Appeal Division Corrects Error of Fact in Employment Insurance Overpayment Case

Citation: SP  v  Canada Employment Insurance Commission , 2026  SST  298 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Respondent: [redacted] Representative: [NAME] Decision under appeal: General Division decision dated November 18, 2025 (GE-25-2859) Tribunal member: [NAME] of hearing: Videoconference Hearing date: March 4, 2026 Hearing participants: Appellant Respondent Respondent’s representative Decision date: April 16, 2026 File number: AD-25-810 On this page Decision Overview Issues Analysis The parties agree the General Division made an important error of fact Remedy Conclusion Decision [ 1 ] The appeal is allowed. The General Division made an important error of fact. I am making the decision that should have been made. [ 2 ] The Claimant isn’t disentitled from being paid Employment Insurance ( [NAME] ) benefits for a seven-day period while he was outside Canada for his grandfather’s funeral, from November 8, 2022, to November 14, 2022, inclusive. [ 3 ] He is disentitled from receiving [NAME] benefits from November 15, 2022, to January 7, 2023, inclusive. [ 4 ] I am lowering the penalty that was imposed by the Canada Employment Insurance Commission (Commission) to $498. [ 5 ] I am rescinding (removing) the notice of violation. Overview [ 6 ] The Claimant was paid [NAME] benefits. Footnote 1 The Commission received information from the Canada Border Services Agency ([NAME]) that the Claimant was travelling outside of Canada from November 7, 2022, to January 8, 2023. Footnote 2 The Claimant confirmed he had been outside Canada during this period. He said he went to India to attend his grandfather’s funeral. Footnote 3 [ 7 ] The Commission decided that the Claimant was disentitled from being paid [NAME] benefits from November 8, 2022, to January 6, 2023, because he wasn’t in Canada. Footnote 4 He also could not prove he was available for work during that period. Footnote 5 The Commission also decided that he knowingly made six false representations in six reports to claim benefits. It imposed a penalty of $1,723 for the six false representations. Footnote 6 It also issued a notice of very serious violation, since the overpayment was more than $5,000. [ 8 ] The Claimant asked the Commission to reconsider its decisions. Footnote 7 The Commission decided the Claimant wasn’t disentitled from receiving [NAME] benefits for a period of seven days, because he was outside Canada for a funeral. Footnote 8 The Commission decided the Claimant was disentitled from November 14, 2022, to January 6, 2023. It also modified its decision on availability, saying the Claimant hadn’t proven his availability for work from November 14, 2022, to January 6, 2023. Footnote 9 The Commission reduced the penalty to $1,531, taking the mitigating circumstances into account. Footnote 10 It maintained its decision on the issue of the violation. [ 9 ] The Claimant appealed to the General Division. The General Division dismissed his appeal. It decided the Claimant was entitled to benefits for seven days while outside Canada. Footnote 11 The General Division decided that the Commission had the power to review the Appellant’s benefits and used its discretion fairly when doing so. And, it decided the Commission had used its discretion properly when it imposed a penalty and issued a notice of violation. Footnote 12 [ 10 ] The Claimant asked for the Appeal Division’s permission to appeal the General Division’s decision. I gave permission to appeal. Issues [ 11 ] I must decide the following issues: a) Did the General Division base its decision on an important error of fact about the period during which the Claimant was outside Canada? b) If so, how should I remedy (fix) the error? Analysis [ 12 ] The grounds of appeal are set out in the law. I can intervene if the General Division made one of the following errors: It breached the principles of procedural fairness. It acted beyond its powers or refused to use its powers. It made an error of law. It based its decision on an important error of fact. Footnote 13 [ 13 ] I have reviewed the record and the General Division’s decision, listened to the recording of the General Division hearing, and reviewed the parties’ written submissions before making my decision. The parties agree the General Division made an important error of fact [ 14 ] In his application to the Appeal Division, the Claimant said that the General Division made errors of fact when determining the dates of his trip outside Canada. [ 15 ] The Commission agrees with the Claimant. The Commission says that the General Division based its decision on an erroneous finding of fact made without regard to the material before it when it decided that the Claimant had left Canada on November 8, 2022, and returned on January 6, 2023. Footnote 14 The General Division made a mistake in identifying the dates of the Claimant’s trip outside Canada [ 16 ] I agree that the General Division based its decision on an important error of fact. [ 17 ] An important error of fact can occur when the General Division misconstrues important evidence. Footnote 15 [ 18 ] In this case, the General Division misconstrued the evidence from the [NAME] when it determined on which dates the Claimant was outside Canada. These findings are important because they have an impact on the overpayment period. [ 19 ] The [NAME] sent the Commission’s [NAME] information about the Claimant’s travels. The [NAME] provided a written document stating that the Claimant had exited Canada on November 7, 2022, and re-entered Canada on January 8, 2023. Footnote 16 [ 20 ] The General Division made findings that were contrary to this evidence, despite the Claimant not disputing it. It wrote that the Claimant had left Canada on November 8, 2022, and that the Claimant returned to Canada on January 6, 2023. Footnote 17 [ 21 ] But the evidence from the [NAME] stated the Claimant exited Canada on November 7, 2022, and entered Canada once again on January 8, 2023. Footnote 18 These dates are different than the ones in the General Division’s findings. [ 22 ] Because the General Division based its decision on an important error of fact, I can intervene to correct the error. Remedy I am making the decision that should have been made [ 23 ] The parties want me to make the decision that should have been made. I have the power to replace the General Division’s decision with my own. The record is complete and there was no issue of procedural fairness. Footnote 19 So, I will make the decision that should have been made. The parties agree that the Claimant isn’t disentitled from being paid benefits from November 8, 2022, to November 14, 2022, inclusive [ 24 ] The Employment Insurance Act says that a claimant isn’t entitled to receive benefits for any period during which the claimant isn’t in Canada. Footnote 20 That being said, there are some exceptions to that rule. The [NAME] say that a claimant isn’t disentitled for being outside Canada for a period of not more than seven consecutive days to attend the funeral of a grandparent. Footnote 21 To benefit from this exception, the Claimant still had to show he was available for work. [ 25 ] The parties agree, and so do I, that the Claimant should not be disentitled for the first seven days he was outside Canada because he attended a family member’s funeral. Footnote 22 There is evidence on file that the Claimant’s grandfather died on November 6, 2022, and that the Claimant travelled to India for his funeral. Footnote 23 [ 26 ] Also, the General Division decided that the Claimant was available for work while he was outside of Canada. At the Appeal Division hearing, the Commission didn’t dispute the General Division’s findings that the Claimant was available under section 18 of the Employment Insurance Act in the context of applying section 55 of the [NAME] . So, I agree that the Claimant has proven he was available for work while outside Canada. [ 27 ] The first seven days during which the Claimant was outside Canada are from November 8, 2022, to November 14, 2022. The [NAME] provided reliable evidence of the Claimant’s departure from Canada on November 7, 2022. The Commission stated at the Appeal Division hearing that there was no evidence to show at what exact time the Claimant left Canada on November 7, 2022. It submitted to the Tribunal that the first day the Claimant spent outside Canada was November 8, 2022. The Claimant agreed. [ 28 ] This means that the Claimant isn’t disentitled from receiving regular [NAME]  benefits from November 8 to November 14, 2022, inclusive. [ 29 ] He is disentitled from November 15, 2022, to January 7, 2023. So, the overpayment is lowered to $4,976. Footnote 24 The Claimant doesn’t contest that he has to repay the benefits he wasn’t entitled to [ 30 ] At the Appeal Division hearing, the Claimant said he agreed to repay the benefits he received while outside Canada after the seven-day period during which he isn’t disentitled. [ 31 ] But the Claimant argues that he should not have to pay a penalty and that there should be no violation issued in his file. A penalty can be imposed if a claimant knowingly makes false statements [ 32 ] The law says that the Commission can impose a penalty if a claimant made a representation that they knew was false or misleading. Footnote 25 [ 33 ] The Claimant says that he didn’t knowingly make false representations. Footnote 26 He says that the following circumstances created confusion on his part: He believed exceptions applied. He tried to obtain guidance from Service Canada. He acted under emotion and stress while grieving his grandfather. [ 34 ] The Commission says that the Claimant knowingly made false statements. Footnote 27 It says the Claimant was asked clear questions, to which there was a clear yes or no answer. The Commission says the questions asked weren’t complicated and that objective factors should be weighed to assess whether the Claimant knew what he was saying. The Commission says there was no possible innocent interpretation for the misrepresentations. The Claimant made statements he knew to be false [ 35 ] I must decide whether the Claimant knowingly made a false statement on a subjective basis. Footnote 28 The Claimant wrote in his submissions that there had to be proof that he had subjectively known that he was making a false representation. He relied on Canada (Attorney General)  v  [NAME] to support his statement. Footnote 29 At the Appeal Division hearing, I pointed out to him that that case doesn’t support his statement. However, it is true the case law says that determining whether the Claimant knowingly made a false statement has to be established on a subjective basis. [ 36 ] I must decide if it is more likely than not that the Claimant knew that the statements he was making were false. In assessing that, I can also look at common sense and objective factors. So, if the Claimant denies knowing that he was making false statements, but “the whole world knows” that the statement is false, then I can still find that the Claimant knowingly made a false statement despite denying it. Footnote 30 [ 37 ] Once the Commission shows that a Claimant answered a very simple question wrongly, the Claimant must explain why the incorrect answer was given. Footnote 31 [ 38 ] I find that the Claimant did make statements he knew to be false. The Claimant admits he was outside Canada between November 8, 2022, and January 7, 2023. But when he filed his six [NAME] reports from India, he said he wasn’t outside Canada. [ 39 ] On November 11, 2022, while he was physically in India, he answered NO to the following question: “Were you outside Canada between Monday and Friday during the period of this report?” Footnote 32 [ 40 ] On, November 25, 2022, while he was physically in India, he answered NO to the following question, “Were you outside Canada between Monday and Friday during the period of this report?” Footnote 33 [ 41 ] On December 9, 2022, while he was physically in India, he answered NO to the following question: “Were you outside Canada between Monday and Friday during the period of this report?” Footnote 34 [ 42 ] On December 20, 2022, while he was physically in India, he answered NO to the following question: “Were you outside Canada between Monday and Friday during the period of this report?” Footnote 35 [ 43 ] On January 7, 2023, the day before he returned to Canada, he answered NO to the following question: “Were you outside Canada between Monday and Friday during the period of this report?” Footnote 36 [ 44 ] Those answers were objectively false. The Claimant recognizes he was outside Canada during that period. The Claimant knew where he was physically located, in India, when he attested that he was not outside Canada. [ 45 ] There is no evidence to show that the Claimant didn’t know where he was physically located at the time he answered the reports’ questions. [ 46 ] The Claimant says that certain factors should be considered when looking at whether he knowingly made false statements. The Claimant says that the following factors affected his understanding and judgment: He was grieving his grandfather’s death. He attempted to contact Service Canada for clarification on what he was entitled to. He believed there were exceptions allowed when travelling outside Canada for a funeral. [ 47 ] The Claimant says there was a reasonable innocent interpretation for his statements. He believed that travelling for a funeral meant he could still receive benefits. He continued to actively search for a job while abroad. And he tried to clarify what his obligations were. [ 48 ] But these factors didn’t affect his ability to know that he was in India when he said he wasn’t outside Canada. He hasn’t proven that his grief, his belief that he could still get [NAME] for traveling for a funeral, or his job search prevented him from knowing he was outside Canada while he was in India. [ 49 ] The Claimant was asked a simple question, and he responded with an objectively false answer. None of the circumstances listed by the Claimant affected his ability to know where he was located. [ 50 ] Faced with similar facts, the Federal Court of Appeal pointed out that when filling out [NAME]  reports, there are many warnings about rights and responsibilities to warn claimants against providing false statements. Footnote 37 The Federal Court of Appeal also pointed out that the question asking whether someone was outside Canada during the period of the report isn’t ambiguous and “very simple.” Footnote 38 [ 51 ] The evidence shows that the Claimant knew he might not get [NAME]  benefits if he declared he was outside Canada. [ 52 ] In his request for reconsideration, the Claimant wrote that he was afraid that reporting his absence would permanently terminate his benefits. Footnote 39 At the General Division hearing, the Claimant testified that his [NAME] benefits were his only source of income at the time. Footnote 40 He testified that if he said he was still in Canada, he would keep receiving [NAME] benefits. Footnote 41 He felt that he needed to maintain his only source of income. He testified that he stayed in India to save on rent and that is why, in addition to having COVID , he delayed his return. Footnote 42 [ 53 ] It appears the Claimant felt justified to make false statements because [NAME]  benefits were his only source of income. But the reason he made false statements isn’t relevant to determining whether he knew he made a false statement. His explanations don’t show that he didn’t know he was making false statements. Quite the opposite. [ 54 ] The evidence shows that he wanted to make sure he would keep getting his [NAME] benefits while he was outside Canada. This points to him having the knowledge that he was answering the questions incorrectly: He knew that if he answered honestly, he might lose his [NAME] benefits. [ 55 ] So, having examined the subjective understanding of the Claimant and the objective factors, I find that the Claimant knowingly made false statements when he said he wasn’t outside Canada, when in fact, he was. The Commission didn’t use its discretion judicially [ 56 ] The decision to impose a penalty is discretionary. That means that it is up to the Commission to decide whether to impose a penalty. And the Tribunal can only change the Commission’s decision to impose a penalty if it didn’t use its discretion judicially. [ 57 ] The Commission must use its discretion in good faith, consider all relevant factors and no irrelevant factors, and avoid acting in a discriminatory manner. Footnote 43 [ 58 ] Before the Appeal Division, the Commission says that it didn’t use its discretion judicially. The Commission says that it didn’t consider all relevant factors. It says that it didn’t consider the Claimant’s ill health at the time he made his false statements. And the Commission says that it didn’t consider the fact the Claimant testified about having health issues at the General Division hearing. At that time, the Claimant stated that he had health issues, which impacted his ability to work. That made it harder for him to repay a penalty. [ 59 ] The Claimant says he had health issues both when he was making his [NAME]  reports and at the time of the General Division hearing. [ 60 ] These factors weren’t clearly considered by the Commission when it determined the amount of the penalty. Footnote 44 So, the Commission failed to consider all relevant factors in setting the amount of the penalty. I am reducing the penalty to $498 [ 61 ] The Claimant made six false representations. Penalties are used to deter claimants from making false statements. Footnote 45 [ 62 ] The Commission now argues that a lower penalty is appropriate, considering the additional relevant factors. The Commission suggests that the appropriate penalty should be 10% of the overpayment: $498. [ 63 ] The Claimant appreciates the Commission’s position that the penalty should be lowered. But he still thinks the amount is too high and wants the penalty to be removed. The Claimant wants me to cancel the penalty entirely. [ 64 ] I can modify the amount of the penalty but can’t reduce it to $0. Footnote 46 I find that the amount suggested by the Commission, amounting to only 10% of the overpayment owed, is appropriate. It isn’t so significant that it would cause the Claimant undue financial hardship but is also high enough to act as a deterrent against making future false statements. I am removing the violation [ 65 ] The Commission wants the Appeal Division to remove the notice of violation from the Claimant’s file. [ 66 ] The Claimant also asks that the violation be removed. [ 67 ] Because the Claimant’s overpayment has been lowered to $4,976, the very serious violation is no longer appropriate. Indeed, a very serious violation is normally issued when the overpayment is $5,000 or more. Footnote 47 [ 68 ] So, I will remove the violation, since this is a discretionary decision and the Commission is now saying it no longer wishes to issue a violation. Conclusion [ 69 ] The appeal is allowed. The General Division made an important error of fact. I have made the decision that should have been made. [ 70 ] The Claimant isn’t disentitled from being paid [NAME] benefits for a seven-day period while he was outside Canada for his grandfather’s funeral, from November 8, 2022, to November 14, 2022, inclusive. [ 71 ] He is disentitled from receiving [NAME] benefits from November 15, 2022, to January 7, 2023, inclusive. [ 72 ] I am reducing the penalty to $498. [ 73 ] I am rescinding (removing) the notice of violation. Footnotes Footnote 1 See the record of Employment Insurance ( [NAME] ) payments at GD3-82. Return to footnote 1 referrer Footnote 2 See the questionnaire sent to the Claimant at GD3-49. Return to footnote 2 referrer Footnote 3 See the questionnaire filled out by the Claimant at GD3-50. Return to footnote 3 referrer Footnote 4 See the notice of decision at GD3-52. Return to footnote 4 referrer Footnote 5 See the notice of decision at GD3-52. Return to footnote 5 referrer Footnote 6 See the notice of decision at GD3-53. Return to footnote 6 referrer Footnote 7 See the reconsideration request at GD3-59. Return to footnote 7 referrer Footnote 8 See the notice of decision at GD3-71. Return to footnote 8 referrer Footnote 9 See the notice of decision at GD3-71. Return to footnote 9 referrer Footnote 10 See the notice of decision at GD3-73. Return to footnote 10 referrer Footnote 11 See the General Division’s decision at AD1A-5 at paragraph 29. Return to footnote 11 referrer Footnote 12 See the General Division’s decision at AD1A-2 at paragraph 4. Return to footnote 12 referrer Footnote 13 See section 58(1) of the  Department of Employment and Social Development Act . Return to footnote 13 referrer Footnote 14 See the Commission’s arguments at AD3-6. Return to footnote 14 referrer Footnote 15 See the Federal Court of Appeal’s decision [NAME]  v  Canada (Attorney General) , 2018  FCA  118 at paragraph 6. Return to footnote 15 referrer Footnote 16 See the information provided by the [NAME] at GD6-3. Return to footnote 16 referrer Footnote 17 See the General Division’s decision at AD1A-2 at paragraph 6. Return to footnote 17 referrer Footnote 18 See the information sent by the [NAME] to Service Canada at GD6-3. Return to footnote 18 referrer Footnote 19 See section 59(1) of the Department of Employment and Social Development Act . Return to footnote 19 referrer Footnote 20 See section 37(b) of the Employment Insurance Act . Return to footnote 20 referrer Footnote 21 See section 55(1)(b)(i) of the [NAME] . Return to footnote 21 referrer Footnote 22 See section 55(1)(b)(i) of the [NAME] . Return to footnote 22 referrer Footnote 23 See the death certificate at GD3-51 and the Claimant’s reconsideration request at GD3-59. Return to footnote 23 referrer Footnote 24 See the Commission’s submissions at AD3-8. Return to footnote 24 referrer Footnote 25 See section 38 of the Employment Insurance Act . Return to footnote 25 referrer Footnote 26 See the Claimant’s arguments at AD4-2 and after. Return to footnote 26 referrer Footnote 27 See the Commission’s arguments at AD3-7. Return to footnote 27 referrer Footnote 28 See the Federal Court of Appeal’s decision [NAME]  v  Canada (Minister of Human Resources Development), 2003  FCA  206, at paragraph 5. Return to footnote 28 referrer Footnote 29 See the Federal Court of Appeal’s decision Canada (Attorney General)  v  [NAME] , 2008  FCA  220. The Claimant referred to this decision in his written submissions at AD4-4. Return to footnote 29 referrer Footnote 30 See the Federal Court of Appeal’s decision Canada (Attorney General)  v  [NAME] (C.A.) , A-694-94. Return to footnote 30 referrer Footnote 31 See the Federal Court of Appeal’s decision Canada (Attorney General)  v  [NAME] (C.A.) , A-694-94. Return to footnote 31 referrer Footnote 32 See the Claimant’s report at GD3-20. Return to footnote 32 referrer Footnote 33 See the Claimant’s report at GD3-25. Return to footnote 33 referrer Footnote 34 See the Claimant’s report at GD3-30. Return to footnote 34 referrer Footnote 35 See the Claimant’s report at GD3-35. Return to footnote 35 referrer Footnote 36 See the Claimant’s report at GD3-40. Return to footnote 36 referrer Footnote 37 See the Federal Court of Appeal’s decision Canada (Attorney General)  v  [NAME] , 2017  FCA  104 at paragraph 17. Return to footnote 37 referrer Footnote 38 See the Federal Court of Appeal’s decision Canada (Attorney General)  v  [NAME] , 2017  FCA  104 at paragraph 15. Return to footnote 38 referrer Footnote 39 See the request for reconsideration at GD3-59. Return to footnote 39 referrer Footnote 40 Listen to the recording of the General Division hearing at 00:22:28. Return to footnote 40 referrer Footnote 41 Listen to the recording of the General Division hearing at 00:23:30. Return to footnote 41 referrer Footnote 42 Listen to the recording of the General Division hearing at 00:22:38. Return to footnote 42 referrer Footnote 43 See the Federal Court of Appeal’s decision Canada (Attorney General)  v  [NAME] , 2003  FCA  463 at paragraph 20. Return to footnote 43 referrer Footnote 44 See the mitigating circumstances the Commission considered: illness/death in the family, no prior incidents of misreporting, grandfather’s funeral, and financial difficulty. The Commission argues that the mention of illness or death in the family wasn’t related to the Claimant’s illness, but rather to his family member’s. So, the Commission says that the Claimant’s COVID illness should have been considered. Return to footnote 44 referrer Footnote 45 See the Federal Court of Appeal’s decision [NAME]  v  Canada (Attorney General) , 2006  FCA  111 at paragraph 14. Return to footnote 45 referrer Footnote 46 See the Federal Court of Appeal’s decision Canada (Attorney General)  v  [NAME] , 2002  FCA  219 at paragraph 11. Return to footnote 46 referrer Footnote 47 See the Digest of Benefit Entitlement Principles Chapter 18 – Section 18.10.3.1. Return to footnote 47 referrer