Late Reconsideration Request Sent Back to Board of Appeal Due to Legal Error

Citation: EH   v   Canada Employment Insurance Commission , 2026 SST 344 Social Security Tribunal of Canada Appeal Division Decision Appellants: [redacted] Respondent: [redacted] Representative: [NAME] Decision under appeal: General Division March 25, 2026 (GE-26-517) Tribunal member: [NAME] of hearing: Teleconference Hearing date: May 15, 2026 Hearing participants: Appellant Respondent’s representative Decision date: June 22, 2026 File number: AD-26-273 On this page Decision Overview Issues Analysis Conclusion Decision [ 1 ] The appeal is allowed. The General Division made an error of law. The matter will go to the Board of Appeal for reconsideration. Overview [ 2 ] E. H. is the Appellant. I will call him the Claimant because this appeal concerns his claim for Employment Insurance ( EI ) benefits. [ 3 ] This case is about the reconsideration of a decision the Commission made in October 2022, that Claimant could not be paid EI benefits because he voluntarily left his employment without just cause. A written decision was sent to the Claimant at the time that the decision was made, but it was returned as “undeliverable.” Footnote 1 [ 4 ] The decision was communicated to the Claimant on February 10, 2025. [ 5 ] The Claimant asked the Commission to reconsider its decision on November 4, 2025. The Commission refused to extend the 30-day deadline to have a decision reconsidered. [ 6 ] The Claimant appealed the refusal to the General Division. [ 7 ] The General Division decided two issues. First, it was decided the Claimant made his reconsideration request 236 days late. Second, it decided the Commission exercised its power properly when it refused to extend the time. Footnote 2 The General Division concluded that it could not interfere with the Commission’s decision. So, it dismissed the Claimant’s appeal. [ 8 ] The Claimant was given permission to appeal. The Claimant says that the General Division made an error of fact, an error of law and breached procedural fairness. He argues that the General Division failed to properly assess whether the Commission’s decision was adequately communicated to him and whether it was fair to strictly apply the 30-day deadline in the circumstances of his case. [ 9 ] I am allowing the appeal. For the reasons below, I find that the General Division made an error of law. I am sending the matter to the Board of Appeal for reconsideration. Issues [ 10 ] The issues in this appeal are: a)   Did the General Division make an error of law by failing to consider binding case law when it determined the Commission exercised its power properly when the Commission refused to extend the time for the Claimant to file for reconsideration? b)   Did the General Division make an error of fact when it found that the Claimant was aware that he could ask the Commission to reconsider its decision at the Commission communicated its decision to the Claimant? c)   Did the General Division make an error of law by failing to provide adequate reasons? d)   Was the General Division’s hearing process not fair in some way? e)   If any of the above errors happened, how should the error be fixed? Analysis [ 11 ] 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 3 [ 12 ] The Appeal Division’s role is different than the General Division’s role. The law allows me to step in and fix a General Division decision where a claimant shows that the General Division made any of the above errors. The General Division made an error of law [ 13 ] The General Division makes a legal error when it doesn’t use the correct legal test, or it doesn’t follow a court decision it has to follow. [ 14 ] The law says that a person has 30 days to ask the Commission to reconsider its decision. If a person makes their request after the 30-day limit, the request is late. But the Commission can extend the time for them to file their request. Footnote 4 When it decides whether to extend the time, the Commission has to follow the Regulations. [ 15 ] The Commission’s power to extend the time is discretionary. In other words, the Commission gets to decide whether to extend the time. But the Commission must act judicially when it makes that decision. To act judicially, a decision maker must not act in bad faith, act for an improper purpose or motive; consider an irrelevant factor; ignore a relevant factor; or act in a discriminatory way. Footnote 5 [ 16 ] If the General Division decides that the Commission exercised its power judicially, it cannot interfere with or change the Commission’s decision. If the General Division decides that the Commission didn’t act judicially when it made the decision, the General Division can exercise its discretion to grant an extension of time. [ 17 ] I have listened to the General Division hearing and reviewed the appeal record. [ 18 ] The General Division found that the Commission’s decision was communicated to the Claimant on February 10, 2025, and that the Claimant’s request for reconsideration was 236 days late. Footnote 6 The General Division also found that the Commission exercised its discretion properly when it refused to grant the Claimant more time to ask for reconsideration. Footnote 7 [ 19 ] The test for granting an extension of time is set out in the Regulations. Because the Claimant’s reconsideration was less than 365 days late, the Claimant had to show: a)   That they had a reasonable explanation for requesting an extension; and b)   they had a continuing intention to request a reconsideration. Footnote 8 [ 20 ] In his request for reconsideration on November 4, 2025, the Claimant provides the following reason for the late request: “The decision was communicated to me in 2025. I am eligible for all benefits owed.” Footnote 9 [ 21 ] The Commission tried to contact the Claimant to ask him about the reason for requesting an extension, but it was unable to reach him.  So, because it had no explanation for why he wanted an extension, the Commission decided that the Claimant did not provide a reasonable explanation for the delay. Footnote 10 The General Division made a legal error when it didn’t follow the [NAME] decision [ 22 ] One of the factors that the General Division was required to look at when determining whether the Commission acted properly was whether the Commission considered all relevant factors. [ 23 ] At the General Division, the Claimant testified about the reasons for the delay. Footnote 11 He said that he found out about the Commission’s decision during a call to the Commission on February 10, 2025. During that call, the Commission agent didn’t tell him about the 30-day deadline to request a reconsideration. In March 2025, he made an access to information request for his ESDC file. He got his file in April 2026, then took time to review it. Once he was finished his review, he filed his reconsideration request on November 4, 2025. [ 24 ] The Claimant’s evidence at the General Division was relevant to explain the reason for the late request. But this information was not before the Commission. [ 25 ] While the General Division cites the Claimant’s testimony about the reasons for his delay Footnote 12 , it doesn’t appear that the General Division considered it. I say this because there is no analysis with respect to the Claimant’s testimony to the legal test. In determining that the Commission exercised its discretion properly, the General Division appears to have only considered the information known to the Commission at the time the Commission denied the late reconsideration request. [ 26 ] However, the General Division is not limited to the facts before the Commission. In Canada (Attorney General) v Dunham , (1996) A-708-95 ( FCA ), the Federal Court of Appeal provides direction on this issue. [NAME] directs that, in assessing the way the Commission exercised its discretion, the General Division may have regard to facts that come to its own attention. Footnote 13 [ 27 ] [NAME] is binding on the General Division. This means that the General Division had to follow what it says. [ 28 ] In my view, the General Division did not follow [NAME] in assessing whether the Commission exercised its discretion properly. The General Division did not have regard to information that came to its attention at the hearing - the Claimant’s testimony about the reasons for his late reconsideration. [ 29 ] The failure to follow binding case law is a legal error. Since I have found that the General Division committed an error of law, I do not need to address the other errors alleged by the Claimant. Fixing the error [ 30 ] I have the power to send the matter to the Board of Appeal for reconsideration. I also have the power to make the decision that the General Division should have made. Footnote 14 However, I can only make the decision that the General Division should have made if the record is complete. [ 31 ] In this case, I cannot be certain that the record is complete. At the General Division, the Claimant said that he received his ESDC file in April 2025. When asked why it took him until November 2025 to file his request for reconsideration, the Claimant said that he reviewed the file in depth and then began the appeal process. Footnote 15 No further details were provided, and the General Division did not explore the issue further. [ 32 ] It may be that there is more evidence the Claimant may have to say on the issue. The Appeal Division cannot accept new evidence. There are many questions left unanswered. For example, what steps the Claimant took to inform himself of his obligations once he was informed of the decision? When did the Claimant finish his review of his file after receiving it in April 2025? What steps the Claimant took to file for reconsideration after his review? The Claimant may have more evidence to give explaining his delay. [ 33 ] The General Division member didn't explore the issues that they should have explored based on [NAME] . Given the vulnerability and lack of information on the part of the people involved in EI claims, in terms of knowing what facts may be relevant, I cannot be certain that the record is complete. [ 34 ] Therefore, I have decided to send the matter to the Board of Appeal for reconsideration. This will give the Claimant an opportunity to address each element of the extension of time test set out in the Regulations. Conclusion [ 35 ] The appeal is allowed. The General Division made errors of law. I am sending the matter to the Board of Appeal. Footnotes Footnote 1 GD3-24 and GD3-25 Return to footnote 1 referrer Footnote 2 I am using “properly” as plain language for the legal word “judicially.” The General Division explains what it means for the Commission to use its decision-making power judicially, at paragraph 33 of its decision. Return to footnote 2 referrer Footnote 3 This is a plain language version of the grounds of appeal. The full text is in section 58(1) of the Department of Employment and Social Development Act (DESDA). Return to footnote 3 referrer Footnote 4 See section 112(1)(b) and 112(3) of the Employment Insurance Act and section 1 of the Reconsideration Request Regulations (Regulations) Return to footnote 4 referrer Footnote 5 See Canada (Attorney General) v Purcell , 1995 CanLII 3558 ( FCA ) Return to footnote 5 referrer Footnote 6 GD Decision at paras 29 and 30 Return to footnote 6 referrer Footnote 7 GD Decision at para 31 Return to footnote 7 referrer Footnote 8 See section 1(1) of the Reconsideration Request Regulations. In certain circumstances, under s. 1(2), claimants also must show that their request has a reasonable chance of success and that no prejudice would be caused to the Commission or a party by allowing an extension.  There is no dispute that s. 1(2) does not apply to the Claimant. Return to footnote 8 referrer Footnote 9 GD3-36 Return to footnote 9 referrer Footnote 10 GD3-44 Return to footnote 10 referrer Footnote 11 Listen to the General Division hearing recording at 8:25, 28:24, 29:25, and 30:45. Return to footnote 11 referrer Footnote 12 GD Decision at paras 39 and 40 Return to footnote 12 referrer Footnote 13 See Canada (Attorney General) v Dunham , (1996) A-708-95 ( FCA ): “Given that the Commission is exercising a purely administrative and not a quasi-judiciaI power; given the nature of the proceedings before the board of referees, the fact that it must hold a hearing ( de novo ) and the central role assigned to its decision; given the limits on the options and methods of verification open to the Commission’s officers, in view of the number and diversity of individual cases; and given the vulnerability and lack of information on the part of the people involved in terms of knowing what facts may be relevant, I have no hesitation in believing that we would not be betraying the intention of Parliament if we said that the board of referees is not limited to the facts that were before the Commission. In assessing the manner in which the discretion was exercised, it may have regard to facts that come to its own attention.” [Emphasis added.] Return to footnote 13 referrer Footnote 14 See sections 59(1) and 64 of DESDA. Return to footnote 14 referrer Footnote 15 General Division hearing recording at 31:07. Return to footnote 15 referrer