Claimant's Appeal Partially Allowed: Errors Corrected

OUTCOME: Allowed in Part

Citation: PS  v  [NAME_1] Commission , 2026  [NAME_2]  274 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Respondent: [redacted] Representative: [NAME_3] Decision under appeal: General Division February 9, 2026 (GE-25-3115) Tribunal member: [NAME_4] of hearing: Teleconference Hearing date: May 27, 2026 Hearing participants: Appellant Respondent’s representative Decision date: June 12, 2026 File number: AD-26-100 On this page Decision Overview Preliminary issue Issues Analysis Remedy Conclusion Decision [ 1 ] The appeal is allowed in part. [ 2 ] The General Division made errors of jurisdiction and law. I have corrected those errors and substituted my decision for that of the General Division. [ 3 ] I am allowing the appeal on the issue of voluntary leaving without just cause. I am disallowing the Commission’s reconsideration on this issue, so that the original decision to pay benefits stands. [ 4 ] I am dismissing the Claimant’s appeal on his availability for work after March 30, 2025. I confirm that the Claimant is disentitled to receiving benefits after March 30, 2025, because he was not available for work. Overview [ 5 ] [NAME_14]. is the Appellant. I will call him the Claimant because this appeal is about his claim for Employment Insurance ( [NAME_5] ) benefits. The Respondent is the [NAME_1] Commission, which I will call the Commission. [ 6 ] The Commission established a claim based on the Claimant’s July 2024 application, and began to pay benefits. In October 2024, the Claimant accepted a job offloading tires. He quit on the second day of work after finding the work too physically demanding. [ 7 ] The Claimant contacted the Commission in April to tell them that he had enrolled in a training program that had started on March 31, 2025. The Commission decided that the Claimant was disentitled to benefits from March 30, 2025, because he was not available for work. [ 8 ] The Commission also decided that the Claimant was disqualified from receiving benefits starting October 20, 2024. It found that he had voluntarily left his October employment without just cause. This decision meant that the Claimant would have to repay those benefits he should not have received. [ 9 ] The Claimant disagreed with the decision that he was not available while he went to school. He also disagreed that he did not have just cause for leaving his employment. He asked the Commission to reconsider, but the Commission would not change its decisions. He appealed to the General Division of the Social Security Tribunal, which dismissed his appeal. Now, he is appealing to the Appeal Division. [ 10 ] The appeal is allowed in part. [ 11 ] The General Division made an error of jurisdiction and an error of law in how it decided that the Claimant voluntarily left his job without just cause. It also made an error of fact when it found that the Claimant was not available for work. [ 12 ] I have substituted my decision for that of the General Division. I have found that the Commission did not act judicially when it reconsidered its acceptance of the claim and the payment of benefits to the Claimant. I have decided that the payment of the benefits from October 20, 2024, to March 29, 2025, should not be reconsidered. [ 13 ] I have corrected the error in how the General Division assessed the Claimant’s availability, but this does not change the result on that issue. The Claimant remains disentitled to benefits after March 30, 2025, because he was not available for work. Preliminary issue [ 14 ] In the hearing, I questioned whether the General Division had made an error of jurisdiction by not considering whether the Commission had reconsidered in a judicial manner. The Commission’s representative did not express concern with my question and provided a brief oral response. However, I considered that the issue could be important to my decision, so I offered both parties an opportunity to provide post-hearing submissions on this issue. [ 15 ] I asked the parties the following questions: Whether the April 14, 2026, decision (which the Commission correctly presumed to be a reference to its April 14, 2025, decision) was a reconsideration of benefits paid. If so, whether the General Division made an error of jurisdiction by failing to consider whether the Commission acted judicially. Whether the Commission did in fact act judicially when it reconsidered. Whether I can or should decide whether the benefit payments should be reconsidered. [ 16 ] I received submissions from the Commission dated June 9, 2026. The Claimant also provided a response on June 12, 2026. Issues [ 17 ] The issues in this appeal are: a) Did the General Division act in a way that was procedurally unfair? b) Did the General Division make an error of jurisdiction by failing to consider whether the Commission acted judicially when it reconsidered benefits it had paid the Claimant? c) Did the General Division make an error of law by failing to consider whether the Claimant’s working conditions posed a danger to his health? d) Did the General Division make an error in how it decided that the Claimant was not available for work? e) If the General Division made an error, how should the error be fixed? Analysis General legal principles for appeals to the Appeal Division [ 18 ] The Appeal Division may only consider errors that fall within one of the following grounds of appeal: a) The General Division hearing process was not fair in some way. b) The General Division did not decide an issue that it should have decided. Or, it decided something it did not have the power to decide (error of jurisdiction). c) The General Division made an error of law when making its decision. d) The General Division based its decision on an important error of fact. Footnote 1 The General Division did not act unfairly [ 19 ] When the Claimant completed his Application to the Appeal Division form, he selected the error of “procedural fairness” as one of the General Division’s errors. [ 20 ] The General Division did not make an error of procedural fairness. [ 21 ] I recognize that the Claimant disagrees with the General Division’s findings and with its decision, so he may feel that the decision result treats him unfairly. And he cannot afford to repay the benefits the Commission says he was overpaid. But procedural fairness is concerned with the fairness of the process. It is not concerned with whether a party feels that the decision result is fair. [ 22 ] Parties before the General Division have a right to certain procedural protections such as the right to be heard and to know the case against them, and the right to an unbiased decision-maker. This is what is meant by procedural fairness. [ 23 ] I explained the meaning of procedural fairness to the Claimant at his Appeal Division hearing, but the Claimant did not identify any action or inaction that would suggest the General Division process was unfair. The Claimant did not say that he did not have a fair chance to present his case at his hearing, or to respond to the Commission’s case. He has not complained that the General Division member was biased or that he had already prejudged the matter. [ 24 ] When I read the decision and review the appeal record, I do not see that the General Division did anything, or failed to do anything, that causes me to question the fairness of its process. [ 25 ] I will now review the General Division decision for other errors. [ 26 ] The reconsideration decision on appeal to the General Division was a decision on two issues. It decided that he did not have just cause for leaving, which meant he was disqualified from receiving the benefits that had already been paid (which were benefits for which he had qualified based on insurable hours before he quit his October job). It also decided that he was disentitled to receiving benefits after March 30, 2025, because he was not available for work. [ 27 ] The General Division considered both of these issues as well as the issue of whether the Claimant made “reasonable and customary job search efforts. [ 28 ] Because each of these issues are distinct and the consequences may be different, I will separately consider whether the General Division made errors in how it decided each issue. Disqualification issue: Voluntary leaving without just cause The General Division made an error of jurisdiction [ 29 ] The General Division failed to consider the issue of whether the Commission acted judicially in reconsidering benefits it had paid to the Claimant. [ 30 ] In his application to the Appeal Division, the Claimant selected the ground of appeal concerned with an error of jurisdiction. An error of jurisdiction is where the General Division makes a decision it is not authorized to make, or where it fails to make a decision that it is required to make. [ 31 ] The General Division’s jurisdiction is normally limited by the issues described in the reconsideration decision. In this case, the two issues were whether the Claimant voluntarily left his job without just cause on October 23, 2024, and whether he was available for work from March 30, 2025. Footnote 2 [ 32 ] However, because the Commission decided that the Claimant left his job without just cause, it retroactively disqualified the Claimant and declared an overpayment for those benefits paid to the Claimant from October 20, 2024, up to and including the week of March 23, 2025. [ 33 ] I appreciate the Commission’s position that it was deciding a new issue concerning the Claimant’s reason for leaving his brief employment in October, but it was not a “new issue” as far as the benefits paid to the Claimant. [ 34 ] The Claimant had been qualified for a certain number of weeks of benefits based on his hours of employment in the qualification period prior to his original employment. The Commission continued to pay the Claimant benefits beyond October 20, 2024, which was the date he should have been disqualified according to the Commission’s decision of April 14, 2025. The effect of that decision was to recall benefits for which the Claimant had previously qualified. The Commission’s attempt to recover those benefits is therefore a reconsideration of benefits paid based on the original qualification. [ 35 ] The Commission’s disqualification and its efforts to recover benefits paid to the Claimant may well have been justified based on the new information that it used for the disqualification, but this was still a reconsideration. [ 36 ] I accept that the Commission was reconsidering whether the Claimant should have received the benefits that it paid to him after he quit his job in October 2024. Any decision to reconsider benefits is a discretionary decision. Footnote 3 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 4 [ 37 ] If the Commission did not act judicially, its reconsideration decision is invalid. Therefore, the General Division also has jurisdiction over the manner in which the Commission exercised its discretion when it reconsidered. [ 38 ] The Claimant was on [NAME_5] benefits when he accepted a job loading and unloading tires. He quit on October 23, 2024, which was his second day of work. He quit because he felt he was not physically capable of the demands of the job. The Commission continued to pay him benefits up to and including the week of March 23, 2025. [ 39 ] In his application to the Appeal Division, the Claimant stated that a Commission agent said he could work while on claim without any problem. He stated that he “would not have taken the money” (although it is not clear if he means the [NAME_5] benefits, or if he is referring to the pay that he received from the employer for the brief period he was working). He states that he cannot now afford to pay back the benefits he received. [ 40 ] The Claimant’s position is that he should not now have to pay back these benefits because he accepted them believing that he was entitled to them. This could imply that he believes the Commission acted improperly when it reconsidered his benefits, and that the General Division should have turned its mind to this issue. [ 41 ] But the General Division gives no indication that the member was even aware that the Commission had employed a discretionary power to reconsider the Claimant’s benefits. Apparently, it did not turn its mind to whether the Commission acted “judicially,” when it reconsidered the benefits it paid the Claimant. [ 42 ] The Appeal Division has previously found that the General Division makes an error of jurisdiction when it fails to consider this question. Footnote 5 I am not bound by the reasoning of other Appeal Division decisions, but I nonetheless agree. [ 43 ] I accept that the General Division made an error of jurisdiction by not considering whether the Commission acted judicially when it reconsidered. The General Division made an error of law [ 44 ] The General Division failed to make a finding as to which circumstances were relevant to the Claimant’s reasonable alternatives or to analyze the effect of his circumstances on his reasonable alternatives. [ 45 ] The Claimant selected “error of law” in his application to the Appeal Division without specifying the nature of the error. However, the Appeal Division’s leave to appeal decision identified an argument that the General Division may have made an error of law when it granted leave to appeal. It said that the General Division may not have considered whether the Claimant’s working conditions posed a danger to his health. [ 46 ] The legal test for whether a claimant has “just cause” for leaving their employment, is based on whether the claimant has reasonable alternatives, having regard to all the circumstances. The Employment Insurance Act ( [NAME_5] Act) provides a non-exhaustive list of circumstances that will be relevant where they are suggested by the facts. [ 47 ] The Claimant told the General Division that he left his job because it was too physically difficult for him to lift and move the tires alone. He said that his lower back hurt and that he was concerned that he could become sick from the work, and that his work could worsen his condition. Footnote 6 The General Division appears to have accepted that the Claimant left his job for the reasons that he gave. [ 48 ] The Claimant’s evidence suggested that the Claimant’s working conditions may have posed a danger to his health, so the General Division was required to consider whether that circumstance was actually present. [ 49 ] In the hearing, the General Division questioned the Claimant about his work duties and about how they affected his health. And its decision recognized that the Claimant was claiming he had no reasonable alternative to leaving because his job was “very difficult for his health.” Footnote 7 So, I accept that the General Division was aware that any risk to the Claimant’s health or safety arising from his working conditions was relevant to its decision. [ 50 ] However, the General Division failed to make a finding that the Claimant’s working conditions did or did not pose such a risk. I acknowledge that the General Division observed that the Claimant did not provide a medical report confirming that his job posed such a risk or that he required an accommodation. However, it did not make a connection between that observation and its decision. It did not say that it was drawing an adverse inference from the lack of specific medical evidence. [ 51 ] Nor did the General Division analyze the effect of the Claimant’s circumstances on his reasonable alternatives. When it noted that the Claimant had not requested a leave of absence and that he could have sought other employment (before quitting, presumably), it did not explain how either of those alternatives could have relieved or mitigated the Claimant’s stated inability to perform the work without injury or risk of injury. [ 52 ] The General Division made an error of law. It failed to consider or analyze whether the Claimant’s working conditions were a risk to his health or safety or whether any such risk affected his reasonable alternatives. Disentitlement issue: Reasonable and customary efforts The General Division made an error of jurisdiction when it considered whether the Claimant had made reasonable and customary efforts [ 53 ] The General Division found that the Claimant had not made “reasonable and customary” efforts to find a job. It said that it had to consider whether the Claimant was available by looking at this part of the law, as well as whether he was available for work under another section of the law. Footnote 8 [ 54 ] “Reasonable and customary efforts” are defined in section 9.001 of the Employment Insurance Regulations for the purpose of section 50(8) of the [NAME_5] Act. Section 50(8) says that the Commission may require a claimant to prove that they have made reasonable and customary efforts. Section 50(1) says that a claimant who fails to comply with a requirement under the section (including the section 50(8) requirement) is disentitled until they comply. [ 55 ] There is no evidence that the Commission required the Claimant to prove reasonable and customary efforts, and the reconsideration decision that was on appeal to the General Division said nothing about disentitling the Claimant for failing to provide required information. [ 56 ] This issue was not before the General Division. [ 57 ] The General Division made an error of jurisdiction by considering whether the Claimant satisfied the reasonable and customary effort criteria. Disentitlement issue: Availability under section 18(1) of the [NAME_5] Act [ 58 ] Although the General Division should not have considered whether the Claimant was disentitled for not having made “reasonable and customary efforts,” it also found that he was disentitled after March 30, 2026, because he was not “available for work” under section 18(1) of the [NAME_5] Act. [ 59 ] Section 18(1) says that a Claimant is disentitled to benefits for each working day in their benefit period that they cannot show that they were “capable of and available for work and unable to find suitable employment”. The General Division did not make an error of law when it found that the Claimant was not available under section 18(1) of the [NAME_5] Act. [ 60 ] The Claimant did not identify how the General Division made any error of law in deciding that he was not available. [ 61 ] There is no error of law on the face of the decision. The General Division considered the Claimant’s availability under section 18(1) of the [NAME_5] Act, as it was required to do. It applied the [NAME_6] test and analyzed the Claimant’s availability according to the three factors identified in the [NAME_6] test. Footnote 9 [ 62 ] The General Division did not make an error of law on this issue. The General Division made an error of fact in how it evaluated the Claimant’s desire to return to work [ 63 ] The General Division’s decision on availability was based on its findings that the Claimant did not satisfy two of the [NAME_6] factors. It found that he did not prove that he desired to return to work as soon as a suitable job was available, and it also found that he did not prove that his job search was sufficient to prove his desire to return to work. [ 64 ] The Claimant did not point to a specific error of fact, but the General Division’s finding that he did not show he had a desire to return to work is perverse or capricious. In other words, it does not follow rationally from the evidence. [ 65 ] The Claimant’s evidence was that he was looking for work during his schooling, which required 9 hours a week of training and an additional 3 hours a week of homework. He also said that his training was supposed to run until the end of July, but that he quit the training in June 2025 when he found a job. [ 66 ] When the General Division considered the Claimant’s desire to return to work, it said that he was vague. The fact that the Claimant was unable or unwilling to provide details of his job search would absolutely be relevant to whether he could satisfy the General Division that his job search was adequate. However, the General Division did not say why the Claimant’s vagueness led it to find that he did not desire to return to work. The “vagueness” of his recollection does not presumptively support a finding that he had no desire to find work. Either the General Division failed to explain the logical bridge between the evidence and its conclusion, or no such bridge exists. [ 67 ] When the General Division considered whether the presumption of non-availability applied to the Claimant because he had been taking language lessons, it found that the Claimant could not be presumed to be unavailable just because of those lessons. Nonetheless, when it considered whether the Claimant wanted to go back to work, it stated that he chose those lessons, “ rather than focus on his job search.” [ 68 ] There was no evidence to support that conclusion. The Claimant never suggested that he chose his lessons over his job search. In fact, he told the Commission on April 4, 2025, that he would be willing to quit if it conflicted with full time work. Footnote 10 [ 69 ] He also testified that he found work while he was still in his studies, and that he quit his lessons prematurely to accept work. I appreciate that this testimony is evidence of what happened after the Commission had already found that he was not available. The fact that he might have been able to prove his availability in June 2025 by his actions, does not mean that he could also prove his availability earlier. Nonetheless, his later actions support the credibility of his earlier statement. The fact that he later quit to take a job, after investing time and effort into the language training, supports his earlier statement that he would quit his studies for full time work. [ 70 ] The General Division made an error of fact. The evidence that it relied on does not rationally support its finding that the Claimant did not have a desire to return to work as soon as a suitable job was available. The General Division did not make an error of fact in how it evaluated the Claimant’s job search efforts [ 71 ] The General Division did not make an error of fact in how it assessed the Claimant’s efforts to find a suitable job. [ 72 ] It explained that it did not accept that the Claimant’s efforts were sufficient. It did not accept that the Claimant’s evidence about the extent of his efforts was credible. The Claimant said that he had been checking the internet, going to companies, applying for jobs, and attending interviews, but he could not name any to which he had applied (other than the one that finally hired him) or say anything about how many applications he made. [ 73 ] The General Division is the primary trier of fact. It is its role to decide what weight to give different pieces of evidence and to evaluate the evidence overall. It explained that it did not accept the Claimant’s evidence about the extent of his job search efforts because of the vagueness of his responses. It was entitled to do so. [ 74 ] The Claimant may disagree with how the General Division assessed his evidence, but the Appeal Division has no authority to interfere with how the General Division has weighed or evaluated the evidence, even if it does not agree with the General Division conclusions. Footnote 11 [ 75 ] The General Division did not make an error of fact when it found that the Claimant did not satisfy the job search [NAME_6] factor. Remedy [ 76 ] I have found that the General Division made errors of jurisdiction and law in how it decided that the Claimant left his job without just cause. I have said that the General Division should have decided if the Commission acted judicially, and it should also have considered and analyzed “all of the circumstances,” including any risk to his health or safety from his working conditions. [ 77 ] I have also found that the General Division made an error of fact when it decided that the Claimant was not available. Its finding on one of the [NAME_6] factors did not follow rationally from the evidence. It was “perverse or capricious.” [ 78 ] Now I have to decide what I should do about those errors. I have the power to send the matter back to the General Division to reconsider, or I may make the decision that the General Division should have made. Footnote 12 . [ 79 ] Both the Commission and the Claimant ask that I make the decision the General Division should have made. The Commission suggests that I should dismiss the appeal. The Claimant wants me to find that he had just cause for leaving and that he continued to be available for work while he was in school. He says he would have nothing new to add if the matter were returned to the General Division. [ 80 ] I agree that I can make the decision. Although the General Division did not address whether the Commission acted judicially, there is no new evidence to be considered. Disqualification issue: Voluntary leaving without just cause The Commission did not act judicially in reconsidering the Claimant’s benefits based on its disqualification [ 81 ] The Commission did not act judicially when it found that the Claimant had voluntarily left his employment without just cause and reconsidered the payments it had paid him. [ 82 ] The Commission only reconsidered the benefits it paid between October 2024 and March 2025 after it received a Record of Employment ( ROE ) from the employer. This ROE showed that the Claimant worked on October 22 and October 23, 2024, only, and that he quit his job on October 23, 2024. The [NAME_7] supplemental submission to the Appeal Division states that it reconsidered in response to the new ROE evidence. Footnote 13 The reconsideration file does not include any explicit justification for why the Commission decided to reconsider, but the ROE evidence is the only evidence on the record that could have supported its decision to reconsider. [ 83 ] The Commission declared an overpayment after determining that the Claimant left his job without just cause. It is clearly authorized to do so under the law. The [NAME_5] Act says that a claimant is disqualified from receiving benefits if they voluntarily leave their job without just cause. Footnote 14 It also says that claimants are liable to repay any amount paid by the Commission for any period for which the claimant is disqualified, and that such amounts are debts to the Crown. Footnote 15 [ 84 ] The Claimant has not suggested that the Commission acted in bad faith by reconsidering, or that it acted with an improper purpose, or discriminated against him. However, the Commission must also consider all the relevant factors and disregard irrelevant factors when it exercises its discretion. [ 85 ] One relevant factor would be whether the Commission made a mistake in paying out benefits despite having the information it required to make the correct payment decision. I take notice that the Commission has policy which states that it will not reconsider where it had all the relevant information to make the correct decision but instead made a decision that was not supported by the information (the “mistake” policy). Footnote 16 [ 86 ] In this case, I accept that the Commission relied on the new ROE from the October employment, which would have been relevant to whether the Claimant was employed on October 22 and 23, and to whether he quit his job. It also relied on its internal attestation certificate that benefits were paid from October 20, 2024, to March 29, 2025. [ 87 ] However, this evidence was not combined with any evidence of the Claimant’s reason for quitting. The Commission’s only discussion with the Claimant after October 2024 was concerned with his availability for work once he went to school. The Commission did not ask him why he quit his job. Nor did it contact the employer. [ 88 ] The reconsideration file does not reveal when the Commission received the ROE , but it could not have been before November 7, 2024, since that is the date on the ROE itself. [ 89 ] I take notice that employers normally submit ROE s to the Commission electronically. In the absence of evidence to the contrary, I find that the Commission had the ROE evidence at or about the date on the ROE form, so I accept that the Commission had the ROE evidence on Friday, November 8, 2024. [ 90 ] As noted, the Commission’s mistake policy says it will not reconsider in those circumstances where it had all the relevant information to make the correct decision but nonetheless made a decision that was not supported by the information. According to this policy, the Commission could make the argument that it was authorized to reconsider benefits that were paid prior to November 8, 2024, since it did not have any evidence before November 8 that the Claimant had been working at the end of October. [ 91 ] However, the Commission continued to pay benefits for the week beginning November 10, 2024, and all subsequent weeks up to and including the week ending March 29, 2025, despite having had the ROE evidence by November 8. [ 92 ] If the new ROE were the only evidence the Commission required to make a payment decision on benefits, it had this information by November 8, 2024. It may have paid benefits earlier simply because it did not have the ROE information, but it would have paid benefits after November 8 by “mistake.” The Commission’s mistake policy is a relevant factor, but there is no evidence in the reconsideration file to suggest that it was considered by the Commission. [ 93 ] The Appeal Division have held that the Commission’s reconsideration policy is a relevant factor. Footnote 17 I take notice that this policy states that the Commission will reconsider a claim when: Benefits have been underpaid. Benefits were paid contrary to the structure of the [NAME_5] Act. Benefits were paid as a result of a false or misleading statement. The claimant ought to have known there was no entitlement to the benefits received. Footnote 18 [ 94 ] The reconsideration file does not show that the Commission’s reconsideration policy, or any of the specific factors in its policy, were considered by the Commission. The reconsideration decision concerned the adjudication of the Claimant’s reason for separation, so it does not appear that the benefits were paid contrary to the structure of the Act. [ 95 ] In its recent submission, the Commission suggests that it had reconsidered because benefits were paid as a result of a false statement. The Commission says that the Claimant did not inform the Commission of his brief employment in his claim reports. [ 96 ] The appeal record does not include the claim reports or any other evidence of a false statement. This lack of direct evidence is not determinative. It does not mean that the Commission could not have decided to reconsider because of a false statement. But, at the same time, the Commission includes only what it believes to be relevant in the reconsideration file disclosed to the General Division. So, it would seem that it did not know that the claim report evidence could be relevant to the issues in this case. [ 97 ] Furthermore, the Commission decided to reconsider only after the Claimant disclosed that he was going to school. Its investigation was focused on his training and his availability for work. There is no indication that it ever reviewed the Claimant’s report cards, that it understood him to have made a false or misleading statement, or that this was considered when it decided to reconsider. [ 98 ] Nor did the Commission consider whether the Claimant ought to have known he was not entitled to the benefits he was paid. There was at least some evidence to suggest that the Claimant had no reason to believe he was not entitled to the [NAME_5] benefits he was paid. The Claimant does not speak English fluently and was unsophisticated to the [NAME_5] benefit program as well as the appeal process. His appeal materials suggest that he believed the Commission had approved him to accept the job and that he had no idea he could lose his benefits if the job duties were too physically demanding for him to continue. [ 99 ] Finally, I note that the Commission would also have required some evidence on which to conclude that the Claimant left his job without just cause, before it reconsidered the payment of benefits. It did not obtain any evidence about the reason for, or circumstances surrounding his quitting, so it had no evidentiary basis for its April 14, 2025, decision. [ 100 ] The absence of any evidentiary foundation or analysis to support the finding which caused it to reconsider, is a relevant factor. The Commission reconsidered without regard for this factor. [ 101 ] To summarize, the Commission did not consider its policy when it reconsidered. Nor did it consider whether there was evidence supporting its disqualification decision— which was the basis for its reconsideration. That means it failed to consider all the relevant factors, so it did not act judicially. The Claimant’s benefits will not be reconsidered on the basis of the disqualification [ 102 ] Because the Commission did not act judicially when it reconsidered, I must decide whether the Claimant’s benefits should have been reconsidered. [ 103 ] Other decisions of the Appeal Division confirm I have the authority to decide this issue. Footnote 19 The General Division had the authority to give the discretionary decision the Commission should have given, and I am now giving the decision the General Division should have given. [ 104 ] As I have already discussed, the Commission’s reconsideration policies are relevant to the decision to reconsider. Mistake policy [ 105 ] In this case, the Commission reconsidered on April 14, 2025, because it discovered that the Claimant had been briefly employed in October 2024, and had quit. Until it received the evidence of that employment, it continued to pay the Claimant benefits based on how the Claimant separated from his earlier employment. So, it was not based on a Commission mistake. [ 106 ] However, I have found that the Commission had the ROE evidence of the Claimant’s October employment by November 8, 2024. The ROE stated that the Claimant quit his job. The Commission continued to pay benefits to the Claimant until the end of March 2025. It took no action until April 14, 2025, when it reviewed the Claimant’s file after the Claimant let the Commission know he had been going to school. [ 107 ] In my view, it is relevant that the Commission had the ROE for about five months and did not investigate whether the Claimant should be entitled to benefits. All the benefits paid for the week beginning November 10, 2024, and all the subsequent weeks up to and including the week ending March 29, 2025, are attributable to the Commission’s “mistake” in failing to investigate. [ 108 ] The mistake policy is a relevant factor. If I were to be persuaded by the Commission’s mistake policy alone, I would find that the Commission could only reconsider the benefits paid up to November 8, 2025. Other reconsideration policies. [ 109 ] The Commission also has a policy that says it is appropriate to reconsider when any of four conditions is true. I also consider these conditions to be relevant factors. [ 110 ] These conditions were identified earlier in the decision, but I will review whether any of those conditions is true: [ 111 ] The first condition is not true. I agree that the claim decision should be reconsidered if it resulted in an underpayment to the Claimant. In this case, the Claimant is said to have been overpaid – not underpaid. [ 112 ] The second condition is not true. I might reconsider if I found it necessary to avoid a decision contrary to the structure of the Act. However, the Commission’s reconsideration was based on its understanding that the Claimant quit his October job without just cause. But according to its policy, “structure of the Act” excludes a “contentious reason for separation.” The reason for the reconsideration in this case would not cause me to reconsider. [ 113 ] The third condition is also not true. [ 114 ] When I considered whether the Commission acted judicially, I found that it did not base its reconsideration decision on the Claimant false statements. But now I must independently decide whether to reconsider. [ 115 ] The Commission’s policy says it can reconsider where there has been a false or misleading statement. I have considered this, but I am not persuaded to reconsider. [ 116 ] I appreciate that the reconsideration file includes an attestation as to the benefits that were paid to the Claimant. The attested data shows that the Claimant was paid an unreduced benefit in the week of October 20 to October 26. This suggests that the Claimant may not have declared that he worked or had earnings on either October 22 or October 23. [ 117 ] However, I am not prepared to infer that he made a false statement from this chart of paid benefits, when it is so obvious that the Commission should have had clear and direct evidence on which false statements could have been established. [ 118 ] The Commission would have obtained report claims with the Claimant’s declarations in the course of paying his weekly benefits. It presumably has custody of those reports, but it failed to disclose them to the General Division. Further, none of its notes or correspondence assert that the Claimant made a false statement (until its recent submission to the Appeal Division). And it has never decided that the Claimant made a false statement or imposed a penalty or violation. [ 119 ] The final condition is also not true. I do not accept that the Claimant knew or ought to have known he was not entitled to the benefits he received. [ 120 ] The Claimant said that he would not have “taken the money (or accepted the benefits) … if it come like this.” ( sic ). This could mean that he would not have accepted benefits if he knew he was not entitled to them, but it could also mean that he would not have accepted the benefits if he had known he would have to pay them back. Regardless, the Claimant has never said he knew he was not entitled to the benefits and I cannot infer it from the evidence in the record. [ 121 ] Before the Claimant called the Commission to inform it that he was going to school, the Commission had not said anything to indicate there was a problem with his benefits. The Claimant’s call to the Commission suggests that he was trying to be open and upfront. In my view, it is completely plausible that he would have had no idea that he could jeopardize his benefits through his very brief attempt to work at a job that, in his mind, was so difficult that he was going to get sick or hurt. [ 122 ] The Claimant does not fit within any of the reconsideration policy approved by the Commission. My review of the policy does not support reconsidering in this case. Missing evidentiary foundation [ 123 ] Finally, I consider it relevant that the Commission reconsidered its decision and found that the Claimant left the job without just cause, without actually obtaining positive evidence to support its decision. [ 124 ] I appreciate that the Commission eventually attempted to reach the Claimant. It left two messages with the Claimant on April 9 and April 10, and it emailed him on April 10. It also left two messages with the employer on April 10 and 11. It was unsuccessful in these attempts to reach either the Claimant or the employer and made no further contact efforts before making its decision. [ 125 ] As soon as it received the Record of Employment, it could have demanded that the Claimant provide information about his reasons for leaving and the circumstances of his employment (under section 50(5) of the [NAME_5] Act) and it could then have suspended his entitlement under section 50(1) of the [NAME_5] Act if the Claimant did not comply. [ 126 ] There was no compelling reason for the Commission to reconsider without completing a proper investigation. It had about 2 ½ years before it was statute barred from reconsidering. It stopped payments by April 14 at the latest but could have stopped them as early as March 30, 2025. It could have waited to reconsider while it investigated and collected evidence to support its disqualification decision, without and risk or prejudice. [ 127 ] The fact that the Commission made its decision without evidence to justify the disqualification, is relevant to my own decision on reconsideration. I am not finding that the Commission was acting in bad faith but it was exceedingly casual about the Claimant’s right to a fair process when it concluded the Claimant left his job without just cause without obtaining either his input or that of the employer, or any other evidence of the circumstances surrounding his October employment. Summary of factors considered and decision [ 128 ] To summarize, I have decided that the Claimant’s benefits should not be reconsidered for the following reasons: Almost all of the benefits paid to him were paid due to the Commission’s failure to review or act on the ROE in its possession. There is no justification found in the Commission’s reconsideration policy for reconsidering. The Commission’s reconsideration decision was based on a superficial investigation which yielded no evidence to support a necessary finding of fact. Disentitlement issue: Availability for work The Claimant is not available for work after March 30 [ 129 ] The decision that the Claimant was not available after March 30, 2025, was not a reconsideration decision. [ 130 ] The relevant section of the [NAME_5] Act reads as follows: 18(1). A claimant is not entitled to be paid benefits for a working day in a benefit period for which the claimant fails to prove that on that day the claimant was (a) Capable of and available for work and unable to obtain suitable employment. [ 131 ] This means that “availability for work” is assessed on an ongoing basis. A claimant, who can no longer prove that they are available for work, is not entitled to benefits unless and until they can again prove they are available. [ 132 ] When the Commission learned that the Claimant was going to school, it decided he was unavailable after March 30. The Claimant disagreed and appealed to the General Division. [ 133 ] The General Division was able to make a decision on whether he was available for work after March 30, without having to consider whether the Commission had acted “judicially.” This is because the Commission had not “reconsidered” his availability. It had assessed his current availability according to section 18(1)(a). [ 134 ] As noted, the General Division made an error of fact when it found that the Claimant did not desire to return to work as soon as suitable employment was available. [ 135 ] I accept that he had a desire to return to work because his unchallenged evidence was that he would quit his part-time school to go back to work. [ 136 ] Even so, numerous decisions of the Tribunal have held that a claimant must satisfy all three of the [NAME_6] factors to be found available for work. [ 137 ] I have not discovered any error in how the General Division found that the Claimant’s job search did not satisfy the requirements of the second [NAME_6] factor. There is no basis for me to intervene in the General Division’s finding of fact. I adopt the General Division’s reasons, and confirm that the Claimant’s job search efforts were inadequate. [ 138 ] I recognize that the Claimant satisfies the other [NAME_6] factors. Nonetheless. I am persuaded that he was not available for work, because his job search efforts were inadequate. [ 139 ] This means that the Claimant was not available for work after March 30, 2025. Conclusion [ 140 ] The appeal is allowed in part. [ 141 ] The Claimant is not disqualified from receiving benefits for having left his job without just cause. The Commission did not act judicially when it reconsidered its decision, and I have decided that its payment of benefits flowing from his original qualification should not be reconsidered. [ 142 ] The Claimant is disentitled to benefits paid from March 30, 2025, because he was not available for work. Footnotes Footnote 1 This is a plain-language version of the three grounds. The full text is in section 58(1) of the Department of Employment and Social Development Act ( DESDA ) . Return to footnote 1 referrer Footnote 2 The October 15, 2025, reconsideration decision (GD3-42) maintained the decisions on the issues of “just cause” and “availability”, which are set out in the decision of April 14, 2025 (GD3-23). Return to footnote 2 referrer Footnote 3 See section 52 of the [NAME_5] Act. Return to footnote 3 referrer Footnote 4 [NAME_8]  v  Canada (minister of Citizenship and Immigration) , 2  FC  592;  Canada (Attorney General)  v  [NAME_9] , 1995 CanLII 3558. Return to footnote 4 referrer Footnote 5 See for example,  MS   v   [NAME_1] Commission , 2022  [NAME_2]  933;  PM   v   [NAME_1] Commission , 2022  [NAME_2]  931. Return to footnote 5 referrer Footnote 6 Listen to the audio recording of the General Division hearing at time stamp 00:46:50 – 00:48:44. Return to footnote 6 referrer Footnote 7 See para 21 of the General Division decision. Return to footnote 7 referrer Footnote 8 See para 48 and 49 of the General Division decision. Return to footnote 8 referrer Footnote 9 See para 56 of the General Division decision. The “[NAME_6] test” is the test of availability. It was expressed in a Federal Court of Appeal decision, [NAME_6]  v  [NAME_1] and Immigration Commission , A-56-96 and A-57-96. Return to footnote 9 referrer Footnote 10 See GD3-16. Return to footnote 10 referrer Footnote 11 See, for example: [NAME_10]  v  Canada (Attorney General) , 2017  FC  439, [NAME_11]  v  Canada (Attorney General) , 2017  FC  354, [NAME_12]  v  Canada (Attorney General) , 2016  FC  1254, [NAME_13]  v  Canada (Attorney General) , 2016  FC  1367. Return to footnote 11 referrer Footnote 12 See section 59(1) of the  DESDA . Return to footnote 12 referrer Footnote 13 See AD5-3. Return to footnote 13 referrer Footnote 14 See section 29(c) and section 30(1) of the [NAME_5] Act. Return to footnote 14 referrer Footnote 15 See sections 43 and 47 of the [NAME_5] Act. Return to footnote 15 referrer Footnote 16 See Digest of Benefit Entitlement Principles , Policy17.3.2.2. Return to footnote 16 referrer Footnote 17 See MS   v   [NAME_1] Commission , 2022  [NAME_2]  933. Return to footnote 17 referrer Footnote 18 See Digest of Benefit Entitlement Principles , policy 17.3.3. Return to footnote 18 referrer Footnote 19 See Section 59(1) of the  DESD  Act for the Appeal Division’s authority; also see MS   v   [NAME_1] Commission , 2022  [NAME_2]  933, LM  v  [NAME_1] Commission , 2023  [NAME_2]  139; [NAME_1] Commission  v  LM , 2024  [NAME_2]  1460. Return to footnote 19 referrer