Appeal Allowed Due to Procedural Fairness Issues in EI Case

OUTCOME: Allowed

Citation: AS  v  Canada Employment Insurance Commission , 2026  [NAME]  328 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Respondent: [redacted] Representative: [COUNSEL] [NAME] under appeal: General Division November 13, 2025 (GE-25-2853) Tribunal member: [NAME] of hearing: Videoconference Hearing date: May 1, 2026 Hearing participants: Appellant Respondent’s representative Decision date: May 4, 2026 File number: AD-25-737 On this page Decision Overview Preliminary matters The parties agree on the outcome of the appeal. Conclusion Decision [ 1 ] The appeal is allowed. The General Division made an error of procedural fairness. I am referring the matter to the [NAME] to reconsider. Overview [ 2 ] [APPELLANT]. is the Appellant. I will call him the [APPELLANT] because this application is about his claim for Employment Insurance ( EI ) benefits. The Respondent is the Canada Employment Insurance Commission, which I will call the Commission. [ 3 ] The Commission initially determined that the Claimant was entitled to 42 weeks of benefits at a benefit rate of $695.00 per week. Footnote 1 The Commission calculated these benefits based on an interim Record of Employment ( ROE ), which it created using information supplied by the Claimant. Footnote 2 [ 4 ] The employer submitted an ROE on March 3, 2025, which did not agree with the interim ROE . The Claimant disputed the information recorded in this ROE , but the Commission’s investigation confirmed it was correct. The Commission informed the Claimant that he was only entitled to 23 weeks of benefits at $526.00 per week. [ 5 ] The [APPELLANT] asked the Commission to reconsider, which caused the Commission to request a ruling from the Canada Revenue Agency ( [NAME] ). [NAME] confirmed that the Claimant had 960 hours of insurable employment and earnings of $17,200.00 in an employment period from April 11, 2024, to January 2025. [ 6 ] The Commission modified its decision by reassessing the Claimant’s “best earnings” weeks. This increased the Claimant’s weekly benefit rate from $526.00 to $541.00. Footnote 3 It also changed the start date of the claim from January 26, 2025, to January 12, 2025, which it omitted to mention in its reconsideration decision. This final change did not affect the Claimant’s benefit entitlement. [ 7 ] The Claimant appealed the reconsideration decision to the General Division of the Social Security Tribunal (Tribunal). The General Division confirmed that the Claimant was entitled to 23 weeks of benefits at a rate of $541.00 per week, so it dismissed the [APPELLANT] appeal. It also found that the Commission should have used a regional unemployment rate of 8.2% instead of 8.5%, but this did not change his weeks of entitlement. Footnote 4 [ 8 ] The Claimant appealed the General Division decision to the Appeal Division. [ 9 ] I am allowing the appeal. The General Division did not act in a way that was procedurally fair. I am referring the matter to the [NAME]. [ 10 ] In reconsidering the matter, the [NAME] shall consider the decision that resulted from the [NAME] appeal of the October 9, 2025, Canada Revenue Agency ( [NAME] ) ruling. Preliminary matters [ 11 ] I held a case conference including both the Claimant and the Commission on December 16, 2025, to clarify what it was that the Claimant was appealing. I also hoped to explore the Commission’s view of the [NAME] ruling. The Commission confirmed that there were problems with the ruling, but that [NAME] had stated that it could not correct those problems unless the ruling was appealed. [ 12 ] Since the General Division had relied on the [NAME] ruling, I agreed to hold the matter in abeyance while the [NAME] appeal went forward. Both the Claimant and the Commission appealed the ruling. That appeal resulted in a decision which revised the Claimant’s insurable earnings from his employer, “[NAME],” to $23,610.00 (the “ [NAME] appeal”). [ 13 ] The Commission provided the [NAME] appeal decision to the Tribunal on February 25, 2026. However, it did not consent to have the Appeal Division consider the [NAME] appeal decision because it was “new evidence.” It stated that the Appeal Division may only consider new evidence if it meets certain exceptions. It argued that the new evidence did not fall within any of these exceptions. [ 14 ] I agree that the [NAME] appeal decision is new evidence and that it does not meet any exception by which the Appeal Division may consider it. Footnote 5 [ 15 ] I am not considering the [NAME] appeal decision. The parties agree on the outcome of the appeal. [ 16 ] Both parties agreed that the General Division made an error of procedural fairness. The Commission argued that the matter should be referred to the [NAME]. [ 17 ] The [APPELLANT] said that he had no preference as to whether I substituted my decision or sent it to the [NAME]. However, he was concerned to ensure that the [NAME] decision be considered and understood that I could not consider it. So, he was agreeable to having the matter referred to the [NAME]. I accept the proposed outcome The General Division’s error [ 18 ] I accept that the General Division process treated the [APPELLANT] unfairly. [ 19 ] The principal reason for the Claimant’s appeal to the General Division was that he disagreed with the choice of weeks used by the Commission to calculate his earnings. This affected the number of insurable hours and his insurable earnings. And it also affected his benefit rate, and the number of weeks of benefits he could receive. [ 20 ] When the Commission made its reconsideration decision, it relied on a [NAME] ruling. That ruling stipulated the period of the [APPELLANT] insurable employment, his hours of insurable employment, and the total insurable earnings in the relevant period. Footnote 6 [ 21 ] The General Division briefly asked the Claimant if he intended to appeal the [NAME] ruling. However, it did not discuss with the Claimant the significance of the ruling or the importance of appealing the ruling. [ 22 ] The General Division did not inform the Claimant that section 90 of the EI Act gives the [NAME] exclusive jurisdiction to decide the length of the insurable employment (and its start and end dates), as well as the number of insurable hours, and the amount of insurable earnings. It did not inform the Claimant that the General Division is bound by the [NAME] ’s ruling related to insurable earnings under section 104(2) of the EI Act. It did not tell him that the ruling could only be challenged by an appeal to the Tax Court under section 104(1). [ 23 ] If the Claimant disagreed with any of the earnings-related findings in the [NAME] ruling, he still had time to appeal the ruling at the time of the General Division hearing. He could have asked the General Division to adjourn the hearing or hold it in abeyance, while he pursued the appeal. [ 24 ] The [APPELLANT] was unrepresented at the General Division. He plainly believed that he was pursuing an appeal process at the General Division that could grant him the remedy he wanted. The General Division did not explain that it had no jurisdiction to overrule [NAME] or that it could not change the Claimant’s insurable earnings unless the Claimant first appealed the [NAME] ruling and was successful. [ 25 ] Because of this, the process treated the Claimant unfairly. [ 26 ] The Claimant made brief submissions supporting his belief that the General Division made an error of fact as well. He said that it failed to consider evidence that the employer called the Commission to confirm what the [APPELLANT] had told the Commission about his first day worked, last day paid, and about his hours. Footnote 7 The employer committed to revise the ROE , but it failed to do so. [ 27 ] The Commission did not agree with the Claimant’s submission that the General Division made an error of fact. However, I have accepted the Parties’ agreement about the fairness error, and this is a sufficient basis for my decision. [ 28 ] For the sake of completeness, I find that the General Division did not make an error of fact by overlooking or misunderstanding this evidence. [ 29 ] The [APPELLANT] concern relates to evidence concerning the earnings that were used by the Commission to calculate his benefits. This evidence may well be relevant to his earnings, but it was not relevant to the General Division’s decision. The General Division’s findings and decision on earnings were dictated by the [NAME] ruling. It was legally required to follow the [NAME] ruling and had no independent ability to reevaluate the earnings evidence on which the [NAME] ruling was based. Remedy [ 30 ] I am referring the matter to the [NAME] for a new hearing. [ 31 ] The [NAME] appeal decision modifies the original [NAME] ruling. I cannot consider that appeal decision because it is new evidence. However, the error of procedural fairness arose because the [APPELLANT] was not given a fair chance to appeal the [NAME] ruling. Since he has now appealed and obtained a [NAME] appeal decision, it would be unfair for the Tribunal to make a final decision without taking that ruling into account. [ 32 ] The [NAME] will be able to consider the [NAME] appeal decision. Conclusion [ 33 ] The appeal is allowed. The General Division acted in a way that was procedurally unfair. [ 34 ] I am referring the matter to the [NAME]. I am directing the [NAME] to consider the new [NAME] appeal decision. Footnotes Footnote 1 The original number of calculated weeks is uncertain. It was said to be 42 weeks in the letter dated July 31, 2025, but the Commission’s notes (GD3-88) say that it was originally 45 weeks. Return to footnote 1 referrer Footnote 2 See GD3-88. Return to footnote 2 referrer Footnote 3 See calculations in GD4-5 and GD4-6. Return to footnote 3 referrer Footnote 4 See section 12(2) and Schedule I of the Employment Insurance Act . Return to footnote 4 referrer Footnote 5 See, for example: [NAME]  v.  Canada (Attorney General ), 2016  FC  482; [NAME]  v.  Canada (Attorney General ), 2016  FCA  276; [NAME]  v  Canada (Attorney General ), 2016  FC  874; [NAME]  v.  Canada (Attorney General) , 2019  FCA  256, Association of Universities and Colleges of Canada  v.  [NAME] (Access Copyright) , 2012  FCA  22, Return to footnote 5 referrer Footnote 6 See GD3-91. Return to footnote 6 referrer Footnote 7 See GD3-39, GD3-88. Return to footnote 7 referrer