Social Security Tribunal Allows Appeal Due to Legal Error

Citation: AS  v  Canada Employment Insurance Commission , 2026  SST  187 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Respondent: [redacted] Representative: [NAME] Decision under appeal: General Division decision dated December 30, 2025 (GE-25-3374) Tribunal member: [NAME] Decision date: March 9, 2026 File number: AD-26-17 On this page Decision Background The parties agree on the outcome of the appeal I accept the parties’ agreement Conclusion Decision [ 1 ] A. S.’s appeal is allowed. The General Division made a legal error and didn’t follow a fair process. The matter will return to the General Division for reconsideration by another member. Background [ 2 ] A. S. is the Claimant. She applied for Employment Insurance benefits. The Canada Employment Insurance Commission (Commission) decided that she didn’t have enough hours of insurable employment to establish a benefit period. Footnote 1 [ 3 ] A few years later, the Claimant asked the Commission to reconsider its decision. Footnote 2 The Commission decided that the request was made late and found that the delayed request didn’t meet the requirements of the law. Footnote 3 It refused to give an extension of time. [ 4 ] The General Division dismissed the Claimant’s appeal. It found that the Commission had exercised its discretion in a judicial manner when it denied an extension of time to request a reconsideration. Footnote 4 [ 5 ] The parties agree that the General Division made a legal error and didn’t follow a fair process. To fix the errors, they agree that the file should return to the General Division for reconsideration by a different member. Footnote 5 Footnote 6 The parties agree on the outcome of the appeal [ 6 ] I wrote to the parties to discuss the possibility of a settlement. In the alternative, I noted that we would discuss a new hearing date in light of the Commission’s request to reschedule the hearing. Footnote 7 [ 7 ] A case conference was held on March 4, 2026. The Claimant and the Commission attended. Footnote 8 I provided information to the parties about options available including the possibility of a settlement and an agreement decision. I also explained what to expect at the Appeal Division hearing, the type of errors I could consider and remedies. [ 8 ] At the case conference, the Commission conceded the appeal, which was also previously set out in their written arguments to the Appeal Division. Footnote 9 The Claimant asked for more time to consider the options available and said she would write back. She agreed to let me know by March 6, 2026. [ 9 ] The Claimant replied by the deadline confirming that she agreed the General Division made errors and that the appeal should go back to the General Division for reconsideration by a different member. Footnote 10 [ 10 ] The parties have asked for a written agreement based on the following: a) The General Division made a legal error when it substituted with its own discretion and analyzed each of the factors set out in section 1 of the Reconsideration Request Regulations (Regulations). b) The General Division didn’t follow a fair process because the Claimant didn’t get a “full and fair opportunity” and didn’t understand the case she had to meet. I accept the parties’ agreement [ 11 ] I am accepting the parties’ agreement because it complies with the law and fits with the evidence. My reasons follow. [ 12 ] Section 1(1) of the Regulations says that the Commission may allow a longer period to make a request for reconsideration of a decision if the Commission is satisfied that there is a reasonable explanation for requesting a longer period and the person has demonstrated a continuing intention to request a reconsideration. [ 13 ] In cases where the delay is over 365 days from the communication date, the Regulation says that the Commission must also be satisfied that the request for reconsideration has a reasonable chance of success, and that no prejudice would be caused to the Commission or a party by allowing a longer period to make the request. Footnote 11 [ 14 ] The Federal Court confirmed, in [NAME]  v  Canada (Attorney General), 2017  FC  297, confirms that the Commission’s decision regarding an extension of time to request a reconsideration is a discretionary decision. Footnote 12 [ 15 ] The General Division in this case concluded that the Commission had exercised its discretion in a judicial manner when it refused to give the Claimant an extension of time to request a reconsideration. Footnote 13 It then proceeded to make its own findings on each of the factors set out in section 1 of the Regulations. Footnote 14 In doing so, it made a legal error. [ 16 ] There are essentially two pathways. Let me explain. [ 17 ] If the General Division finds that the Commission has exercised its discretion in a judicial manner, then the appeal is dismissed. This means that the General Division couldn’t disturb the Commission’s decision to refuse an extension of time and substitute with its own findings on section 1 of the Regulations. Footnote 15 [ 18 ] But if the General Division finds that the Commission didn’t exercise its discretion in a judicial manner, then it would have been required to render the decision the Commission “should have given” and apply the criteria set out in section 1 of the Regulations. Put simply, the only way the General Division could substitute with its own findings on the factors in section 1 of the Regulations would have been to decide that the Commission hadn’t exercised their discretion in a judicial manner. [ 19 ] The General Division made a legal error because it found the Commission had exercised its discretion in a judicial manner and substituted with its own findings on section 1 of the Regulations as well. Footnote 16 [ 20 ] I also listened to the audio recording of the hearing. The General Division identified the factors set out in section 1 of the Regulations, but it didn’t identify and explain one of the main issues it had to decide—which was whether the Commission had exercised its discretion in a judicial manner and the applicable legal test set out in Canada (Attorney General)  v  [NAME] , A-694-94. [ 21 ] The [NAME] decision says that a discretionary power is not exercised “judicially” if it can be established that the decision-maker: acted in bad faith acted for an improper purpose or motive, took into account an irrelevant factor ignored a relevant factor, or acted in a discriminatory manner. [ 22 ] The General Division didn’t follow a fair process. Footnote 17 It didn’t explain the issues it had to decide, the legal test and applicable law related to the Commission’s exercise of their discretion. The result is that the Claimant didn’t get a full and fair opportunity because she didn’t know the case she had to meet. So, the record is incomplete. [ 23 ] I’ve accepted the parties’ agreement for the reasons above, so the Appeal Division hearing is cancelled and no longer necessary. [ 24 ] One final note. I can appreciate that the issues and legal test in this case is complicated. The Claimant noted this at the case conference as well. The Claimant can ask the General Division for a case conference before her hearing takes place if she needs further clarification of what issues will be decided, the legal test and applicable law. Footnote 18 Conclusion [ 25 ] The appeal is allowed. The parties agree that the General Division made a legal error and didn’t follow a fair process. They also agree that it should return to the General Division for reconsideration by another member. Footnotes Footnote 1 See Commission’s decision at pages GD3-14 to GD3-15. Return to footnote 1 referrer Footnote 2 See request for reconsideration at pages GD3-16 to GD3-21. Return to footnote 2 referrer Footnote 3 See Commission’s decision at page GD3-24. See section 1 of the Reconsideration Request Regulations . Return to footnote 3 referrer Footnote 4 See General Division decision at pages AD1A-1 to AD1A-9. Return to footnote 4 referrer Footnote 5 See section 58(1)(b)(c) of the Department of Employment and Social Development Act ( DESD Act). Return to footnote 5 referrer Footnote 6 See pages AD5-1 to AD5-4, AD0A-1 to AD0A-2 and AD8-1. Return to footnote 6 referrer Footnote 7 See pages AD4-1 and AD5-1 to AD5-4. Return to footnote 7 referrer Footnote 8 See pages AD0A-1 to AD0A-2. Return to footnote 8 referrer Footnote 9 See pages AD3-1 to AD3-5. Return to footnote 9 referrer Footnote 10 See page AD8-1. Return to footnote 10 referrer Footnote 11 See section 1(2)(a) of the Regulations. Return to footnote 11 referrer Footnote 12 Section 112(1)(b) of the Employment Insurance Act ( EI Act) also says, “any further time that the Commission may allow”. Return to footnote 12 referrer Footnote 13 See paragraphs 17 and 45 of the General Division decision. Return to footnote 13 referrer Footnote 14 See paragraphs 37, 42, 44 and 45 of the General Division decision. Return to footnote 14 referrer Footnote 15 See Canada (Attorney General)  v  [NAME] , 2008  FCA  388 at paragraph 13. Return to footnote 15 referrer Footnote 16 See section 58(1)(b) of the DESD Act. Return to footnote 16 referrer Footnote 17 See section 58(1)(c) of the DESD Act. Return to footnote 17 referrer Footnote 18 See section 37(1) of the Social Security Tribunal Rules of Procedure ( SST  Rules). Return to footnote 18 referrer