Appeal Success: Tribunal Must Refer Insurable Employment Questions to CRA

OUTCOME: Allowed

[TRANSLATION] Citation: CB  v  Canada Employment Insurance Commission , 2026  [NAME]  330 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Respondent: [redacted] Representative: [COUNSEL] under appeal: General Division decision dated December 1, 2025 (GE-25-2844) Tribunal member: [NAME] of hearing: Videoconference Hearing date: March 11, 2026 Hearing participants: Appellant Respondent Respondent’s representative Decision date: May 4, 2026 File number: AD-26-48 On this page Decision Overview Issues Analysis Remedy Conclusion Decision [ 1 ] The appeal is allowed. [ 2 ] The General Division made an error of law. [ 3 ] I am sending the file to the Employment Insurance ( [NAME] ) [NAME] for reconsideration. Overview [ 4 ] The Claimant, [APPELLANT]., applied for [NAME]  regular benefits on June 18, 2025. Footnote 1 The Canada Employment Insurance Commission (Commission) found that she hadn’t had enough hours of insurable employment in her qualifying period to qualify for benefits. Her qualifying period was from June 9, 2024, to June 7, 2025. Footnote 2 The Commission said that she needed 630 hours of insurable employment but had only 513. [ 5 ] The Claimant asked for this decision to be reconsidered. She said that she hadn’t been able to work because of an injury from November 24, 2024, to November 30, 2024. Footnote 3 So, the Commission changed its decision. Footnote 4 It extended her qualifying period, and it used the qualifying period from June 2, 2024, to June 7, 2025. The Commission then established that the [APPELLANT] had 458 hours of insurable employment. Footnote 5 The Commission found that she still didn’t qualify because she needed 630 hours of insurable employment. [ 6 ] The [APPELLANT] appealed this decision. The General Division dismissed her appeal, finding that she didn’t have enough hours of insurable employment to qualify for benefits. But the General Division said that verification had to be carried out with the Canada [NAME] ( [NAME] ). This was because the Claimant’s hours of insurable employment were inconsistent. Footnote 6 [ 7 ] The [APPELLANT] asked for permission to appeal, and I gave it. [ 8 ] The Commission concedes that the General Division made an error of law. Issues [ 9 ] I have to decide the following issues: Did the General Division make an error of law by dismissing the appeal before getting a decision from the [NAME] ? If so, what is the appropriate remedy? Analysis The grounds of appeal that allow the Appeal Division to intervene [ 10 ] The appeal has to involve one of the grounds of appeal set out in the Department of Employment and Social Development Act  ( [NAME]). Footnote 7 So, I have to decide whether the General Division made one of the following errors: The General Division breached the principles of procedural fairness. The General Division made an error of jurisdiction. The General Division made an error of law. The General Division based its decision on an important error of fact. Footnote 8 The General Division made an error of law by dismissing the appeal before the [NAME] decided the Claimant’s hours of insurable employment [ 11 ] The General Division acknowledged that the Claimant was disputing the number of insurable hours recorded on the Record of Employment ( ROE ) that the [COMPANY] had issued. Footnote 9 The General Division said that it didn’t have the power to change the number of her insurable hours. In his decision, the member asked the Commission to get clarification from the [NAME] about the number of insurable hours the Claimant had actually worked at the [COMPANY]. Footnote 10 But the General Division disposed of the appeal by dismissing it, before the [NAME] had given a decision on the number of hours of insurable employment. [ 12 ] The Claimant alleges that the General Division made an error of law by making a final decision on whether she was entitled to [NAME]  benefits, even though the exact number of hours of insurable employment worked at the [COMPANY] hadn’t been established. It had to be verified with the [NAME] . Footnote 11 [ 13 ] The Commission acknowledges that the General Division made an error of law. Footnote 12 The Commission argues that the General Division should have deferred proceedings pending the [NAME] decision, under section 131 (1)(a) of the Employment Insurance Act  ( [NAME]). The Commission argues that the purpose of deferring proceedings is to allow the [NAME] , the appropriate authority, to give a decision on the number of hours worked in insurable employment, under section 90(1)(d) of the [NAME]. Footnote 13 [ 14 ] I agree with the parties that the General Division made an error of law. The [NAME] requires the [NAME] to decide the questions specified in section 90 of the [NAME] [ 15 ] The [NAME] says that if, in the consideration of an appeal, a question specified in section 90 of the [NAME] arises, it has to be determined by an authorized officer of the [NAME] . Footnote 14 [ 16 ] Section 64 is called “Powers of tribunal.” Section 2 defines the Tribunal as the Social Security Tribunal. So, this provision is meant to specify the powers of the Social Security Tribunal. [ 17 ] Section 64 has 3 paragraphs. The first one is general. It says that the Tribunal may decide any question of law or fact that is necessary for the disposition of any application made or appeal brought under this Act. [ 18 ] The third paragraph deals specifically with theEI Act . The French version of section 64(3) reads as follows: (3) Si, au cours de l’examen d’une demande ou lors d’un appel, une question prévue à l’article 90 de la  Loi sur l’assurance-emploi  se pose, le fonctionnaire autorisé de l’Agence du revenu du Canada décide de cette question comme le prévoit cet article. [ 19 ] The English version of section 64(3) of the [NAME] reads as follows: (3) If a question specified in section 90 of the Employment Insurance Act arises in the consideration of an application or in an appeal, it must be determined by an authorized officer of the Canada [NAME], as provided by that section. [ 20 ] It is established that the English and French versions of a statute are authoritative statements. Footnote 15 They also have to express the same law and receive the same interpretation. Footnote 16 I find that the English version of the legislation removes any ambiguity regarding the [NAME] ’s obligation to decide questions. The use of the peremptory verb “must” indicates that any question specified in section 90 of the [NAME] that arises when an appeal is being considered must be decided by the [NAME] . [ 21 ] So, section 64, in its structure, says that the Tribunal may decide any question of law or fact. But, if there is a question specified in section 90 of the [NAME], it is the [NAME] that has to decide that question. [ 22 ] This is consistent with the case law of the Federal Courts. It is well established that the [NAME] has exclusive jurisdiction to decide questions related to the insurability of employment. Footnote 17 The [NAME] has exclusive jurisdiction to decide the hours of insurable employment [ 23 ] Section 90 of the [NAME] says that an employer, an employee, a [NAME] or an employee or the Commission may request an officer of the [NAME] to make a ruling on the following question, among others: how many hours an insured person has had in insurable employment Footnote 18 [ 24 ] Section 90, as it is written, says that the Commission, the employee, or the employer might ask the [NAME] to give a decision. This decision might then be appealed to the [NAME] or later to the Tax Court of Canada. Footnote 19 [ 25 ] But when a question like this comes up in an appeal before the Tribunal, how does it have to be referred to the [NAME] for the Tribunal to comply with section 64(3) of the [NAME]? [ 26 ] Parliament provided for an enforcement mechanism so that the Tribunal might get a decision from the [NAME] on questions that fall within the [NAME] ’s jurisdiction. This mechanism is set out in section 131 of the [NAME]. The enforcement mechanism set out in section 131 of the [NAME] [ 27 ] The [NAME] is divided into parts. Part VI deals with administrative provisions. In this part, there is a section called “Enforcement.” Footnote 20 This heading includes section 131, and it is called “Question under section 90.” The French version reads as follows: Question prévue par l’article 90 131 (1) Lorsque se pose au cours de procédures judiciaires une question prévue à l’article 90, le ou les juges de paix, le juge ou le tribunal qui en sont saisis doivent : a) si la question n’a pas été décidée par le fonctionnaire autorisé de l’Agence du revenu du Canada, la lui soumettre et suspendre les procédures jusqu’à réception de sa décision; b) sur réception de celle-ci, poursuivre l’audition et le jugement de l’affaire. Jugement différé (2) Cependant, en cas d’appel au [NAME] du Revenu national au titre de l’article 91 ou à la Cour canadienne de l’impôt au titre de l’article 103, le ou les juges de paix, le juge ou le tribunal doivent différer le jugement jusqu’à réception de la décision de ce [NAME] ou de la Cour canadienne de l’impôt. [ 28 ] The English version reads as follows: Question under section 90 131 (1) If a question specified in section 90 arises in any legal proceedings, the justice, judge or court before whom it arises shall (a) refer the question to an authorized officer of the Canada [NAME] under that section and defer further proceedings until the officer’s ruling is received, if the question has not been decided by the authorized officer; and (b) on receipt of the ruling, proceed with the hearing and judgment of the legal proceedings. Deferral of judgment (2) If an appeal has been made under section 91 or 103, the justice, judge or court shall defer judgment until (a) a decision of the [NAME] is received, in the case of an appeal under section 91; or (b) a decision of the Tax Court of Canada is received, in the case of an appeal under section 103. The General Division made an error by not applying section 131 (1) of the [NAME] [ 29 ] The Commission relies on this section in this case. The Claimant agrees that the General Division should have deferred proceedings and gotten the [NAME] decision before deciding her appeal. [ 30 ] The Social Security Tribunal’s General Division and Appeal Division don’t appear to have relied on section 131 of the [NAME] in the past. But many [NAME] ([NAME]) decisions applied an earlier version of this provision to defer their proceedings and refer a question about the insurability of employment to the [NAME]. [ 31 ] In fact, as early as 1985, in [NAME] 10229, [NAME] referred a question about the insurability of employment to the [NAME]. It cited legislative provisions that predated sections 90 and 131 of the [NAME], that is, sections 75.3 and 117 of the Unemployment Insurance Act, 1971 . Footnote 21 [NAME] noted that it was strange that a court would be required to refer a matter to the [NAME], but that, based on its interpretation of the Act, that was what it had to do. So, [NAME] deferred the appeal pending the [NAME]’s decision. [ 32 ] In another case, [NAME] 20023, [NAME] adjourned the review pending the [NAME]’s decision. Footnote 22 [NAME] asked the Registrar to forward a copy of its decision and file to the Minister for a real ruling as to insurable employment. [ 33 ] In [NAME] 25717, [NAME] noted that Parliament provided the following: When, in the course of legal proceedings, a question arises that relates to questions involving the insurability of employment, such as insurable earnings or the duration of an insurable job, the tribunal has to refer that question to the [NAME]. Footnote 23 [ 34 ] I agree with the [NAME]’ interpretation. [ 35 ] First, section 131 of the [NAME] says that it applies “[if] a question specified in section 90 arises in any legal proceedings.” [ 36 ] The [NAME] doesn’t define what constitutes legal proceedings. [ 37 ] The term “legal proceedings” might be interpreted, in a strict sense, to mean proceedings in connection with law courts or ordinary courts. This interpretation would exclude proceedings before administrative tribunals, such as the Social Security Tribunal. [ 38 ] But, depending on the context, the notion of “legal proceedings” might also be broadened to include administrative tribunals. Footnote 24 [ 39 ] It is clear from comparing section 64(3) of the [NAME] with section 90 of the [NAME] that the purpose of these provisions is the following: to give the [NAME] exclusive jurisdiction to decide questions related to the insurability of employment, like the number of insurable hours worked. [ 40 ] In the context of the [NAME]  program and considering the purpose of section 90 of the [NAME], I am of the view that the concept of legal proceedings includes proceedings before the General Division. This is because it allows for a question specified in section 90 of the [NAME] to be referred to an authorized officer of the [NAME] . At the same time, it constitutes the enforcement mechanism for the Tribunal’s obligation to refer certain questions to the [NAME] . [ 41 ] Second, section 131(1) of the [NAME] says that “the justice, judge or court” before whom a question specified in section 90 of the [NAME] arises has to refer it to the [NAME] . [ 42 ] I find that the term “court” includes the Social Security Tribunal. The [NAME] doesn’t define the term “court.” But the Social Security Tribunal’s enabling statute defines “Tribunal” as the Social Security Tribunal. Footnote 25 The term “court” is used in English, and the term “tribunal” is used in French. The Supreme Court has already interpreted the English term “court” as being able to include administrative tribunals. Footnote 26 This always depends on the context and the purpose of the law or provision. [ 43 ] Interpreting section 131 of the [NAME] as applying to processes initiated before the General Division achieves the following objective of Parliament: to refer the questions within the [NAME] ’s jurisdiction to that agency; and to make sure that the courts get a decision from the [NAME] on a question within its exclusive jurisdiction, before giving their decision in a case where that question arises. [ 44 ] Under the [NAME]  program, it is consistent that the Social Security Tribunal is required to refer a question specified in section 90 of the [NAME] to the [NAME] , and to defer its proceedings pending the decision. Parliament established the Social Security Tribunal to deal with [NAME]  appeals, among other things. [ 45 ] It would be inconsistent for Parliament to have intended to impose an obligation to refer and defer proceedings in criminal or civil matters, but not in matters brought before the Tribunal specialized in deciding issues relating to [NAME] . [ 46 ] I note that the General Division adopted a practice similar to that prescribed in section 131(1) of the [NAME]. In other words, the General Division defers proceedings to ask the Commission to get a decision from the [NAME] . Footnote 27 [ 47 ] But this practice carries a risk. If the Commission doesn’t refer a question to the [NAME] , the Tribunal would be placed in a difficult position: It would not be able to decide an issue that falls within the [NAME] ’s jurisdiction, and it would also not be able to get a decision directly from the [NAME] . [ 48 ] But the [NAME] expressly set out a way to enforce the obligation to get a decision from the [NAME] on the questions specified in section 90 of the [NAME]: The Tribunal has to refer the question to the [NAME] and defer its proceedings until it receives the [NAME] decision. A question specified in section 90 of the [NAME] was raised before the General Division [ 49 ] The Claimant clearly disputed before the General Division the number of hours of insurable employment recorded on her ROE that the [COMPANY] had issued. Footnote 28 At the hearing, she testified that the hours she worked as a [NAME] hadn’t been correctly accounted for. Footnote 29 At the General Division hearing, the Claimant said that it was common for [NAME] to record double the number of hours paid on the ROE s to reflect the number of hours worked. Footnote 30 She told the General Division that she had checked this with her union. Footnote 31 [ 50 ] The Claimant was disputing the hours of insurable employment that the employer had reported. Because of this, the General Division should have asked the [NAME] for a decision on this question under section 131(1)(a) of the [NAME]. It should have also deferred its process pending the [NAME] decision. [ 51 ] So, I find that the General Division made an error of law. [ 52 ] I can intervene to fix the error. Remedy I can’t accept new evidence [ 53 ] The parties told me the following: After the General Division gave its decision, the [NAME] gave two decisions on the number of hours of insurable employment the Claimant worked at the [COMPANY] during the qualifying period. [ 54 ] These decisions constitute new evidence because they were given after the General Division decision. [ 55 ] At the Appeal Division hearing, I received the parties’ arguments on whether they found that this new evidence could be admitted under an exception. [ 56 ] The generally recognized exceptions for the Appeal Division to admit new evidence are as follows: if the new evidence shows that the General Division had no evidence at all before it if the new evidence relates to a breach of procedural fairness if the new evidence provides general background information [ 57 ] The Commission argues that the [NAME] decisions show that there was no evidence, and that they should be accepted under this exception. [ 58 ] I disagree. The General Division had some evidence regarding the hours of insurable employment. It had multiple ROE s. But the Claimant said that the ROE the [COMPANY] had issued wasn’t correct. So, a decision from the [NAME] was needed. [ 59 ] So, the decisions that the [NAME] gave after the General Division decision don’t prove that the General Division had no evidence at all before it. [ 60 ] I note that the Appeal Division isn’t the fact-finder. Footnote 32 The Federal Court of Appeal said in [NAME] that the exceptions can’t apply in cases where admitting new evidence would be inconsistent with the Appeal Division’s role. Footnote 33 I am of the view that it would be inappropriate to admit, at the Appeal Division stage, decisions that don’t fall under one of the permitted exceptions. [ 61 ] As in [NAME] , it would be inappropriate to admit the [NAME] decisions into evidence. In [NAME] , the Federal Court of Appeal criticized the Appeal Division for admitting into evidence a judicial decision on the custody of children. In this case, the new evidence consists of administrative or quasi-judicial decisions. [ 62 ] It isn’t the Appeal Division’s role to analyze new evidence. I am sending the file to the [NAME]  [NAME] [ 63 ] Section 59(1) of the [NAME] allows the Appeal Division to give the decision that the General Division should have given or to send the matter back for reconsideration. [ 64 ] The Claimant would like me to give the decision that should have been given. She wants me to find that she worked a sufficient number of hours of insurable employment so that benefits are payable to her. [ 65 ] The Commission also wants me to give the decision that should have been given. But it wants me to find instead that the Claimant had 458 hours of insurable employment in her qualifying period, and so she doesn’t have the 630 hours required to get benefits. [ 66 ] I considered the parties’ submissions on the remedy they would like, but I can’t decide on that basis. [ 67 ] The record is incomplete. So, it has to be sent back for reconsideration. [ 68 ] First, the supporting documents needed to explain the Commission decision are missing. The Commission decision is to reduce the Claimant’s total number of insurable hours from 513 hours to 458 hours, after her qualifying period was extended. At the Appeal Division hearing, the Commission’s representative said that these documents weren’t on file. Footnote 34 The Commission’s representative said that a provisional statement had initially been issued. Footnote 35 She added that, after an official ROE was received, the hours of insurable employment were recalculated. Footnote 36 The Commission’s representative said that the letter confirming that the insurable hours had been recalculated wasn’t at [NAME]. Footnote 37 So, these documents would have to be on file so that the [NAME]  Board of Appeal can give a decision with all the necessary information. [ 69 ] The decisions that the [NAME] gave after the General Division decision are also missing. They will have to be considered during the reconsideration. [ 70 ] So, I can’t give the decision that should have been given because I don’t have a complete record. I don’t have to defer proceedings [ 71 ] After the hearing, the Commission argued that if the Claimant appealed the [NAME] decision to the Tax Court of Canada, I would have to defer proceedings before the Appeal Division under section 131(2) of the [NAME]. Footnote 38 [ 72 ] First, I took the file under reserve on March 25, 2026. The evidence that the Claimant is appealing to the Tax Court of Canada would constitute new evidence that doesn’t fall under any exception. [ 73 ] Then, the question specified in section 90 of the [NAME], regarding hours of insurable employment, was raised before the General Division. It was the General Division that should have referred the question to the [NAME] , and it should have deferred proceedings before deciding the Claimant’s appeal. [ 74 ] At the Appeal Division, the issues before me were as follows: Did the General Division make an error of law? If so, what is the appropriate remedy? [ 75 ] This means that the file has to go back to the first level for the matter to be reconsidered. Conclusion [ 76 ] The appeal is allowed. [ 77 ] The General Division made an error of law. [ 78 ] I am sending the file to the [NAME]  [NAME] for reconsideration. Footnotes Footnote 1 See the application for benefits at [NAME]-9. Return to footnote 1 referrer Footnote 2 See the notice of decision at [NAME]-24. Return to footnote 2 referrer Footnote 3 See the telephone notes at [NAME]-27. Return to footnote 3 referrer Footnote 4 See the reconsideration decision at [NAME]-29. Return to footnote 4 referrer Footnote 5 See the reconsideration decision at [NAME]-29. Return to footnote 5 referrer Footnote 6 See paras 30 and 31 of the General Division decision at AD1-18. Return to footnote 6 referrer Footnote 7 See section 58(1) of the Department of Employment and Social Development Act  ( [NAME]). Return to footnote 7 referrer Footnote 8 See section 58(1) of the [NAME] . Return to footnote 8 referrer Footnote 9 See para 6 of the General Division decision at AD1-14. Return to footnote 9 referrer Footnote 10 See para 2 of the General Division decision at AD1-14. Return to footnote 10 referrer Footnote 11 See the application to the Appeal Division at AD1-11. Return to footnote 11 referrer Footnote 12 See the Commission’s arguments at AD4-5. Return to footnote 12 referrer Footnote 13 See the Commission’s arguments at AD4-5. Return to footnote 13 referrer Footnote 14 See section 64(3) of the [NAME]. Return to footnote 14 referrer Footnote 15 See the Federal Court of Appeal decision in Canada (Attorney General)  v  [NAME] , 2011  FCA  268 at para 12. Return to footnote 15 referrer Footnote 16 See the Federal Court of Appeal decision in Canada (Attorney General)  v  [NAME] , 2011  FCA  268 at para 12. Return to footnote 16 referrer Footnote 17 See Federal Court of Appeal decisions in [NAME]  v  Canada (Attorney General) , 2025  FCA  18 at para 7; and [NAME]  v  Canada (Attorney General) , 2025  FC  1565 at para 36. Return to footnote 17 referrer Footnote 18 See section 90(1)(d) of the Employment Insurance Act  ( [NAME]). Return to footnote 18 referrer Footnote 19 See sections 91 and 103(1) of theEI Act. Return to footnote 19 referrer Footnote 20 See sections 125 and following of theEI Act. Return to footnote 20 referrer Footnote 21 [NAME] ([NAME]) 10229. Return to footnote 21 referrer Footnote 22 [NAME] 20023. Return to footnote 22 referrer Footnote 23 [NAME] 25717. Return to footnote 23 referrer Footnote 24 See, for example, the Tax Court of Canada decision in [NAME]  v  The Queen , 2012 [NAME] 306. In this decision, the notion of “legal proceedings” was interpreted more broadly to include, among other things, grievance procedures. See also, for example, the Court of Queen’s Bench for Saskatchewan in [NAME]  v  University of Saskatchewan , 2018 SKQB 92 at paras 44 to 48. In that decision, the Court decided that the modern definition of “legal proceeding” is expansive and inclusive. The definition isn’t limited to traditional proceedings brought before a judicial court. Legal proceedings might include cases brought before administrative tribunals. Return to footnote 24 referrer Footnote 25 See section 2 of the [NAME]. Return to footnote 25 referrer Footnote 26 See the Supreme Court of Canada decision in [NAME]  v  Ontario Hydro , [1995] 2 SCR 929 at para 66. The Supreme Court decided that a statutory tribunal might be considered a “court of competent jurisdiction” under section 24(1) of the Canadian Charter of Rights and Freedoms (Charter). See also the Supreme Court decision in R  v  [NAME] , 2010  SCC  22. In this decision, it was decided that the Ontario Review Board was a court of competent jurisdiction under section 24(1) of the Charter. Return to footnote 26 referrer Footnote 27 See the Appeal Division decision in PM  v  Canada Employment Insurance Commission , 2025  [NAME]  1122. This decision says that the General Division had deferred the appeal process to get a decision from the [NAME] on hours of insurable employment. See also, for example, the General Division decision in FD  v  Canada Employment Insurance Commission , 2023  [NAME]  411. Return to footnote 27 referrer Footnote 28 Listen to the recording of the General Division hearing at 0:06:48. Return to footnote 28 referrer Footnote 29 Listen to the recording of the General Division hearing at 0:16:45. Return to footnote 29 referrer Footnote 30 Listen to the recording of the General Division hearing at 0:07:38. Return to footnote 30 referrer Footnote 31 Listen to the recording of the General Division hearing at 0:36:00. The Claimant directed the member to an email from the [NAME] [[NAME]] regarding the calculation of working hours. See the email at GD7-1. Return to footnote 31 referrer Footnote 32 [NAME]  v  Canada (Attorney General) , 2022  FCA  157 at para 39. Return to footnote 32 referrer Footnote 33 [NAME]  v  Canada (Attorney General) , 2022  FCA  157 at para 37. Return to footnote 33 referrer Footnote 34 Listen to the recording of the Appeal Division hearing at 0:51:00. Return to footnote 34 referrer Footnote 35 Listen to the recording of the Appeal Division hearing at 0:51:35. Return to footnote 35 referrer Footnote 36 Listen to the recording of the Appeal Division hearing at 0:52:00. Return to footnote 36 referrer Footnote 37 Listen to the recording of the Appeal Division hearing at 0:52:25. The Commission’s representative referred to the notes of a telephone conversation held with the Claimant at [NAME]-27. In these notes, the Commission referred to 451 hours of insurable employment in the period from June 9, 2024, to June 7, 2025. Return to footnote 37 referrer Footnote 38 See the arguments that the Commission made after the hearing at AD8-1. Return to footnote 38 referrer