Appeal Allowed: Social Security Tribunal Corrects Reconsideration Error

OUTCOME: Allowed

Citation: OA  v  Canada Employment Insurance Commission , 2026  SST  269 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Respondent: [redacted] Representative: [COUNSEL] under appeal: [NAME] 30, 2025 (GE-25-1861) Tribunal member: [NAME] of hearing: Teleconference Hearing date: June 10, 2026 Hearing participants: Appellant Respondent’s representative Decision date: June 11, 2026 File number: AD-26-21 On this page Decision Overview The Parties agree on the outcome of the appeal Conclusion Decision [ 1 ]  I am allowing the appeal. The [NAME] made an error of jurisdiction by failing to consider whether the Commission had reconsidered the Claimant’s benefits in a “judicial” manner. [ 2 ]  I am making the decision that the [NAME] should have made. I find that the Commission did not reconsider judicially. I am exercising my own discretion in the place of the Commission, and I have decided that the Claimant’s benefits should not be reconsidered. Overview [ 3 ] [APPELLANT]. is the Appellant. This appeal concerns her claim for EI benefits, so I will call her the Claimant. The Respondent is the Canada Employment Insurance Commission, which I will call the Commission. [ 4 ] The Claimant lives in a small, remote community in Canada’s far north. After she left her job, she received 50 weeks of EI benefits. The Commission later decided that she had not been available for work while receiving benefits. It decided that she needed to repay the benefits she received. [ 5 ] The [APPELLANT] disagreed and asked the Commission to reconsider. The Commission would not change its decision that she was no available for work, so she appealed to the [NAME] of the Social Security Tribunal. The [NAME] dismissed her appeal and the Claimant appealed the [NAME] decision to the Appeal Division. [ 6 ] I am allowing the appeal. The [NAME] made an error of jurisdiction by not considering whether the Commission acted judicially when it reconsidered. I have substituted my decision for that of the [NAME] and decided that the Commission did not act judicially. I also find that the benefits paid to the [APPELLANT] should not be reconsidered, which means she was not overpaid benefits. The Parties agree on the outcome of the appeal [ 7 ] At the Appeal Division hearing, the Commission conceded that the [NAME] made an error of jurisdiction. It conceded that the [NAME] failed to exercise its jurisdiction because it did not consider whether the Commission had acted judicially when it reconsidered the benefits paid to the Claimant. [ 8 ] The Commission recommended that I substitute my decision for that of the [NAME] and asked that I find that the Commission did not act judicially. It further recommended that I find that the Claimant’s claim should not be reconsidered. [ 9 ] The [APPELLANT] agrees that I should dispose of the appeal as recommended by the Commission. I accept the parties’ agreement [ 10 ] I agree with the parties that the [NAME] made an error of jurisdiction. [ 11 ] An error of jurisdiction is where the [NAME] makes a decision it is not authorized to make, or where it fails to make a decision that it is required to make. [ 12 ] The [NAME]’s jurisdiction is normally limited by the issues described in the reconsideration decision. The issue in the August 29, 2024, reconsideration decision was whether the Claimant was available for work from June 20, 2021. [ 13 ] Because the Commission decided that the Claimant was not available, it declared an overpayment for those benefits that it had paid to the Claimant after June 20, 2021. This means that the Commission was also reconsidering the benefits that it had paid. [ 14 ] In her application to the Appeal Division, the Claimant selected only the ground of appeal concerned with an error of procedural fairness. But it was apparent that she did not know why she was being asked to pay back benefits she had received, and that she did not think it was fair she should be required to do so. In other words, her real concern was related to the Commission’s reconsideration of her benefits—which the [NAME] did not address. [ 15 ] The decision to reconsider benefits is a discretionary decision. Footnote 1 All such decisions must be made in a “judicial” manner. This means that the Commission cannot act improperly or in bad faith, or in a discriminatory manner. It also means that it must consider all the relevant factors, and that it must not consider factors that are not relevant. Footnote 2 [ 16 ] If the Commission did not act judicially, its reconsideration decision is invalid. Therefore, the [NAME] had jurisdiction over the manner in which the Commission exercised its discretion when it reconsidered. [ 17 ] It is plain that the [NAME] did not consider whether the Commission acted judicially in reconsidering benefits it had paid to the Claimant. There is no indication in the decision that the [NAME] was even aware that the Commission had employed a discretionary power to reconsider the Claimant’s benefits. [ 18 ] The Appeal Division has previously found that the [NAME] makes an error of jurisdiction when it fails to consider whether the Commission acted judicially when it reconsiders. Footnote 3 I am not bound by the reasoning of other Appeal Division decisions, but I nonetheless agree. [ 19 ] The position of the parties that the [NAME] made an error of jurisdiction is consistent with the facts and the law. I accept their agreement. I accept the proposed outcome [ 20 ] The Commission recommended that I make a decision finding that its reconsideration decision was not made judicially and that its payment of benefits should not be reconsidered. The Claimant agreed with the Commission’s position. [ 21 ] The Commission stated that it had had no information or evidence at the time it reconsidered that would suggest that it was an appropriate situation for reconsideration—according to its own reconsideration policies. I accept the Commission’s argument. [ 22 ] The Commission must consider all relevant factors when it decides to reconsider. Other decisions of this Tribunal have repeatedly held that the Commission’s reconsideration policy is a relevant factor. Footnote 4 As the Commission noted, it did not consider its reconsideration policy—or there is no evidence that it did. Footnote 5 This means it did not act judicially when it reconsidered. [ 23 ] I also accept the parties’ agreement that the benefits paid to the Claimant from June 2021 to June 2022 should not be reconsidered. [ 24 ] Other decisions of the Appeal Division confirm that I have the authority to decide this issue. Footnote 6 The [NAME] had the authority to give the discretionary decision the Commission should have given, and I am now giving the decision the [NAME] should have given. [ 25 ] In deciding not to reconsider, I have considered the Commission’s policy as one relevant factor. That policy permits the Commission to reconsider where certain circumstances are present. The Commission’s policy suggests that it will not reconsider unless a claimant was underpaid, benefits were not paid contrary to the structure of the EI Act, the claimant knew they should not be receiving benefits, or where benefits are paid based on false statements. [ 26 ] I have considered that one of the circumstances identified in the reconsideration policy may have been present: The [APPELLANT] may have made false statements to the effect that she was “available for work on her claim reports,” as the Commission claimed she did when talking to her. If she did, the Commission’s policy may have permitted it to reconsider. [ 27 ] However, the Commission did not produce the Claimant’s claim reports to the [NAME], so those are not in the record. Later, the [APPELLANT] said things to the Commission about her job search that would have been relevant to whether she was available, but there is no direct evidence that she had misrepresented her availability earlier. I recognize that claimants are not ordinarily paid benefits unless they declare their availability, but the benefit payment system is not infallible. [ 28 ] When the [APPELLANT] told the Commission (in the course of its reconsideration investigation) that she had not been seeking work, she explained that she needed to care for her child after the local daycare closed. She also said that she could not leave her baby with just anyone while [NAME] was in her community, and she could not find a suitable babysitter. [ 29 ] There was no evidence to the contrary and what she said about the availability of alternate childcare is certainly plausible. I take notice that her community has a total population significantly less than a thousand persons and that it is inaccessible by road, from which I infer that both employment opportunities and childcare assistance would have been extremely limited. So, I accept that she had a continuing obligation to personally care for her baby. [ 30 ] In its concession, the Commission told the Appeal Division that it did not have information on which it could have justified reconsidering according to its policy. This suggests one of two things. Either it had no information that the [APPELLANT] made false statements about her availability or it did not interpret her statements as false or misleading. [ 31 ] I note that “availability for work” actually means availability for “suitable” employment under the law. “Suitable employment” is employment whose hours are compatible with family obligations. Footnote 7 Nothing in the reconsideration file suggests that the Commission had regard to the [APPELLANT] availability for “suitable employment,” at the time that it reconsidered. [ 32 ] In any event, the Commission is best placed to know what information it had and what it considered, so I accept its assertion that it had no policy basis for reconsidering. [ 33 ] Even if the Claimant did make a false or misleading statement, I am not convinced that the Claimant’s benefits should be reconsidered. The Commission had already accepted that the [APPELLANT] obligation to personally care for her baby was just cause for leaving her employment. It is possible that the Commission expressly, or by its actions, had led her to believe she would continue to be entitled to benefits so long as she had to care for her baby. Footnote 8 It would not have been unreasonable for her to believe this. Footnote 9 [ 34 ] The [APPELLANT] could also have misunderstood the situation. She had an interpreter at both the [NAME] and the Appeal Division and demonstrated only a limited facility in English (which is not her first language). I note that she told the [NAME] that she had not understood the Commission’s questioning. Footnote 10 And her application to the Appeal Division indicated that she still did not understand why the Commission was asking her to “pay [it] back.” Footnote 11 [ 35 ] To be clear, the evidence before the [NAME] does not establish the absence of suitable employment during the time the Claimant was receiving benefits. Nor does it establish that the Claimant was actually available for suitable employment. I am not finding that she was available for work. [ 36 ] However, I consider it relevant—in assessing whether her benefits should be reconsidered—that the Commission allowed her initial claim because of her childcare obligations but then reconsidered, based on her non-availability. It apparently did so without enquiring as to whether there was a realistic prospect of employment in her small, remote, home community, which would have been compatible with her obligation to care for her child. [ 37 ] My decision is that the Claimant’s benefit payments should not be reconsidered. Conclusion [ 38 ] I am allowing the appeal. [ 39 ] The [NAME] made an error of jurisdiction by failing to consider if the Commission reconsidered judicially. I have substituted my decision for that of the [NAME] and decided that the Commission did not act judicially. I have considered whether it is appropriate to reconsider, and I have decided that it is not. [ 40 ] As a result, the Claimant is entitled to the weekly benefit payments that she received. The Claimant apparently had a subsequent claim for benefits. I have no jurisdiction over any subsequent claim the Claimant may have filed, but I expect that the Commission will reimburse her for any part of the overpayment of benefits that it may have recouped from her benefits in that claim. [ 41 ] Finally, I note that the Commission originally decided that the Claimant had made false statements and imposed a penalty and a notice of violation, as well as deciding that the Claimant would have to repay the benefits she received. I have not considered the penalty or violation in this decision, because it was not included in the August 29, 2024, reconsideration decision or considered by the [NAME]. As far as I can tell, the Commission has not reconsidered the penalty or notice of violation. Footnotes Footnote 1 See section 52 of the EI Act. Return to footnote 1 referrer Footnote 2 [NAME]  v  Canada (minister of Citizenship and Immigration) , 2  FC  592;  Canada ([NAME] [NAME])  v  [NAME] , 1995 CanLII 3558. Return to footnote 2 referrer Footnote 3 See for example,  MS   v   Canada Employment Insurance Commission , 2022  SST  933;  [NAME]   v   Canada Employment Insurance Commission , 2022  SST  931. Return to footnote 3 referrer Footnote 4 See Section 59(1) of the  DESD  Act for the Appeal Division’s authority; also see MS   v   Canada Employment Insurance Commission , 2022  SST  933, [NAME]  v  Canada Employment Insurance Commission , 2023  SST  139; Canada Employment Insurance Commission  v  [NAME] , 2024  SST  1460, Return to footnote 4 referrer Footnote 5 The Commission’s reconsideration policy is found in its Digest of Benefit Entitlement Principles , policy 17.3.3. Return to footnote 5 referrer Footnote 6 See Section 59(1) of the  DESD  Act for the Appeal Division’s authority; also see MS   v   Canada Employment Insurance Commission , 2022  SST  933, [NAME]  v  Canada Employment Insurance Commission , 2023  SST  139; Canada Employment Insurance Commission  v  [NAME] , 2024  SST  1460, Return to footnote 6 referrer Footnote 7 See section 9.002 of the Employment Insurance Regulations . Return to footnote 7 referrer Footnote 8 See GD30. Return to footnote 8 referrer Footnote 9 See the decision in Canada Employment Insurance Commission  v  [NAME] , 2024  SST  299, where a claimant was considered available even though his childcare obligations effectively excluded “suitable employment.” Return to footnote 9 referrer Footnote 10 See GD2-8. Return to footnote 10 referrer Footnote 11 See AD1-4. Return to footnote 11 referrer