Appeal Allowed: Misconduct and Overpayment Reconsidered

Citation: [NAME]  v  Canada Employment Insurance Commission , 2026  [NAME]  220 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Respondent: [redacted] Representative: [NAME] Decision under appeal: General Division decision dated January 23, 2026 (GE-25-3528) Tribunal member: [NAME] of hearing: In Writing Decision date: May 27, 2026 File number: AD-26-124 On this page Decision Overview Preliminary matters Issues Analysis Conclusion Decision [ 1 ]  I am allowing the appeal and referring the matter to the Board of Appeal so that it may consider the misconduct issue. [ 2 ]  The Appellant, M. W. (Claimant), should clarify whether he is challenging the allocation of earnings and the overpayment of $3,900. If not, then the issue at the Board of Appeal will be limited to the misconduct issue, which covers the disqualification issue and the overpayment of $14,300. Overview [ 3 ] The Claimant appeals the General Division decision. [ 4 ] The General Division made several findings. It found that the Respondent, the Canada Employment Insurance Commission (Commission), had proven that the Claimant lost his job because of misconduct. As a result, it concluded hat the Claimant was disqualified from receiving Employment Insurance benefits. [ 5 ] The General Division also found that the Claimant had knowingly provided false information by failing to report earnings. This resulted in a modification of the weeks to which the Claimant’s earnings were to be allocated. [ 6 ] Both the disqualification and the allocation of earnings led to an overpayment. [ 7 ] The Claimant argues that the General Division made procedural, legal, and factual errors in its decision. The Commission denies that the General Division made any legal or factual errors. However, the Commission acknowledges that there may have been a breach of natural justice. Therefore, the Commission asks the Appeal Division to allow the appeal and refer the matter to the [NAME] 1 for reconsideration. [ 8 ] The Claimant agrees that the matter should be referred to the Board of Appeal for a new hearing. This will allow him to rely on any new medical or other evidence and additional submissions. The Claimant wants to rely on this new evidence to show that he did not commit any misconduct. If he had not been dismissed due to misconduct, then a disqualification from receiving Employment Insurance benefits will not be imposed for that reason. [ 9 ] I am allowing the appeal and referring the matter to the Board of Appeal. Preliminary matters [ 10 ] Initially the Claimant asked for a hearing. His work situation changed. So, he was no longer available for a hearing. He asked the Appeal Division to issue a decision based on the written materials on file. Issues [ 11 ] The issues in this appeal are as follows: a) Was the process fair at the General Division? b) Did the General Division misinterpret the meaning of “misconduct” under the Employment Insurance Act ? c) Did the General Division fail to determine the amount of the Claimant’s overpayment? d) Did the General Division fail to write off or waive the overpayment? e) Did the General Division fail to consider the medical evidence? f) Did the General Division make a factual error about whether he had been absent from Canada? Analysis [ 12 ] The Appeal Division may intervene in General Division decisions if it made any jurisdictional, procedural, or legal errors, or if it based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. The General Division denied the Claimant procedural fairness [ 13 ] The General Division denied the Claimant procedural fairness when it issued its decision. The Claimant had not filed medical records by the filing deadline that the General Division had set. He says that the records are vital to his case. But for various reasons, the Claimant may not have received notice of the filing deadline, so may have been unaware that he should have filed his medical records. [ 14 ] I have fully set out the facts in my leave to appeal decision of April 1, 2026, and will only briefly summarize them here. [ 15 ] In his appeal at the General Division, the Claimant sought an extension of time to file medical records. He says that these records show that he did not commit any misconduct. In particular, he says that this evidence shows that he had not acted intentionally nor that he was aware of any consequences that would result from his conduct. (For misconduct, a claimant had to have acted intentionally and been aware of the consequences of their actions.) [ 16 ] The General Division set a filing deadline of January 14, 2026. Footnote 2 The Claimant obtained a medical letter dated January 6, 2026, from his family doctor, but he did not submit it to the General Division before it issued its decision on January 23, 2026. [ 17 ] On its face, the General Division was justified when it issued its decision. For one, the Claimant initially set his own filing deadline, “the end of this coming weekend” Footnote 3 when he asked for an extension of time on January 5, 2026. Two, the Claimant also said that he would promptly file medical records once he received them. Footnote 4 And three, the Claimant had asked for an extension before. So, the General Division could have reasonably concluded that the Claimant would have asked for another extension of time if he needed one. [ 18 ] However, in issuing its decision, the General Division does not appear to have considered the following circumstances: i. In his Notice of Appeal, the Claimant wrote that there had been communication issues with the Social Security Tribunal; Footnote 5 ii. There had been an earlier incident when he overlooked a notice from the Tribunal; Footnote 6 iii. The Claimant has attention-deficit/hyperactivity disorder (ADHD), which he says interferes with his attention, organization, and ability to manage, “multiple administrative matters”; Footnote 7 and iv. The General Division had previously asked the Claimant for an update, Footnote 8 so this may have led the Claimant to believe that the General Division would follow up again with him for ongoing status updates. [ 19 ] The Commission acknowledges that the timeline and sequence of communications may have resulted in the Claimant not submitting his medical records before the deadline of January 14, 2026. The Commission acknowledges that this may represent a breach of natural justice. Footnote 9 [ 20 ] Given the circumstances, I agree that the Claimant may have been unaware of and thus missed the filing deadline of January 14, 2026. On this basis alone, I am allowing the appeal and referring the matter to the Board of Appeal. The Claimant alleges the General Division made legal and factual errors [ 21 ] The Claimant alleges the General Division made other errors. I do not have to address them, as I have found a basis upon which to refer the matter to the Board of Appeal. However, I will briefly address them again for ease of reference and as it may provide some guidance to the parties and to the Board of Appeal in choosing what issues on which to focus. Footnote 10 Interpretation of misconduct [ 22 ] The Claimant argues that the General Division misinterpreted the meaning of “misconduct,” and that it misapplied the law to the facts. However, he does not say how the General Division might have misinterpreted the law. [ 23 ] In fact, it seems that the Claimant really does not disagree with how the General Division interpreted misconduct. He seems to disagree with how it applied the law to facts that the General Division did not have. [ 24 ] As the Claimant will get a new hearing before the Board of Appeal, the Claimant will be able to argue what misconduct means and to explain why he thinks his actions do not amount to misconduct. Calculation of the overpayment [ 25 ] The Claimant accepts that he owes $3,900 as part of the overpayment. He challenges the remaining $14,300, as he says there is no basis for this. The Commission says that $3,900 results from the allocation of undeclared earnings, while $14,300 results from the retroactive disqualification that was imposed due to dismissal for misconduct. Footnote 11 What remains in dispute is the amount of $14,300. [ 26 ] If, as the Claimant argues, the medical evidence shows that he did not commit any misconduct, then the disqualification may not apply and could be lifted. The Claimant’s request to waive the overpayment [ 27 ] The Claimant says the General Division should have considered mitigating circumstances, as that would have allowed it to waive or write-off the overpayment. But the General Division did not have any jurisdiction to waive the overpayment. So, there was no reason why the General Division would have considered the Claimant’s mitigating circumstances. I note that the Board of Appeal does not have any jurisdiction to waive overpayments either. The medical evidence [ 28 ] The Claimant argues that the General Division failed to consider the medical evidence. But, at the time, there was no medical evidence for it to consider. [ 29 ] The Claimant has since filed a copy of the following medical records: Letter dated January 6, 2026, from his family doctor, Footnote 12 and [NAME] assessment dated May 4, 2026, of a [NAME]. Footnote 13 [ 30 ] The Appeal Division generally does not consider new evidence, other than under exceptional circumstances that do not exist here. [ 31 ] The Claimant may file any additional medical records for the Board of Appeal. The Claimant will want to ensure that any medical records he files with the Board of Appeal address each of the components that establishes misconduct, including whether he committed the act intentionally (whether or not wrongdoing was intended) and whether he was aware of the possible consequences of his actions. Absence from Canada [ 32 ] The Claimant says the General Division mistakenly found that he had made a false statement that he was absent from Canada. However, the General Division found that any false statements related to the accuracy of his declared earnings, rather than to whether he had been absent from Canada. The General Division did not make a factual error on this issue. [ 33 ] Apart from that, as the Commission notes, neither the notices of decision nor the notice of debt show that any part of the overpayment was a disentitlement for being outside of Canada. Footnote 14 The Commission submits that the issue of being outside of Canada was not before the General Division. In other words, the issue will not be an issue before the Board of Appeal either. Fixing the error [ 34 ] The parties agree that I should refer the matter to the Board of Appeal. This is the appropriate remedy as it will allow the Claimant to file medical records that he had wanted to provide to the General Division. [ 35 ] The Claimant also asks me to give directions to the Board of Appeal. He is asking me to direct the Board of Appeal to focus on what he calls the “Kitimat incident” through the lens of the [NAME] assessment. Footnote 15 He also wants me to direct the Board of Appeal to consider his “subjective knowledge.” Footnote 16 He also seeks to set aside the overpayment as a “deterrence.” Footnote 17 [ 36 ] I will leave the Board of Appeal to assess the misconduct issue and to determine what weight, if any, to assign to the evidence. The misconduct issue also ties into the overpayment of $14,300. If the Board of Appeal should find that the Claimant did not commit any misconduct, then a disqualification for dismissal due to misconduct likely would not be imposed. Conversely, if it finds that there was misconduct, then the disqualification from receiving Employment Insurance benefits would apply. [ 37 ] None of the Claimant’s submissions before me appear to challenge the General Division’s decision on the allocation of earnings. Indeed, the Claimant indicated that he accepts the amount of the overpayment of $3,900 resulting from the allocation. Yet, he does seem to challenge the concept of an overpayment. So, I will leave this as a live issue that the Claimant can choose to pursue. [ 38 ] The Board of Appeal should disregard the issue over the Claimant’s purported absence from Canada. It is not relevant to the overpayment. [ 39 ] Finally, the Claimant should note that the Social Security Tribunal does not send a copy of its complete file to the Board of Appeal. If the Claimant wants to rely on any of the medical evidence, history and chronology, or submissions that he filed with the Appeal Division, he will need to re-file them with the Board of Appeal. There is some duplication in his documents, but he will likely want to include documents AD1, AD1B, AD1C, AD5, and AD8. Some of the Commission’s representations may also be helpful to the Claimant. Conclusion [ 40 ] The Claimant may have been unaware of and thus missed the filing deadline at the General Division. I am therefore allowing the appeal and referring the matter to the Board of Appeal so that it may consider whether the Claimant had been dismissed from his employment due to misconduct. [ 41 ] As the Claimant seems to challenge the general concept of an overpayment, I will leave the allocation of earnings as a live issue, since part of the overpayment results from the allocation. [ 42 ] The Claimant should let the Board of Appeal know whether he intends to dispute the overpayment of $3,900. If not, then the only issue that the Board of Appeal will need to address relates to the misconduct issue. Footnotes Footnote 1 The [NAME] replaces the General Division for new appeals after March 31, 2026. Return to footnote 1 referrer Footnote 2 General Division letter dated January 7, 2026, at GD8. Return to footnote 2 referrer Footnote 3 Claimant’s email of January 5, 2026, at GD7. Return to footnote 3 referrer Footnote 4 Claimant’s email of January 5, 2026, at GD7. Return to footnote 4 referrer Footnote 5 Notice of Appeal at GD2-1. Return to footnote 5 referrer Footnote 6 Notice of Appeal at GD2-5. Return to footnote 6 referrer Footnote 7 Notice of Appeal at GD2-5. Return to footnote 7 referrer Footnote 8 General Division letter dated January 5, 2026, at GD6. Return to footnote 8 referrer Footnote 9 Representations of the Commission to the Social Security Tribunal – Appeal Division, at AD6-8 to 9. Return to footnote 9 referrer Footnote 10 I addressed these issues previously in my leave to appeal decision. Return to footnote 10 referrer Footnote 11 Representations of the Commission to the Social Security Tribunal – Appeal Division, at AD6-10. Return to footnote 11 referrer Footnote 12 Letter dated January 6, 2026, of the [NAME], at AD1-11, AD1B and AD1C-1. Return to footnote 12 referrer Footnote 13 [NAME] assessment dated May 4, 2026, at AD5-2 to 3 and AD8-2 to 3. Return to footnote 13 referrer Footnote 14 Representations of the Commission to the Social Security Tribunal – Appeal Division, at AD6-9 to 10. Return to footnote 14 referrer Footnote 15 Claimant’s submissions filed May 8, 2026, at AD8-52. Return to footnote 15 referrer Footnote 16 Claimant’s submissions filed May 8, 2026, at AD8-53. Return to footnote 16 referrer Footnote 17 Claimant’s submissions filed May 8, 2026, at AD8-53. Return to footnote 17 referrer