Commission Can Reconsider EI ERB Claim Within 72 Months

[TRANSLATION] Citation: [NAME]  v  Canada Employment Insurance Commission , 2026  SST  354 Social Security Tribunal of Canada Appeal Division Decision Appellant/Respondent: [redacted] Respondent/Appellant: [redacted] Representative: [NAME] Decision under appeal: General Division decision dated March 26, 2026 (GE-26-474) Tribunal member: [NAME] of hearing: In person Hearing date: June 16, 2026 Hearing participants: Appellant/Respondent Representative for the Respondent/Appellant Decision date: June 25, 2026 File numbers: AD-26-278, AD-26-334 On this page Decision Overview Issues Analysis Remedy Conclusion Decision [ 1 ] The Claimant’s appeal is dismissed (AD-26-278). [ 2 ] The Commission’s appeal is allowed (AD-26-334). The Commission could use the 72-month time limit set out in the law. It also used its discretion judicially when it reconsidered the Claimant’s Employment Insurance Emergency Response Benefit ( EI   ERB ) claim. Overview [ 3 ] The Claimant stopped working on March 15, 2020, because of the pandemic and the government-imposed closure of non-essential businesses. As a result, an EI   ERB claim was established effective March 17, 2020. [ 4 ] The Claimant got 23 weeks of the EI   ERB for the period from March 15, 2020, to October 3, 2020. He wasn’t paid for the weeks of September 6 and 13, 2020, since he reported full work weeks. [ 5 ] On July 21, 2023, the Commission told the Claimant that it had reconsidered his claim because it contained a false or misleading statement. It found that the Claimant wasn’t eligible for benefits from June 7, 2020, to August 29, 2020, since he had earnings of more than $1,000 over a period of four weeks. A $6,000 overpayment was created. [ 6 ] On reconsideration, the Commission changed its initial decision and determined that the Claimant wasn’t eligible for the EI   ERB from June 21, 2020, to August 29, 2020, and for the weeks of August 30, 2020, and September 20, 2020. The overpayment was increased to $6,500. [ 7 ] The Claimant disagreed and appealed to the Tribunal’s General Division. [ 8 ] The General Division found that the Claimant wasn’t eligible for the EI   ERB from June 21 to October 3, 2020. It found that the Commission hadn’t used its discretion judicially when it reconsidered the Claimant’s claim for benefits. The General Division found that the Commission could not reconsider after more than 36 months. This had the effect of writing off the overpayment for the period before July 26, 2020. [ 9 ] The Claimant appealed the General Division decision. The Commission then also appealed the decision. [ 10 ] The Claimant’s appeal is dismissed. The Commission’s appeal is allowed. Issues [ 11 ] Did the General Division make an error of law by requiring the Commission to show that the Claimant had, in fact, made a false statement so it could use the 72‑month time limit? [ 12 ] Did the General Division make an error in its analysis of the Commission’s use of its discretion? Analysis [ 13 ] Before the General Division, the Claimant disputed that the Commission had approved his claim and paid him benefits before asking him to pay them back, even though he had looked into the matter and taken the trouble to check the applicable standards. [ 14 ] Before me, the Claimant doesn’t dispute that he wasn’t eligible for the EI   ERB during the period in dispute. But he argues that the Commission could not take more than 36 months to reconsider his EI   ERB claim. [ 15 ] On July 21, 2023, the Commission told the Claimant that it had reconsidered his claim for benefits. It found that the Claimant had made a false or misleading statement by misstating his total earnings. [ 16 ] The Commission argues that the General Division made an error by not finding that it had 72 months to reconsider the Claimant’s claim for benefits. [ 17 ] It is well established that, to use the 72-month time limit set out in section 52(5) of the Employment Insurance Act ( EI  Act), the Commission doesn’t have to establish that the claimant in question had, in fact, made a false or misleading statement. Instead, it must show only that it could reasonably consider that a false or misleading statement had been made in connection with a claim for benefits. Footnote 1 [ 18 ] In my view, the General Division made an error of law by requiring the Commission to show that the Claimant had, in fact, made a false statement so it could use the 72-month time limit. [ 19 ] I am also of the view that the General Division made an error in its interpretation of the “Contrary to the structure of the act” test set out in the Commission’s reconsideration policy, after finding that the Claimant was eligible for the EI   ERB . As a result, the General Division’s analysis of the Commission’s discretion is unsupported. [ 20 ] Given these errors, I am justified in intervening. Remedy [ 21 ] The file before the General Division is complete. So, I can give the decision that the General Division should have given. The reconsideration period [ 22 ] The Claimant argues that, after he filed his claimant report, he realized his mistake and called the Commission to tell it. But there is no record of this call in the Commission’s file. No correction was made to the file, and the Claimant didn’t get any written confirmation about this from the Commission. [ 23 ] The evidence shows that the Claimant mistakenly put his hourly rate instead of his total earnings on two claimant reports (June 7 to June 20 and June 21 to July 4). [ 24 ] It is difficult for me to find that the Claimant promptly contacted the Commission after realizing his mistake, since he repeated the same mistake a second time. He says that he was told by an agent that there would be an overpayment. But he never followed up with the Commission about it during or after his EI   ERB period ended. [ 25 ] I also note that, during the Claimant’s reconsideration interviews, the Claimant didn’t tell the agent that he immediately contacted the Commission to tell it about the mistake in his total earnings and the overpayment. [ 26 ] For these reasons, I can’t give weight to the Claimant’s testimony that he promptly contacted the Commission to tell it about the mistake in his claimant report. [ 27 ] The Claimant reported total earnings of $17 and $18 in his June 7 to 20 and June 21 to July 4 claimant reports. The Record of Employment from the employer shows that there is a difference between the amounts provided by his employer and the claimant reports. [ 28 ] So, it was reasonable for the Commission to find that a false or misleading statement had been made so it could use the 72-month time limit set out in the law. The Commission’s use of discretion [ 29 ] Case law has established that the only limitation on the Commission’s power to reconsider under section 52 of the EI  Act is time. As a result, the Commission can reconsider a claim under section 52 even if there are no new facts. [ 30 ] But the decision to reconsider a claim under section 52 is discretionary. This means that, while the Commission has the power to reconsider a claim, it doesn’t have to do so. [ 31 ] The law says that discretionary powers must be used judicially. This means that, when the Commission decides to reconsider a claim, it can’t act in bad faith or for an improper purpose or motive, consider an irrelevant factor, ignore a relevant factor, or act in a discriminatory manner. [ 32 ] The Commission developed a policy to help it use its discretion to reconsider decisions under section 52 of the EI  Act. The policy says that a claim will only be reconsidered when: benefits have been underpaid benefits were paid contrary to the structure of the EI  Act benefits were paid as a result of a false or misleading statement the claimant should have known there was no entitlement to the benefits received [ 33 ] In my view, the Commission used its discretion judicially under section 52 of the EI  Act. [ 34 ] In this case, there is no doubt that benefits were paid to the Claimant contrary to the structure of the EI  Act. Since the Claimant didn’t meet the basic requirements to get the EI   ERB , the payment of the EI   ERB went against the EI  Act. [ 35 ] The Commission reconsidered the Claimant’s claim because there was a difference between the amounts provided by the employer and the claimant reports. This meant that the Claimant no longer met the basic requirements to get the EI   ERB . [ 36 ] I have to find that the Commission considered all relevant information when it reconsidered the Claimant’s claim. No new relevant facts were provided at the General Division hearing that the Claimant hadn’t already provided to the Commission. [ 37 ] The fact that the Claimant simply made an unfortunate mistake when completing his reports doesn’t change the fact that he got the EI   ERB contrary to the law. [ 38 ] There is no indication that the Commission considered any irrelevant information or acted in bad faith or in a discriminatory manner. It also acted with a legitimate purpose by reconsidering the Claimant’s eligibility for the EI   ERB . Conclusion [ 39 ] The Claimant’s appeal is dismissed. [ 40 ] The Commission’s appeal is allowed. The Commission could use the 72‑month time limit set out in the law. It also used its discretion judicially when it reconsidered the Claimant’s EI   ERB claim. [ 41 ] I want to point out that the Commission proposed, after my decision, and even though it isn’t required by law to do so, to look at and determine whether eligible weeks of the EI   ERB period could be used to offset the Claimant’s overpayment. Footnote 2 Footnotes Footnote 1 [NAME] (A-140-01); [NAME] (A-172-01); and [NAME] (A-646-02). Return to footnote 1 referrer Footnote 2 See GD4-7. Return to footnote 2 referrer