Employment Insurance Appeal Allowed Due to Jurisdiction Error

OUTCOME: Allowed

Citation: Canada Employment Insurance Commission  v  AB , 2026  [NAME]  313 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Representative: [COUNSEL] Respondent: [redacted] Representative: [COUNSEL]. A. Decision under appeal: [NAME] 16, 2026 (GE-25-3438) Tribunal member: [NAME] of hearing: Videoconference Hearing date: April 16, 2026 Hearing participants: Appellant’s representative Respondent Respondent’s representative Decision date: CORRIGENDUM DATE: April 27, 2026 April 29, 2026 File number: AD-26-83 On this page Decision Overview Preliminary matters The parties agree on the outcome of the appeal Conclusion Decision [ 1 ] The appeal is allowed. The [NAME] made a jurisdictional error. It made a decision that it didn’t have the authority to make. I have given the decision the [NAME] should have given. [ 2 ] The Claimant didn’t lose her job due to her own misconduct and likewise didn’t voluntarily leave her job. The Claimant wasn’t available, and therefore not entitled to [NAME] ) benefits, from March 16, 2026 [2025] , to August 5, 2025. Overview [ 3 ] [APPELLANT]. [APPELLANT]. is the Claimant. She applied for [NAME] ) benefits on March 19, 2025. [ 4 ] The Claimant didn’t have a valid work permit as of October 27, 2024. She took steps after that to renew her permit. [ 5 ] The [APPELLANT] stopped working because her work permit expired. The Commission first decided the [APPELLANT] voluntarily left her job. The [APPELLANT] asked it to reconsider. The Commission then decided the [APPELLANT] lost her job due to her own misconduct. The Commission also decided that the [APPELLANT] was not available for work due to her expired work permit. [ 6 ] The [APPELLANT] then appealed to the Social Security Tribunal (Tribunal) [NAME]. The [NAME] partially allowed the appeal. It decided the [APPELLANT] didn’t lose her job due to her own misconduct and she didn’t voluntarily lose her job. [ 7 ] In one part of the [NAME]’s decision, it says the Commission didn’t show the [APPELLANT] was [wasn’t] available for work. In another part of the decision, it said the [APPELLANT] hasn’t shown she was available for work. The [NAME] said the [APPELLANT] wasn’t available from October 27, 2024 [January 14, 2025] , until August 5, 2025. [ 8 ] The Commission has appealed the [NAME]’s decision. It says the [NAME] made a few mistakes. Specifically, that it considered a period it didn’t have the authority to consider. [ 9 ] The parties agreed at the hearing the [NAME] made an error. I agree. The [NAME] didn’t have the authority to make a decision about whether the Claimant was available prior to March 16, 2025. Preliminary matters The [APPELLANT] other concerns [ 10 ] The parties agreed the [NAME] made a jurisdictional error when it considered a time that wasn’t before it. [ 11 ] But the Claimant’s Representative also expressed some confusion about why the [NAME] found the [APPELLANT] had a personal condition that prevented her from working. This was discussed at the Appeal Division hearing. The term personal condition sounds like it might mean that the [APPELLANT] herself imposed a condition to avoid returning to work. That isn’t what is meant by the third Faucher factor. Footnote 1 It is assessed objectively. It considers the existence of a personal condition and its effect on the likelihood of returning to work. [ 12 ] The Claimant didn’t have a valid work permit. This meant she couldn’t return to work legally in Canada. It was also discussed that all three Faucher factors must be met. So, if someone doesn’t meet one of these factors it means they’re considered to not be available under [NAME] law. [ 13 ] I understand the [COUNSEL], and her Representative, feel the law as it stands is unfair. But as discussed, the Tribunal must apply the law as it exists. The parties agree on the outcome of the appeal [ 14 ] The Claimant applied for [NAME] benefits on March 19, 2025. Footnote 2 A benefit period was established on March 16, 2025. Footnote 3 At some point, the Claimant realized that she wanted to have [NAME] benefits start earlier than when she applied. The Claimant requested an antedate after she was already into this current process. [ 15 ] The parties agreed the issue of whether the Claimant’s application could be antedated was not before the [NAME]. The [NAME] also said this during its hearing and noted that in its decision. Footnote 4 So, the [NAME] was restricted to this claim and the issues that were properly before it. Specifically, the [NAME] could only make a decision about whether the Claimant was dismissed for her own misconduct and if she was available for work from March 16, 2025 forward. [ 16 ] The [NAME] didn’t use the proper dates throughout its decision. Instead of referring to the benefit period commencing March 16, 2026 [2025] , it referred to dates in October 2025 [2024] and January 2026 [2025] . These periods weren’t before the [NAME]. I accept the proposed outcome [ 17 ] An error of jurisdiction means that the [NAME] didn’t decide an issue it had to decide or decided an issue it didn’t have the authority to decide. In this case, the Commission is saying the [NAME] decided something it didn’t have the authority to decide. [ 18 ] The [NAME] gets its authority to review decisions of the Commission from section 113 of the [NAME]. Section 113 of the [NAME] says: A party who is dissatisfied with a decision of the Commission made under section 112, including a decision about further time to make a request, may appeal the decision to the Social Security Tribunal established under section 44 of the Department of Employment and Social Development Act . [ 19 ] This section means there needs to be a decision of the Commission under section 112 of the [NAME]. Absent a decision by the Commission, the [NAME] can’t consider an appeal because it doesn’t have jurisdiction. [ 20 ] I agree that when the [NAME] referred to periods before March 16, 2025, it exceeded its jurisdiction. Remedy [ 21 ] Since I have found an error, there are two main ways I can remedy (fix) this. I can make the decision the [NAME] should have made. I can also send the case back to the [NAME] if there isn’t enough information to make a decision. Footnote 5 [ 22 ] The parties agreed the record is complete. They agree all necessary information was before the [NAME]. I will give the decision the [NAME] should have given. The Claimant didn’t lose her job due to misconduct or by voluntarily leaving her job [ 23 ] Neither party contests the [NAME]’s findings about misconduct. Footnote 6 I am adopting the [NAME]’s findings about misconduct. The [APPELLANT] didn’t lose her job due to misconduct. The [NAME] decided the [APPELLANT] lost her job due to a leave of absence. [ 24 ] As well, the [NAME] decided the [APPELLANT] didn’t take a voluntary leave of absence. I am adopting the [NAME]’s findings on this issue. Footnote 7 The [NAME] said the [APPELLANT] didn’t have a choice to stay or go, so the work separation wasn’t about a voluntary leave. The Claimant wasn’t available for work from March 16, 2025, to August 5, 2025 [ 25 ] The [NAME] explained two different sections of the Employment Insurance Act ( [NAME]) apply when looking at whether a claimant is considered to be available in the law. Footnote 8 I am adopting the [NAME]’s explanations. [ 26 ] First, the [NAME] looked at section 50(8) of the [NAME]. Footnote 9 The [NAME] decided the Commission didn’t do enough to explain to the [APPELLANT] what kind of proof would show reasonable and customary efforts to find a job. I am adopting the [NAME]’s finding on this issue. [ 27 ] Next, the [NAME] looked at section 18(1)(a) of the [NAME]. Footnote 10 That section, along with case law, explain that a claimant has to show for each working day that they are capable of and available for work and unable to find suitable employment. [ 28 ] The [NAME] thoroughly goes through the test as laid out in the Federal Court of Appeal of Faucher . Footnote 11 I am adopting the [NAME]’s findings on this test. The parties aren’t contesting the [NAME]’s analysis. The Claimant wanted to return to the work force. She didn’t make enough efforts to find a suitable job. The Claimant also had a personal condition that prevented her from being able to work. Specifically, the Claimant didn’t have a valid work permit. [ 29 ] With respect to the period of time that the Claimant wasn’t available, I am given the decision the [NAME] should have given. The Claimant wasn’t available from March 16, 2025 to August 5, 2025. Conclusion [ 30 ] The appeal is allowed. The [NAME] made a jurisdictional error. It made a decision that it didn’t have the authority to make. I have given the decision the [NAME] should have given. [ 31 ] The [APPELLANT] didn’t lose her job due to her own misconduct and likewise didn’t voluntarily leave her job. The Claimant wasn’t available, and therefore not entitled to [NAME] ) benefits, from March 16, 2026 [2025] , to August 5, 2025. Footnotes Footnote 1 See  Canada ([NAME] [NAME])  v  [NAME] , 2010  FCA  60 at paragraph 5. See also Canada ([NAME] [NAME])  v  [NAME] , 1982 CanLII 3003 ( FCA ) at paragraph 19. See also [NAME]  v  Canada ([NAME] [NAME]) , 2003  FCA  198 at paragraph 1. Return to footnote 1 referrer Footnote 2 See GD3B-9 of the Commission’s Reconsideration File. Return to footnote 2 referrer Footnote 3 See GD4B-1 of the Commission’s Representations to the [NAME]. Return to footnote 3 referrer Footnote 4 See the [NAME] decision at paragraphs 12 and 13. Return to footnote 4 referrer Footnote 5 Section 59(1) of the DESD Actallows me to fix the [NAME]’s errors in this way. Return to footnote 5 referrer Footnote 6 See the [NAME] decision at paragraphs 15 to 18. Return to footnote 6 referrer Footnote 7 See the [NAME] decision at paragraphs 19 to 21. Return to footnote 7 referrer Footnote 8 See the [NAME] decision at paragraphs 22 to 26. Return to footnote 8 referrer Footnote 9 See the [NAME] decision at paragraphs 27 to 30. Return to footnote 9 referrer Footnote 10 See the [NAME] decision at paragraphs 31 to 47. Return to footnote 10 referrer Footnote 11 There are three factors explained in [NAME]  v  Canada (Employment and Immigration Commission) , A-56-96 and A-57-96 ( FCA ). These cases provide judicial interpretation of the statutory requirements and help establish the criteria used in evaluating a claimant’s availability. Return to footnote 11 referrer