Appeal Allowed: Commission's Consideration of Reconsideration Request Upheld

Citation: SE   v   Canada Employment Insurance Commission , 2026 [NAME] 254 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Respondent: [redacted] Representative: [NAME] Decision under appeal: General Division decision dated February 18, 2026 (GE-25-3499) Tribunal member: [NAME] of hearing: Videoconference Hearing date: May 15, 2026 Hearing participants: Appellant Respondent Respondent’s representative Decision date: June 10, 2026 File number: AD-26-116 On this page Decision Overview Issues Analysis Conclusion Decision [ 1 ] The appeal is allowed. [ 2 ] The General Division made an error of law when it decided the Canada Employment Insurance Commission (Commission) hadn’t exercised its discretion judicially (fairly). [ 3 ] I have made the decision that should have been made. [ 4 ] The Commission acted judicially (fairly) when it decided not to give the Claimant more time to request a reconsideration. [ 5 ] I cannot interfere with the Commission’s decision. So, the Claimant doesn’t get more time to request a reconsideration. Overview [ 6 ] The Claimant, S. E., was paid regular Employment Insurance ( EI ) benefits. [ 7 ] On October 30, 2024, the Commission decided that the Claimant could not be paid EI benefits starting March 5, 2023, because he had voluntarily left his employment with DJ Gosselin Personnel on March 9, 2023, and that this was not his only reasonable alternative. Footnote 1 [ 8 ] In addition, the Commission decided that the Claimant had not declared any earnings he received from DJ [NAME] between March 5, 2023, and June 18, 2023. The Claimant was told that he had to repay the benefits he was not entitled to. [ 9 ] The Commission also decided the Claimant had knowingly made false representations and imposed a penalty of $2,923 for making five false representations. The Commission also issued a notice of subsequent violation. [ 10 ] The Claimant asked the Commission to reconsider its decision. The Commission received the Claimant’s request for reconsideration on October 6, 2025. Footnote 2 Because it was late, the Commission had to decide if it could give the Claimant more time. The Commission decided that the reasons the Claimant gave to justify his late request did not meet the requirements set out in the Reconsideration Request Regulations . Footnote 3 So the Commission refused to reconsider the decision. Footnote 4 [ 11 ] The Claimant then appealed to the General Division. The General Division dismissed his appeal. Footnote 5 The General Division found that the Commission hadn’t acted judicially because it considered an irrelevant factor. But it decided that the Claimant didn’t have a reasonable explanation and hadn’t shown that he had a continuing intention to request a reconsideration. So, the General Division didn’t give the Claimant more time to file his reconsideration request. [ 12 ] The Claimant asked for permission to appeal the General Division’s decision. I gave the Claimant permission to appeal. [ 13 ] At the Appeal Division, the Claimant says that the General Division failed to respect the principles of procedural fairness, and made errors of law, as well as important errors of fact. [ 14 ] The Commission says the General Division made an error of law when it decided that the Commission hadn’t acted judicially. Preliminary matters I gave the Claimant more time to explain why he was appealing [ 15 ] The Claimant didn’t initially provide his reasons for appealing the General Division’s decision when he filed his application to the Appeal Division. So, I gave him an opportunity to explain why he thought the General Division made errors. Footnote 6 [ 16 ] The Claimant responded and said the General Division breached its duty to provide a fair hearing. Footnote 7 He said that it did so in two ways. First, that it obtained and relied upon post-hearing documents from the Commission without giving him an opportunity to respond. And then, that the General Division failed to give him an opportunity to respond to the Commission’s notes documenting that it had attempted to contact him for fact-finding and that he hadn’t responded. I cannot accept new evidence [ 17 ] The Claimant submitted two photos of his passport along with his arguments to the Appeal Division. These photos were not before the General Division. [ 18 ] I’m not allowing this new evidence into the Appeal Division record. [ 19 ] The Appeal Division cannot usually accept new evidence. But there are three generally recognised exceptions to the rule against new evidence at the Appeal Division: if it is background information if it addresses issues of procedural fairness if it shows the General Division’s decision was made without any evidence before it. Footnote 8 [ 20 ] The Claimant says that I should accept the photos of his passport. He wants to prove that he was travelling after receiving the Commission’s decision. He says that he had testified about his travels at the General Division and so should be allowed to support that testimony with this new evidence. [ 21 ] The Commission said at the Appeal Division hearing that no one disputed the Claimant had travelled. Indeed, the General Division considered the Claimant’s testimony that he had been outside the country for part of the period of delay at paragraph 28 of its decision. Footnote 9 So, the Commission doesn’t consider the evidence particularly relevant but doesn’t object to it either. [ 22 ] I cannot accept new evidence unless it falls under an exception. And I find that the Claimant’s photos do not fall under any of the recognized exceptions. [ 23 ] An appeal at the Appeal Division is not an opportunity for the Claimant to add to the evidence provided at the General Division. If the Claimant wanted to submit the photos of his passport to the General Division, he should have done so at that time. Issues [ 24 ] I must decide the following issues: Did the General Division make an error of law when it decided the Commission had considered an irrelevant factor in applying section 1(2) of the Reconsideration Request Regulations ? If so, how should I fix this error? Analysis The grounds of appeal [ 25 ] The Appeal Division can intervene in the General Division’s decision if it made one of the following errors: breached the principles of procedural fairness acted beyond its powers or refused to exercise its powers made an error of law based its decision on an important error of fact. Footnote 10 The General Division made an error of law when it determined that the Commission should not have applied section 1(2) of the Reconsideration Request Regulations [ 26 ] At the Appeal Division hearing, the Claimant recognised that he had filed his request for reconsideration late. Footnote 11 So this is not disputed. [ 27 ] When the Commission looks at a late reconsideration request, it must first decide if the Claimant meets these requirements: Does the Claimant have a reasonable explanation for being late? Has the Claimant shown he always meant to ask for a reconsideration (continuing intention)? Footnote 12 [ 28 ] Then, if a person submitted their request for reconsideration more than 365 days after the Commission’s original decision, or filed a new application for benefits before asking for a reconsideration, the Commission  must also  be satisfied that the request: has a reasonable chance of success would not cause prejudice to the Commission or any other party. Footnote 13 [ 29 ] The General Division determined that the Commission didn’t act judicially (fairly). [ 30 ] The General Division determined that the Commission had considered an irrelevant factor: whether the request for reconsideration had a reasonable chance of success. Footnote 14 [ 31 ] The General Division wrote that because the Claimant’s request for reconsideration was less than one year late, the Commission should not have considered whether the request had a reasonable chance of success. Footnote 15 [ 32 ] I find that the General Division made an error of law when it decided the Commission had considered an irrelevant factor. [ 33 ] The General Division decided that the requirements set out in section 1(2) of the Reconsideration Request Regulations weren’t applicable to the Claimant’s request. But they are. [ 34 ] That is because the Claimant filed another application for benefits after the decision that he wants to have reconsidered was communicated to him. The General Division decided that the Claimant received the Commission’s decision by November 6, 2024. Footnote 16 The Claimant confirmed he filed a new application for benefits on August 28, 2025. Footnote 17 [ 35 ] Therefore, the Claimant had to show he met the requirements set out in section 1(1) and the requirements set out in 1(2) of the Reconsideration Request Regulations to get more time. So, it wasn’t a mistake for the Commission to consider whether the Claimant’s request for a reconsideration had a reasonable chance of success. [ 36 ] Because the Commission made an error of law, I can intervene. [ 37 ] But before I explain how I am going to fix this error, I will explain why I think the process at the General Division was fair. The process at the General Division was fair [ 38 ] The Claimant says the process before the General Division wasn’t fair. The Claimant hasn’t shown that the General Division failed to provide him a fair opportunity to be heard. [ 39 ] The duty to act fairly means that the General Division had to give the Claimant the opportunity to be heard and ensure he knew the case he had to meet. [ 40 ] The General Division allowed the Claimant an opportunity to be heard and present his arguments. The Claimant failed to appear at the first two hearings the General Division scheduled. Footnote 18 The General Division scheduled a third hearing for the Claimant’s appeal, which he attended. [ 41 ] The General Division therefore ensured the Claimant had an opportunity to be heard; despite the fact the General Division could have proceeded in the Claimant’s absence. Footnote 19 –    The Claimant received the Commission’s documents [ 42 ] The Claimant alleges that the General Division relied on documents sent by the Commission that were not disclosed to him. He says he didn’t see those documents and wasn’t given a chance to respond. [ 43 ] The General Division only relied on documents that were disclosed to the Claimant. The General Division had asked the Commission for information about the date on which it received the Claimant’s request for reconsideration. Footnote 20 The Commission responded on February 2, 2026, before the hearing with the Claimant took place. Footnote 21 These documents were communicated to the Claimant before the Claimant’s hearing, that was held on February 10, 2026. [ 44 ] At the beginning of the hearing, the General Division mentioned the documents the Commission sent in. The General Division asked the Claimant if he had received a copy of the General Division’s request at GD-12 and the Commission’s response at GD‑15. Footnote 22 The Claimant said he believed he had. Footnote 23 [ 45 ] The General Division made a point to check that the Claimant had received all the documentation. The Claimant was explicitly asked if he had received it and he said he believed he had. It was his responsibility to notify the General Division if he hadn’t received those documents. In addition, at the hearing, the Claimant confirmed he had sent his request for reconsideration in October 2025, which is what the Commission said at GD2-15. Footnote 24 The Claimant had the opportunity to respond to anything the Commission said in that document at his hearing before the General Division. –    The General Division considered both parties’ evidence [ 46 ] The Claimant says it wasn’t fair that the General Division relied on the Commission’s statement that it had tried to contact him about his request for reconsideration but that he hadn’t responded. The Claimant says he wasn’t given dates, methods or records of those contacts or given an opportunity to reply. Footnote 25 [ 47 ] The General Division considered both the Commission’s statement and the Claimant’s evidence and arguments. [ 48 ] The General Division summarized the Commission’s position about the Claimant’s lack of a reasonable explanation at paragraph 26 of its decision. [ 49 ] The General Division then went on to consider the Claimant’s evidence that: He had moved and didn’t get the decision when the Commission sent it to him. The decision was sent to a family member’s home and wasn’t forwarded to him. He only found out about the decision when he attempted to qualify for benefits on August 28, 2025. He only filed his request for reconsideration on October 6, 2025, because he was trying to find out how to make the request. He was out of the country for part of the period of the delay. [ 50 ] The General Division considered both the Commission’s arguments and evidence as well as the Claimant’s. Further, the Claimant could have disputed the Commission’s notes if he thought they did not accurately reflect what happened. The notes were in the file that was communicated to the Claimant. The hearing was his opportunity to respond. [ 51 ] I find that the process before the General Division was fair. Remedy [ 52 ] Both the Claimant and the Commission agree that I should make the decision that should have been made. [ 53 ] The Claimant wants me to intervene in the Commission’s decision and give him more time to request a reconsideration. [ 54 ] The Commission wants me to find that the Commission acted judicially and let the Commission’s decision stand. [ 55 ] I am going to make the decision that should have been made. Footnote 26 The file is complete and the process before the General Division was fair. I am making the decision that should have been made –    The Claimant received the Commission’s decision by November 6, 2024, and made a request for reconsideration on October 6, 2025 [ 56 ] The Claimant received the Commission’s decision, by mail, by November 6, 2024. I adopt the General Division’s analysis, reasons and conclusions on this issue, at paragraphs 14 to 19 of its decision. Footnote 27 –    The Commission acted judicially when it decided not to give the Claimant more time to request a reconsideration [ 57 ] A reconsideration request must be made within 30 days after the day on which a decision is communicated to the Claimant, or any further time that the Commission may allow. Footnote 28 [ 58 ] In deciding whether to allow more time, the Commission must apply the criteria set out in the Reconsideration Request Regulations . Footnote 29 [ 59 ] The Commission’s decision not to give the Claimant more time to request a reconsideration is discretionary. This means that I can only change the Commission’s decision if it failed to act judicially. [ 60 ] Acting judicially means considering all relevant factors, not considering any irrelevant factors, acting in good faith and not acting in a discriminatory manner or for an improper motive or purpose. Footnote 30 [ 61 ] The Commission explained its decision not to grant an extension of time at GD3‑24. It applied sections 1(1) and 1(2) of the Reconsideration Request Regulations to the Claimant’s request. Footnote 31 It decided that the Claimant: [redacted] had not demonstrated a continuing intention to request a reconsideration did not have a reasonable chance of success [ 62 ] Because the criteria are cumulative, the Commission could have stopped its analysis after finding that the Claimant hadn’t shown a reasonable explanation for delaying his request for reconsideration. [ 63 ] But it was also appropriate for it to look at the different requirements set out in the Reconsideration Request Regulations . [ 64 ] I find that the Commission considered the relevant factors and didn’t consider any irrelevant factors. The Federal Court of Appeal has said that it can be sufficient for the Commission to refer to the facts on file when making a discretionary decision. It doesn’t have to list every factor it took into consideration explicitly. Footnote 32 [ 65 ] The core of the Commission’s analysis is that it didn’t find the Claimant credible when he said he hadn’t received the decision. The Commission said it didn’t believe him because the decision was sent to the address the Claimant had provided in his Service Canada file. The Commission said that the Claimant’s address on file was the same when the decision was sent to him as when he filed his request for reconsideration. Also, the Commission decided he wasn’t credible on this matter because his address had been confirmed, and his mail hadn’t been returned. [ 66 ] The Claimant wants the Appeal Division to look at the evidence anew and determine that he didn’t receive the Commission’s decision by mail. But that is not my role. The Commission was allowed to determine that the Claimant wasn’t credible when he stated he didn’t receive the Commission’s decision. [ 67 ] In any case, the Claimant recognizes that he filed his request for reconsideration late. So, the question about whether he had a reasonable explanation for being late still had to be answered by the Commission. [ 68 ] The Commission also decided that the Claimant failed to follow up with the Commission. It decided that showed that he didn’t have a continuing intention to request a reconsideration. [ 69 ] The Commission also decided that the Claimant’s failure to respond to the Commission’s requests for information meant that he hadn’t shown his request for reconsideration on the substantive issue had a reasonable chance of success. Indeed, he hadn’t given any evidence to dispute that he had failed to disclose earnings from two employers while he was receiving EI benefits. Or that he hadn’t voluntarily left his job without just cause. The Commission remarked that the Claimant has a history of not declaring his earnings on his claimant reports. [ 70 ] The Claimant explained at the General Division that he left the country at some point. He explained that he was out of the country for most of the month of September 2025. But he said he left the country after he received the Commission’s decision. Footnote 33 The Claimant did not inform the Commission of his travels. [ 71 ] The fact that the Claimant has said that he was outside Canada in September 2025 is not an “essential consideration” which would allow me to intervene in the Commission’s exercise of discretion. Footnote 34 The Claimant had to provide a reasonable explanation for the delay from November 6, 2024, to October 6, 2025. A trip that lasted one month is not an essential consideration that could reasonably explain the almost year-long delay and allow me to interfere with the Commission’s discretion. [ 72 ] There is no evidence to show that the Commission acted in bad faith or in a discriminatory manner. [ 73 ] So, I cannot change the Commission’s decision to deny the Claimant more time to request a reconsideration. Conclusion [ 74 ] The appeal is allowed. [ 75 ] The General Division erred in law when it determined the Commission had not acted judicially. [ 76 ] I find the Commission acted judicially when it refused to allow the Claimant more time to request a reconsideration. So, I cannot change that decision. The Commission’s decision still stands. Footnotes Footnote 1 See the notice of decision at GD3-14. Return to footnote 1 referrer Footnote 2 See the notes at GD3-23. Return to footnote 2 referrer Footnote 3 See the notes at GD3-23. Return to footnote 3 referrer Footnote 4 See the notice of decision at GD3-22. Return to footnote 4 referrer Footnote 5 See the General Division’s decision at AD1-2. Return to footnote 5 referrer Footnote 6 See the letter the Appeal Division sent the Claimant on March 11, 2026, requesting additional information. Return to footnote 6 referrer Footnote 7 See the Claimant’s submissions at AD1A-2. Return to footnote 7 referrer Footnote 8 See the Federal Court of Appeal’s decision [NAME] v Canada (Attorney General) , 2022 FCA 157 at paragraphs 37 and 39. Return to footnote 8 referrer Footnote 9 See the General Division’s decision at AD1-7 at paragraph 28. Return to footnote 9 referrer Footnote 10 See section 58(1) of the Department of Employment and Social Development Act . Return to footnote 10 referrer Footnote 11 Listen to the recording of the Appeal Division hearing at 00:18:25. Return to footnote 11 referrer Footnote 12 See section 1(1) of the Reconsideration Request Regulations . Return to footnote 12 referrer Footnote 13 See section 1(2) of the Reconsideration Request Regulations . Return to footnote 13 referrer Footnote 14 See the General Division’s decision at AD1-7 at paragraph 25. Return to footnote 14 referrer Footnote 15 See the General Division’s decision at AD1-6 at paragraph 24. Return to footnote 15 referrer Footnote 16 See the General Division’s decision at AD1-5 at paragraph 19. Return to footnote 16 referrer Footnote 17 See the Claimant’s request for reconsideration at GD3-17. Return to footnote 17 referrer Footnote 18 See the Claimant’s email saying he mixed up the hearing dates at GD8. See the Claimant’s email acknowledging he missed two hearings scheduled with the General Division at GD14-1. Return to footnote 18 referrer Footnote 19 Section 58 of the Social Security Tribunal Rules of Procedure says that an oral hearing may take place without a party if the Tribunal is of the opinion that the party received the notice of hearing. Return to footnote 19 referrer Footnote 20 See the General Division’s request for Investigation and Report at GD-12. Return to footnote 20 referrer Footnote 21 See the Commission’s response at GD-15. Return to footnote 21 referrer Footnote 22 Listen to the recording of the General Division’s Hearing at 00:06:50. Return to footnote 22 referrer Footnote 23 Listen to the recording of the General Division’s Hearing at 00:07:10. Return to footnote 23 referrer Footnote 24 Listen to the recording of the General Division’s Hearing at 00:23:43. Return to footnote 24 referrer Footnote 25 See the Claimant’s arguments at AD1A-2. Return to footnote 25 referrer Footnote 26 See section 59(1) of the Department of Employment and Social Development Act . Return to footnote 26 referrer Footnote 27 See the General Division’s decision at AD1-4. Return to footnote 27 referrer Footnote 28 See section 112(1)(a) and (b) of the Employment Insurance Act . Return to footnote 28 referrer Footnote 29 See section 1 of the Reconsideration Request Regulations . Return to footnote 29 referrer Footnote 30 See the Federal Court of Appeal’s decision Canada (Attorney General ) v [NAME] (C.A.) , [1996] 1 FC 644. Return to footnote 30 referrer Footnote 31 See the Commission’s notes about its decision at GD3-23. The Commission initially mistakenly stated that only section 1(1) of the Request Reconsideration Regulations needed to be considered. But afterwards, the Commission said it must consider the requirements of the Regulations set out at section 1(1) and 1(2). And that is what it did. Return to footnote 31 referrer Footnote 32 See the Federal Court of Appeal’s decision [NAME] v Canada (Attorney General) , 2006 FCA  111 at paragraph 6. Return to footnote 32 referrer Footnote 33 Listen to the recording of the General Division’s hearing at 00:38:00. Return to footnote 33 referrer Footnote 34 See the Federal Court of Appeal’s decision Canada (Attorney General) v [NAME] , 2003 FCA  463 at paragraph 23. The Federal Court of Appeal said that if new material is brought to the attention of the reviewing tribunal, and that an essential consideration was ignored, it can consider it. Return to footnote 34 referrer