package. [ 32 ] At the hearing, the Commission’s representative argued that this decision doesn’t apply to the Claimant’s case. He argued that the Federal Court of Appeal simply said that it was reasonable for the General Division to characterize the type of earnings the Claimant received in [NAME] as severance pay. I find this reading of the Federal Court of Appeal decision to be reductive. [ 33 ] In [NAME] , the Attorney General of Canada recognized that the wages paid to [NAME] as severance pay after his job ended were excluded from earnings to establish an interruption of earnings. Footnote 19 So, the Federal Court of Appeal decided that, if earnings are paid because of a separation from employment, sections 35(6) and 36(9) of the Regulations exclude that severance pay from earnings to establish an interruption of earnings. Footnote 20 [ 34 ] There are close factual parallels between [NAME] and the Claimant’s case. [NAME] lost his job on July 15, 2021. He then continued to receive wages and health insurance benefits for many months until October 10, 2021. The Commission had found that the interruption of earnings happened only on October 10, 2021, since the Claimant continued to receive wages until that day. But the General Division overturned that decision. It found that the interruption of earnings had instead happened on July 15, 2021, when the Claimant’s job ended. The Appeal Division dismissed the Commission’s appeal. The Federal Court of Appeal later also dismissed the Commission’s application for judicial review. [ 35 ] I have to apply this binding decision from the Federal Court of Appeal. The Federal Court of Appeal decided how sections 35(6) and 36(9) of the Regulations are to be interpreted. Wages paid as severance pay aren’t counted when applying section 14 of the Regulations. [ 36 ] The Claimant, in this case, lost his job on September 4, 2024. He continued to receive wages as severance pay after that, like [NAME]. I find that the wages paid to the Claimant in this case, under the [NAME], is earnings as referred to in section 36(9) of the Regulations. This means that the interruption of earnings happened on September 4, 2024, even though he later received wages as severance pay under an [NAME]. [ 37 ] Another recent Federal Court decision also supports this interpretation. In [NAME]  v  Canada (Attorney General) , Footnote 21 the Claimant argued that his interruption of earnings happened only after he had been paid one month of wages as severance pay. The Federal Court rejected this proposal, finding that it was contrary to the Regulations. The Federal Court cited [NAME] . It noted that sections 35(6) and 36(9) of the Regulations clearly say that any earnings paid because of a separation from employment aren’t included in the earnings for the purpose of determining when the interruption of earnings happened. [ 38 ] So, I find that the Claimant’s interruption of earnings happened on September 4, 2024. This is because, as of that day, the employer had terminated his job, he didn’t work for his employer, and he didn’t receive any earnings for seven consecutive days. The benefit period has to start on September 15, 2024 [ 39 ] Since the Claimant applied for benefits on Sunday, September 15, 2024, I have to start his benefit period on that day. This is because it comes after his interruption of earnings. Footnote 22 [ 40 ] The Commission disagrees that the interruption of earnings happened on September 4, 2024. But it did agree to the Claimant’s benefit period starting on September 15, 2024. [ 41 ] At the hearing, the Commission’s representative told the Claimant that the Commission will consider the wages he received as of September 15, 2024, and that if any amounts are to be allocated, they will be. The Commission is responsible for carrying out this exercise after my decision. [ 42 ] I only had before me the appeal of the General Division decision. The General Division decided when the benefit period would start. I can’t award the Claimant any damages [ 43 ] At the hearing, the Claimant said that he knew the Appeal Division could not award damages. He still argued that the doctrine of legitimate expectations applies to his case. [ 44 ] The Claimant refers to a conversation he allegedly had with a Service Canada agent on October 16, 2024. He alleges that he asked her whether [NAME] would compensate him for any consequences resulting from the decision to suspend his [NAME]  benefits. He says the agent told him that [NAME] would assess the consequences and compensate him for them. Footnote 23 [ 45 ] It should be noted that the Commission had initially decided that the Claimant wasn’t available for work. Later, on reconsideration, the Commission changed its decision and found that he was available for work. So, that reconsideration decision wasn’t before the General Division, since it was in his favour. [ 46 ] First, I note that there is no record of the call the Claimant mentioned in the telephone notes that Service Canada kept in his file. But I can’t decide whether that conversation happened or not. This is because I don’t necessarily have the Claimant’s entire administrative file, especially regarding the issue of his availability for work. [ 47 ] But even if I assume the Claimant was told that [NAME] could compensate him, wrong information that government employees give can’t allow the Tribunal to act contrary to the law. Footnote 24 In fact, the Federal Court has held that “[a]ny commitment which the Commission may give whether in good or bad faith, to act in a way other than that prescribed by the law would be void and contrary to public order.” Footnote 25 [ 48 ] In addition, the doctrine of legitimate expectations applies only to procedural rights. The Supreme Court of Canada has said that the doctrine of legitimate expectations can’t create substantive rights. Footnote 26 It can only create the right to make submissions or to be consulted. It doesn’t limit the scope of the decision given after those submissions. The doctrine of legitimate expectations can’t be invoked to circumvent or limit the application of the law. Footnote 27 The government may be held to clear and unambiguous representations about an administrative process, provided those representations are procedural in nature and don’t conflict with the decision maker’s statutory duty. Footnote 28 In the Claimant’s case, he had the opportunity to speak before the General Division and to submit all the evidence he wanted. So, there is no procedural breach for me to remedy. Conclusion [ 49 ] The appeal is allowed. The General Division made an error of law. So, I gave the decision that should have been given. The Claimant’s benefit period starts on September 15, 2024. Footnotes Footnote 1 See the application for benefits at GD3-15. Return to footnote 1 referrer Footnote 2 See the Claimant’s reports at GD3-21. Return to footnote 2 referrer Footnote 3 See the reconsideration request at GD3-29. Return to footnote 3 referrer Footnote 4 See the notice of decision at GD3-26. Return to footnote 4 referrer Footnote 5 See para 3 of the General Division decision at AD1-11. Return to footnote 5 referrer Footnote 6 See para 2 of the General Division decision at AD1-11. Return to footnote 6 referrer Footnote 7 See the Appeal Division decision giving permission to appeal. Return to footnote 7 referrer Footnote 8 See section 58(1) of the Department of Employment and Social Development Act  ( DESD  Act). Return to footnote 8 referrer Footnote 9 See paras 39 and 40 of the General Division decision at AD1-18. Return to footnote 9 referrer Footnote 10 See section 10(4) of the Employment Insurance Act  ( [NAME]  Act). Return to footnote 10 referrer Footnote 11 See para 42 of the General Division decision at AD1-19. Return to footnote 11 referrer Footnote 12 See the powers that sections 59(1) and 64 of theDESD Actgive to the Appeal Division. Return to footnote 12 referrer Footnote 13 [NAME]  v  Canada (Attorney General), 2022  FCA  157 at para 37. Return to footnote 13 referrer Footnote 14 See section 10(1) of theEI Act. Return to footnote 14 referrer Footnote 15 See section 14(1) of the Employment Insurance Regulations . Return to footnote 15 referrer Footnote 16 See the termination letter at GD8-15. Return to footnote 16 referrer Footnote 17 See the Claimant’s reports at GD3-21 and the cheques at GD8-52, GD15-21, and GD15-24. Return to footnote 17 referrer Footnote 18 See the Federal Court of Appeal decision in Canada (Attorney General)  v  [NAME] , 2023  FCA  161 at para 10. Return to footnote 18 referrer Footnote 19 See Canada (Attorney General)  v  [NAME] , 2023  FCA  161 at para 10. Return to footnote 19 referrer Footnote 20 See Canada (Attorney General)  v  [NAME] , 2023  FCA  161 at para 11. Return to footnote 20 referrer Footnote 21 [NAME]  v  Canada (Attorney General ), 2025  FC  1565 at paras 27 to 29. Return to footnote 21 referrer Footnote 22 See section 10(1) of theEI Act. Return to footnote 22 referrer Footnote 23 See the Claimant’s arguments at AD3-14 and GD8-22. Return to footnote 23 referrer Footnote 24 See the Federal Court of Appeal decision in [NAME]  v  [NAME] and Immigration Commission , A-684-85. Return to footnote 24 referrer Footnote 25 See the Federal Court of Appeal decision in [NAME]  v  [NAME] and Immigration Commission , A-684-85. Return to footnote 25 referrer Footnote 26 See the Supreme Court of Canada decision in [NAME]  v  Canada (Public Safety and Emergency Preparedness) , 2013  SCC  36 at para 97. Return to footnote 26 referrer Footnote 27 See the Federal Court decision in [NAME]  v  Canada (Citizenship and Immigration) , 2025  FC  1543 at para 28. Return to footnote 27 referrer Footnote 28 See the Supreme Court of Canada decision in Canada (Attorney General)  v  [NAME] , 2011  SCC  30 at para 68. Return to footnote 28 referrer