Commission’s Appeal Allowed: Limitation Period Set at January 21, 2019

OUTCOME: Allowed

[TRANSLATION] Citation: [NAME] Commission  v  MB , 2026  SST  322 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Representative: [NAME] Respondent: [redacted] General Division decision dated December 30, 2025 (GE-25-2974) Tribunal member: [NAME] of hearing: Videoconference Hearing date: April 16, 2026 Hearing participants: [COUNSEL] representative Respondent Decision date: April 30, 2026 File number: AD-26-82 On this page Decision Overview Issue Preliminary remarks Analysis Remedy Conclusion Decision [ 1 ] The appeal is allowed. [ 2 ] The limitation period for the reconsideration decisions given on January 21, 2025, under section 52(5) of the Employment Insurance Act  ( EI  Act) is set at January 21, 2019. Overview [ 3 ] The Respondent ([APPELLANT]) stopped working because of a shortage of work. He then applied for regular benefits on the following days: December 24, 2018; December 23, 2019; January 14, 2021; December 27, 2021; and January 3, 2023. The Appellant (Commission) established a benefit period for each of these claims. [ 4 ] When he applied for benefits on January 3, 2023, the [APPELLANT] said that he was related to the owner of the business he worked for. He didn’t say this when he made his earlier claim for benefits on December 27, 2021. After receiving this information, the Commission started an investigation and reconsidered his five benefit periods. [ 5 ] On January 21, 2025, the Commission told the Claimant that he wasn’t entitled to benefits for all five periods. Footnote 1 The Commission told him that it was cancelling the five benefit periods that it had previously established. It imposed on him a monetary penalty and a notice of violation. On reconsideration, the Commission upheld the cancellation of the five benefit periods, replaced the monetary penalty with a warning letter, and cancelled the notice of violation. [ 6 ] The [APPELLANT] disagreed with the Commission’s reconsideration decision, and he appealed to the Tribunal’s General Division. [ 7 ] The General Division found that the [APPELLANT] used, at all times, a cell phone that his employer had provided, including during periods when there was a shortage of work. He also used a vehicle that the employer had provided. [ 8 ] The General Division found that these benefits were considered to be earnings under the Employment Insurance Regulations  ( EI  Regulations). It found that, since there had been no interruption of earnings for seven consecutive days, the benefit periods had to be cancelled. The exceptions were the benefit period of December 23, 2018, and the 2019 claim before January 21, 2020, because the time to reconsider had passed. The General Division also waived the penalty that the Commission had imposed. [ 9 ] The Commission was given permission to appeal the Tribunal’s General Division decision to the Appeal Division. It argues that the General Division made an error of law when it found that the Commission could not reconsider the 2019 claim before January 21, 2020. This was because the time to reconsider had passed. [ 10 ] I am allowing the Commission’s appeal. Issue [ 11 ] Did the General Division make an error of law when it found that the limitation period had to be set at January 21, 2020? Preliminary remarks [ 12 ] The [APPELLANT] applied for permission to appeal in AD-26-40. I refused to give him permission to appeal because he didn’t raise any grounds of appeal that had a reasonable chance of success. The Commission then applied for permission to appeal on a specific point of law, and I gave it. [ 13 ] I considered the additional arguments that the Claimant made in the Commission’s appeal file now before me. But the arguments didn’t convince me to rescind the General Division decision. Analysis No interruption of earnings for seven consecutive days [ 14 ] The [APPELLANT] argues that what he answered the [NAME] might have been wrong or embellished by his pride. He was proud to have taken over his father’s business after working hard to get there. He argues that the business always closes during the holidays, and that there was clearly a work stoppage. He always reported the hours he worked. He says that he doesn’t understand how the Commission can cancel his claims for benefits. He points out that the claimant report form didn’t ask whether he received benefits from the employer. Footnote 2 [ 15 ] The General Division found that the [APPELLANT] used, year-round, the cell phone that the employer had provided, even when the business was closed. At the General Division hearing, he admitted that he was using it for both work and personal reasons. Footnote 3 [ 16 ] The evidence before the General Division shows that using the cell phone is connected to or related to the work the [APPELLANT] did. At the very least, there is a clear link between his job and the benefit he received. [ 17 ] The Appeal Division established that using a cell phone, even if the amount is small, still represents a cost. For earnings to have stopped, the Claimant has to not receive benefits that have a daily value for him. Footnote 4 [ 18 ] In an initial interview that the Commission held, the [APPELLANT] also said that he used the company vehicle every day, even on weekends. He used it for personal reasons. Footnote 5 [ 19 ] The [APPELLANT] mother confirmed his statements in a separate interview with the Commission. She said that he was still using the company vehicle even while the business was closed. Footnote 6 [ 20 ] Given this evidence, the General Division had to find that the Claimant using the company truck and cell phone prevented an interruption of earnings. This is set out in the EI  Regulations. Footnote 7 [ 21 ] Since there was no interruption of earnings for seven consecutive days, the benefit periods had to be cancelled. Footnote 8 The 72-month time frame to reconsider [ 22 ] As the General Division noted, to use the 72-month time frame to reconsider, the Commission doesn’t have the burden of proving that the [APPELLANT] “knowingly” made false statements to go ahead with the reconsideration. Rather, that burden lies with the Commission when it imposes a penalty. [ 23 ] The Commission can reconsider a claim for benefits within 72 months if, “in its opinion,” a false or misleading statement has been made in connection with a claim. Footnote 9 [ 24 ] The Commission started an investigation after the [APPELLANT] said that he was related to his employer when he applied for benefits on January 3, 2023. He didn’t say this when he made his earlier claim for benefits. [ 25 ] While investigating, the Commission was told that the employer had provided the [APPELLANT] with a vehicle, a cell phone, and a credit card, even during periods when he wasn’t working. These were benefits that had monetary value for him. The [APPELLANT] also said that he sometimes performed certain tasks without receiving any earnings during his layoff periods. These included answering phone calls and emails. Footnote 10 [ 26 ] The General Division decided that the Commission could reasonably find, in the circumstances, that a false or misleading statement had been made for it to use the 72-month time frame. This was because the [APPELLANT] didn’t report the financial benefits he had, particularly using a cell phone that his employer had provided year-round. Footnote 11 [ 27 ] The General Division found that the Commission had 72 months to reconsider the [APPELLANT] claims for benefits. [ 28 ] I see no reason to intervene on this point. This is because the General Division’s finding is based on the evidence on file, and it is consistent with the law. Calculating the 72-month time frame [ 29 ] I now have to decide whether the General Division made an error of law when it applied a limitation period of 60 months, rather than the 72 months set out in section 52(5) of the EI  Act. [ 30 ] Since the Commission told the Claimant about its decisions on January 21, 2025, it argues that the limitation period has to be set at January 21, 2019, and not January 21, 2020. [ 31 ] After finding that the Commission could go back 72 months from January 21, 2025, the General Division decided that the Commission could not reconsider the benefit periods before January 21, 2020. Footnote 12 [ 32 ] So, according to the General Division, the Commission wasn’t justified in reconsidering the benefit period starting on December 23, 2018, because the time to reconsider had passed. The benefit period starting on December 22, 2019, was to be reconsidered only as of January 21, 2020. [ 33 ] I see no explanation in the General Division decision as to why the time frame was shortened to 60 months. The only logical explanation seems to be that the General Division made a calculation error. Footnote 13 [ 34 ] I am of the view that the General Division made an error of law when it set the limitation period for the reconsideration decisions given on January 21, 2025, to January 21, 2020. [ 35 ] Given this error, I am justified in intervening. Remedy [ 36 ] Since the parties had the opportunity to present their respective positions before the General Division, I am of the view that the record is complete. So, I will give the decision that the General Division should have given. Footnote 14 [ 37 ] The limitation period for the reconsideration decisions given on January 21, 2025, under section 52(5) of the EI  Act, is set at January 21, 2019. Conclusion [ 38 ] The Commission’s appeal is allowed. [ 39 ] The limitation period for the reconsideration decisions given on January 21, 2025, under section 52(5) of the EI  Act, is set at January 21, 2019. Footnotes Footnote 1 Notices of debt were mailed to the Claimant on January 11, 18, and 25, 2025, including monetary penalties. But the monetary penalties were later replaced by warning letters. Return to footnote 1 referrer Footnote 2 See the Claimant’s additional arguments at AD-4. Return to footnote 2 referrer Footnote 3 See para 40 of the General Division decision at GD3-471. Return to footnote 3 referrer Footnote 4 See other decisions on the same subject: [NAME]  v  [NAME] Commission , 2019  SST  577; [NAME]  v  [NAME] Commission , 2019  SST  576; [NAME]  v  [NAME] Commission , 2017 CanLII 31736 ( SST ); [NAME]  v  [NAME] Commission , 2016 CanLII 59202 ( SST ); [NAME]  v  [NAME] Commission , 2017 CanLII 31773 ( SST ); [NAME]  v  [NAME] Commission , 2018  SST  753 (CanLII); and [NAME]  v  [NAME] Commission , 2018  SST  754 (CanLII). Return to footnote 4 referrer Footnote 5 See GD3-471. Return to footnote 5 referrer Footnote 6 See GD3-396. Return to footnote 6 referrer Footnote 7 Section 35(10)(d) of the Employment Insurance Regulations says that the following constitutes earnings:  the value of board, living quarters and other benefits received by a claimant from or on behalf of the claimant’s employer in respect of the claimant’s employment. Return to footnote 7 referrer Footnote 8 See section 7 of the Employment Insurance Act  ( EI  Act). Return to footnote 8 referrer Footnote 9 See Federal Court of Appeal decisions in [NAME] (A-140-01), [NAME] (A-172-01), and [NAME] (A-646-02). Return to footnote 9 referrer Footnote 10 It has been decided that the work a claimant did voluntarily for their employer after being laid off doesn’t result in an interruption of earnings under the EI Act. See CUB 18989, CUB 14230A, CUB 13130, and CUB 11215. Return to footnote 10 referrer Footnote 11 The claimant report asks whether the Claimant received earnings or performed work he won’t be paid for. Return to footnote 11 referrer Footnote 12 See, for example, paras 29 and 42 of the General Division decision. Return to footnote 12 referrer Footnote 13 The Commission filed a motion for a corrigendum with the General Division, but it appears to have been refused. This is because the Claimant had applied for permission to appeal to the Tribunal’s Appeal Division. Return to footnote 13 referrer Footnote 14 See section 59(1) of the Department of Employment and Social Development Act . Return to footnote 14 referrer