Social Security Tribunal Allows Appeal Due to Important Error of Fact

OUTCOME: Allowed

[TRANSLATION] Citation: XR  v  Canada Employment Insurance Commission , 2026  [NAME]  261 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Representative: [COUNSEL], Legal Aid of Québec-Estrie-Thetford Respondent: [redacted] Representative: [COUNSEL] under appeal: General Division decision dated December 8, 2025 (GE-25-3138) Tribunal member: [NAME] of hearing: Videoconference Hearing date: March 26, 2026 Hearing participants: Appellant Appellant’s representative Respondent Respondent’s representative Decision date: March 27, 2026 File number: AD-25-820 On this page Decision Overview Issues Analysis The parties agree that the General Division based its decision on an important error of fact Remedy Conclusion Decision [ 1 ] The appeal is allowed. The General Division based its decision on an important error of fact. I gave the decision that should have been given. [ 2 ] The [APPELLANT] filed her notice of appeal to the General Division after the deadline. She gave a reasonable explanation for being late. I am giving her more time to file her notice of appeal. [ 3 ] The file returns to the General Division so that the Claimant’s appeal of the August 29, 2025, reconsideration decision can be heard. Overview [ 4 ] The Claimant applied for Employment Insurance ( EI ) regular benefits. Footnote 1 She started receiving benefits as of January 21, 2024. Footnote 2 On November 25, 2024, she called the Canada Employment Insurance Commission (Commission) to ask for sickness benefits instead of regular benefits. Footnote 3 She provided a medical certificate saying that she wasn’t able to work as of August 9, 2024. Footnote 4 [ 5 ] The Commission decided, based on the information provided, that the [APPELLANT] hadn’t been available for and capable of working since her benefit period started on January 14, 2024. Footnote 5 The Commission found that she didn’t provide information on 19 occasions. The [APPELLANT] wasn’t able to work for medical reasons as of August 2024. The Commission told her that her benefits would be changed to sickness benefits as of August 1, 2024. The Commission issued a notice of debt for $11,142. Footnote 6 [ 6 ] The [APPELLANT] asked the Commission to reconsider its decision. Footnote 7 She said that she wasn’t able to work as of January 2025, not January 2024. She was capable of working from January 2024 through August 9, 2024. [ 7 ] The Commission upheld its decision on August 29, 2025. Footnote 8 [ 8 ] The [APPELLANT] appealed the decision to the General Division on November 17, 2025. Footnote 9 It appeared that she appealed late. She said in her notice of appeal that she was late because she had anxiety. She also said that she could not send the notice of appeal on time because [NAME] was on strike. Footnote 10 [ 9 ] The General Division didn’t give more time to appeal. Footnote 11 It found that the Claimant hadn’t given a reasonable explanation for being late. [ 10 ] The Claimant is appealing this decision. Issues [ 11 ] I will decide the following issues: Did the General Division base its decision on an important error of fact when it found that the Commission had emailed its reconsideration decision? If so, how should I fix the error? Analysis [ 12 ] I can intervene if the General Division made one of the following errors: It breached the principles of procedural fairness. It made an error of jurisdiction. In other words, it didn’t decide an issue that it had to decide, or it decided an issue it didn’t have the right to decide. It made an error of law. It made an important error of fact. Footnote 12 The parties agree that the General Division based its decision on an important error of fact [ 13 ] The General Division bases its decision on an important error of fact when it makes a finding of fact that the evidence doesn’t support or that the evidence directly contradicts. Footnote 13 [ 14 ] In its decision, the General Division wrote that the Commission emailed the reconsideration decision on August 29, 2025. Footnote 14 The General Division didn’t refer to any evidence to support this finding. [ 15 ] In its written arguments to the Appeal Division, the Commission acknowledged that the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. Footnote 15 The Commission said that the General Division made an error when it found that the Claimant received the August 29, 2025, reconsideration decision by email. It said that the email on file asked her to contact the Commission. Footnote 16 But no decision was communicated through this email. [ 16 ] At the Appeal Division hearing, the Claimant’s lawyer said that she agreed the General Division had made this error. [ 17 ] I find that the General Division did, in fact, base its decision on an important error of fact. It made a finding of fact, even though the evidence on file didn’t allow it to make that finding. [ 18 ] The evidence on file doesn’t show that the Claimant was emailed the reconsideration decision. Rather, it shows the opposite. In fact, the notice of decision dated August 29, 2025, is addressed to her mailing address. Footnote 17 The notice of decision doesn’t say that it was emailed. [ 19 ] There is no evidence on file that the Commission informed the [APPELLANT] of the decision verbally either. Service Canada’s notes show that the attempts made to contact her weren’t successful. The notes say that Service Canada called her on August 11 and 25, 2025, but she didn’t answer the calls. Footnote 18 The notes also say that her voice mailbox was full. The Commission wasn’t able to leave a voice message. These calls were made before the reconsideration decision was given. [ 20 ] As a result, I find that the General Division made a finding of fact that the evidence didn’t support. So, I can intervene to fix the error. Remedy [ 21 ] Since I found that the General Division made an error that the Act allows me to fix, I have to decide how I will fix that error. [ 22 ] The [APPELLANT] lawyer is asking that I return the file for reconsideration. She said that this would allow her to explain why she was late in more detail. [ 23 ] The Commission also wants me to return the file to the General Division for reconsideration. Footnote 19 It says that the record is incomplete. The Commission says that a referral back to the General Division would allow the [APPELLANT] to explain when she received the decision and, if so, why she was late. Procedural fairness was followed and the record is complete [ 24 ] In my view, the General Division followed procedural fairness. The [APPELLANT] had already given reasons for being late in her notice of appeal. The General Division still gave her another opportunity to explain why she was late. It sent her a letter on November 25, 2025, asking her to explain why she was late. Footnote 20 This letter was emailed. When the Tribunal emails a document, the document is considered received on the next business day. Footnote 21 So, I can find that she received the email asking for explanations on November 26, 2025. She didn’t respond to give additional explanations for why she was late. [ 25 ] So, the Claimant had the opportunity to submit the evidence she wanted before the General Division regarding the issue of her delay. [ 26 ] In addition, the record is complete. The Claimant already said in her notice of appeal that she didn’t remember when she received the reconsideration decision. Footnote 22 A referral to the General Division isn’t an opportunity to supplement her evidence. So, there is no reason to return the file to the General Division. [ 27 ] The Act allows me to give the decision that the General Division should have given. Footnote 23 So, I will decide whether the notice of appeal was late and, if so, whether the [APPELLANT] gave a reasonable explanation for being late. I am giving the Claimant more time to file the notice of appeal The notice of appeal was late [ 28 ] The Act says that the [APPELLANT] had to appeal to the General Division within 30 days after the day the decision was communicated to her. Footnote 24 [ 29 ] The reconsideration decision was given on August 29, 2025, as shown on the notice of decision. Footnote 25 The [APPELLANT] doesn’t remember when the decision was communicated to her. Footnote 26 [ 30 ] The decision was mailed. When the Tribunal sends a document to a party by regular mail, the document is considered received 10 days after the day it was sent. Footnote 27 So, if the Commission sent the decision on August 29, 2025, I find that the decision was received 10 days after it was sent, that is, on September 8, 2025. [ 31 ] So, the [APPELLANT] had to file her notice of appeal no later than 30 days after September 8, 2025. She should have appealed by October 8, 2025, at the latest. [ 32 ] The Claimant’s appeal was late. A document is considered filed on the date the Tribunal receives it. Footnote 28 On each document, the Tribunal indicates the date it received the document. The General Division received the Claimant’s notice of appeal on November 17, 2025, based on the stamp appearing on the document. Footnote 29 The [APPELLANT] has a reasonable explanation for being late [ 33 ] The [APPELLANT] appeal is less than a year late. Footnote 30 So, I can give more time if she has a reasonable explanation for being late. Footnote 31 [ 34 ] In her notice of appeal, the [APPELLANT] explained why she was late. She said that she had been very anxious about the process. It should be noted that she was asked to pay back a significant amount of money. She also said that she lost her father in January 2025, and that it was very painful for her. When she wanted to mail her notice of appeal, [NAME] was on strike. [ 35 ] I note that the General Division seems to have taken judicial notice that [NAME] went on strike at the end of 2025. A court might take judicial notice of facts that are notorious and not subject of debate. The General Division included a link to the [NAME]’s website in the evidence on file. Footnote 32 The website says that on September 25, 2025, a nationwide strike was called. [NAME] said that this strike would cause delays in service. On October 11, 2025, the [NAME] union started rotating strikes. The website said that this would also cause delays, and that, as of November 21, 2025, strike activities were suspended. [ 36 ] I asked the parties at the Appeal Division hearing if they thought the [APPELLANT] had given a reasonable explanation. Her lawyer argued that her explanations were reasonable. The Commission finds that the [APPELLANT] didn’t give a reasonable explanation for being late. Footnote 33 [ 37 ] I find that the [APPELLANT] gave a reasonable explanation for being late. [NAME] was on strike as of September 25, 2025. This was before the deadline to file the notice of appeal. The strike ended after she sent her notice of appeal to the General Division. This means that there was a [NAME] strike throughout the entire period of the delay. So, the [NAME] strike reasonably explains the delay of just over a month. As a result, I am giving the [APPELLANT] more time to file her notice of appeal. Conclusion [ 38 ] The appeal is allowed. The General Division based its decision on an important error of fact. I gave the decision that should have been given. [ 39 ] The Claimant filed her notice of appeal to the General Division after the deadline. She gave a reasonable explanation for being late. I am giving her more time to file her notice of appeal. [ 40 ] The file returns to the General Division so that the Claimant’s appeal of the August 29, 2025, reconsideration decision can be heard. Footnotes Footnote 1 See the application for benefits at GD3-5. Return to footnote 1 referrer Footnote 2 See the table of benefits paid at GD3-33. Return to footnote 2 referrer Footnote 3 See the notes of a telephone conversation at GD3-24. Return to footnote 3 referrer Footnote 4 See the medical certificate at GD3-37. Return to footnote 4 referrer Footnote 5 See the notice of decision at GD3-28. Return to footnote 5 referrer Footnote 6 See the notice of debt at GD3-30. Return to footnote 6 referrer Footnote 7 See the reconsideration request at GD3-35. Return to footnote 7 referrer Footnote 8 See the notice of decision at GD3-42. Return to footnote 8 referrer Footnote 9 See the notice of decision at GD2-1. Return to footnote 9 referrer Footnote 10 See the notice of decision at GD2-5. Return to footnote 10 referrer Footnote 11 See para 25 of the General Division decision at AD1A-6. Return to footnote 11 referrer Footnote 12 See section 58(1) of the Department of Employment and Social Development Act  ( DESD  Act). Return to footnote 12 referrer Footnote 13 See the Federal Court of Appeal decision in [NAME]  v  Canada (Attorney General) , 2018  FCA  118 at para 6. Return to footnote 13 referrer Footnote 14 See para 10 of the General Division decision at AD1A-3. Return to footnote 14 referrer Footnote 15 See the Commission’s arguments at AD3-4. Return to footnote 15 referrer Footnote 16 See the email dated August 11, 2025, at GD3-41. Return to footnote 16 referrer Footnote 17 See the notice of decision at GD3-42. Return to footnote 17 referrer Footnote 18 See Service Canada’s notes at GD3-40. Return to footnote 18 referrer Footnote 19 See the Commission’s arguments at AD3-5. Return to footnote 19 referrer Footnote 20 See the letter dated November 25, 2025, at GD5-1. The General Division asked the [APPELLANT] for information about her delay in appealing. Return to footnote 20 referrer Footnote 21 See section 22(3) of the Social Security Tribunal Rules of Procedure (Rules). Return to footnote 21 referrer Footnote 22 See the notice of appeal at GD2-3. Return to footnote 22 referrer Footnote 23 See section 59(1) of the DESD  Act. Return to footnote 23 referrer Footnote 24 See section 52(1)(a) of the DESD  Act. Return to footnote 24 referrer Footnote 25 See the notice of decision at GD3-42. Return to footnote 25 referrer Footnote 26 See the notice of appeal at GD2-3. The Claimant checked the box that said the following: [translation] “I don’t remember when I received the reconsideration decision.” Return to footnote 26 referrer Footnote 27 See section 22(1) of the Rules. Return to footnote 27 referrer Footnote 28 See section 19(2) of the Rules. Return to footnote 28 referrer Footnote 29 See the notice of appeal at GD2. Return to footnote 29 referrer Footnote 30 See section 52(2) of the DESD  Act. Return to footnote 30 referrer Footnote 31 See section 27(2) of the Rules. Return to footnote 31 referrer Footnote 32 See the General Division decision at AD1A-4. The General Division referred to the following website: https://www.canadapost-postescanada.ca/cpc/en/our-company/news-and-media/corporate-news/negotiations-list.page. Return to footnote 32 referrer Footnote 33 See section 27(2) of the Rules. I can decide whether the Claimant had a reasonable explanation without asking the Commission for arguments. Return to footnote 33 referrer