Social Security Tribunal Upholds Employment Insurance Reconsideration

Citation: [NAME]  v  Canada Employment Insurance Commission , 2026  SST  342 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Respondent: [redacted] Representative: [NAME] Decision under appeal: General Division decision dated March 3, 2026 (GE-26-540) Tribunal member: [NAME] of hearing: Videoconference Hearing date: May 27, 2026 Hearing participants: Appellant Respondent Respondent’s representative Decision date: June 19, 2026 File number: AD-26-157 On this page Decision Overview Issues Analysis Remedy Conclusion Decision [ 1 ] The General Division erred in law when it failed to review whether the Canada Employment Insurance Commission (Commission) acted judicially when it decided to reconsider the Claimant’s claim for benefits. [ 2 ] I am making the decision that should have been made. [ 3 ] The Canada Employment Insurance Commission (Commission) exercised its discretion judicially when it decided to reconsider the claim for benefits. [ 4 ] The appeal is dismissed. Overview [ 5 ] The Claimant, J. M., applied for regular Employment Insurance ( EI ) benefits. Footnote 1 He established a benefit period starting on September 27, 2020, and was paid EI benefits. [ 6 ] The Commission decided to reconsider the Claimant’s claim for EI benefits. It was determined that the Claimant hadn’t declared his earnings received as wages for the period of August 15, 2021, to September 5, 2021. Footnote 2 The Commission informed the Claimant he had to pay back the benefits he wasn’t entitled to. It issued a notice of debt in the amount of $1,917. Footnote 3 [ 7 ] The Claimant asked the Commission to reconsider its decision. Footnote 4 He said that he had not submitted payroll sheets for his work until his EI benefits had run out. He said he acted on the basis of information he had received from the Commission. [ 8 ] The Commission maintained its decision regarding the earnings received during the benefit period. Footnote 5 [ 9 ] The Claimant appealed to the General Division. The General Division dismissed the appeal. It decided the Commission had the authority to reconsider the Claimant’s claim. It also decided that the Claimant had received earnings during his benefit period and that they were allocated properly. [ 10 ] I granted the Claimant permission to appeal. [ 11 ] The Claimant doesn’t dispute that he received earnings from [NAME] when he worked from August 15, 2021, to September 5, 2021. He argues that the General Division should have considered the errors made by the Commission in his case. He alleges that the Commission informed him that he only had to declare wages when they were received. He says it isn’t fair that the Commission can reconsider his claim years after the fact. [ 12 ] The Commission concedes that the General Division erred in law when it failed to review whether the Commission acted judicially. Footnote 6 But it argues that the Commission did act judicially and that the Claimant received earnings that were properly allocated. Issues [ 13 ] The issues in this appeal are: Did the General Division make an error of law when it failed to determine if the Commission had acted judicially when it reconsidered the Claimant’s claim for benefits? If so, what is the appropriate remedy? Analysis [ 14 ] The Appeal Division can intervene if the General Division made one of the following errors: breached the principles of procedural fairness acted beyond its powers or refused to exercise its powers made an error of law based its decision on an important error of fact. Footnote 7 [ 15 ] I only need to identify one error to be able to intervene. The General Division erred in law when it didn’t determine if the Commission had exercised its discretion judicially [ 16 ] Section 52(5) of the Employment Insurance Act allows the Commission to reconsider a claim for benefits within 72 months (6 years) if it is of the opinion that a false or misleading statement or representation has been made in connection with a claim. [ 17 ] The decision to reconsider a claim for benefits is discretionary. Footnote 8 The Commission must exercise that discretion judicially. Footnote 9 [ 18 ] The General Division decided that the Commission had the authority to reconsider the claim within 72 months because the Commission believed the Claimant had made a false or misleading statement. Footnote 10 But it didn’t assess whether the Commission had acted judicially when it decided to reconsider the claim. [ 19 ] The Commission concedes that the General Division should have considered whether the Commission exercised its discretion judicially. [ 20 ] I find that the General Division made an error of law when it failed to complete this step of the analysis. Remedy [ 21 ] The Claimant and the Commission agree that I should make the decision that should have been made. [ 22 ] The process before the General Division was fair and the record is complete. [ 23 ] So, I will make the decision that should have been made. Footnote 11 The Claimant received earnings and the earnings were allocated correctly [ 24 ] The Claimant has never denied that he worked from August 15, 2021, to September 5, 2021. At the General Division hearing, the Claimant confirmed he was paid the following amounts for the work performed during the following weeks Footnote 12 : Week of August 15, 2021: $968.00 Week of August 22, 2021: $726.00 Week of August 29, 2021: $1,053.00 Week of September 5, 2021: $1,329.00 [ 25 ] The Employment Insurance Regulations say that the entire income of a claimant arising out of any employment are earnings that must be taken into account to be deducted from benefits payable. Footnote 13 [ 26 ] The income the Claimant received for his work at [NAME] constitutes earnings. [ 27 ] The Employment Insurance Regulations set out that earnings be allocated to weeks in which the services were performed. Footnote 14 Furthermore, when a claimant fails to declare earnings to the Commission for which benefits were claimed, the amount of the undeclared earnings must be deducted from the benefits paid to the claimant. Footnote 15 [ 28 ] I am adopting the reasoning and conclusions of the General Division on this matter, at paragraphs 9 to 23 of its decision. Footnote 16 The Claimant made false statements [ 29 ] The Claimant never declared that he was working during those weeks, when he filled out his EI claim reports. [ 30 ] For the periods of August 8 to August 21, 2021, August 22 to September 4, 2021, and September 5 to September 18, 2021, the Claimant answered “no” to the following question: “Did you work or receive any earnings during the period of this report? This includes work for which you will be paid later, unpaid work or self-employment.” Footnote 17 [ 31 ] The Claimant testified that he withheld his time sheets for two pay periods to avoid getting paid by [NAME] while he was receiving EI benefits. Though the Claimant says he was instructed by Service Canada that this would not impact his benefits, the EI reports clearly asked the Claimant to declare any work, even work for which he would be paid at a future date. [ 32 ] When the Commission received the Claimant’s record of employment, it realized that he had failed to disclose the fact that he worked during this time and received earnings for that work. So, the Commission had reason to believe that the Claimant had made false statements in his EI reports. It was therefore able to reconsider his claim for benefits up to 72 months after he applied for benefits. Footnote 18 [ 33 ] The Commission reconsidered the claim within the 72-month period. He established a benefit period on September 27, 2020. The Commission reconsidered his claim on October 15, 2025. So, the Commission reconsidered the claim about 60 months after benefits were paid. The Commission acted judicially when it reconsidered the Claimant’s claim for benefits [ 34 ] The Commission must have acted judicially when deciding to reconsider the Claimant’s claim for benefits for its decision to stand. [ 35 ] If the Commission acted in bad faith or for an improper purpose or motive, took into account an irrelevant factor or ignored a relevant factor or acted in a discriminatory manner, its decision must be set aside. Footnote 19 Factors relevant to the exercise of discretion [ 36 ] In [NAME] , the Federal Court of Appeal upheld an Appeal Division’s decision in which it was decided that the factors that help resolve the tension between claimants’ ability to rely on the finality of decisions and the Commission’s interest in their accuracy are relevant to the exercise of discretion. Footnote 20 [ 37 ] The Digest of Benefit Entitlement Principles guides the Commission in exercising its discretion to reconsider a claim. As the Federal Court of Appeal explained in [NAME] , the Commission will reconsider claims when benefits were paid as a result of a false statement, such as in the present case. Footnote 21 [ 38 ] I find that the factors the Claimant wishes the Commission had considered are not relevant. The argument of delay isn’t relevant because the Commission had up to 72 months to reconsider the claim for benefits [ 39 ] The Claimant argues that the delay between when he was first asked about earnings received from [NAME] and the Commission’s decision to reconsider is disproportionate. [ 40 ] The Commission asked the Claimant about the earnings received from [NAME] in 2022. The Claimant provided a response to that inquiry in December 2022. The Commission waited three years after having received the Claimant’s response to reconsider his claim. Footnote 22 [ 41 ] The Employment Insurance Act allows the Commission to reconsider a claim within 72 months, when it is of the opinion the Claimant made false representations. Footnote 23 [ 42 ] The Claimant may find this is too long. But I must follow the law as it is written. The errors the Commission may have made are not relevant to its decision to reconsider the claim [ 43 ] The Claimant argues that the errors he thinks the Commission made should be taken into account in the decision to reconsider his claim for benefits. He says that it isn’t fair that the Commission is allowed to make errors without considering the impact on the Claimant. Footnote 24 [ 44 ] The Claimant argues that the following errors should be considered in the Commission’s decision to reconsider his claim for benefits: Footnote 25 Commission representatives told him that he only had to declare his earnings when received, as opposed to earned. He relied on what he assumed was correct information. The Commission issued a notice of debt in the amount of $1,917 on September 30, 2023, but he was never notified in his Service Canada account. Footnote 26 The Commission mistakenly said he received earnings from a different employer in a letter dated September 26, 2023. Footnote 27 The Commission later said this letter was a mistake and should not have been sent to him. Footnote 28 [ 45 ] On the first point, regardless of what a Service Canada agent may have told the Claimant, whatever representations were made to him were not relevant in the Commission’s decision to reconsider his claim. [ 46 ] The Federal Court of Appeal has stated in many decisions that “a claimant cannot rely on misinformation from the Commission or its representatives that is contrary to what is prescribed by law.” Footnote 29 Indeed, it has long been established by the courts that the Commission has no power to change the law and so the representations it makes about the law cannot be relied on to act in a way contrary to the law. Footnote 30 Though the Claimant may disagree with this principle, I am obliged to follow it. [ 47 ] The fact that a letter inquiring about the Claimant potentially receiving earnings from a different employer in September 2023 was sent by error is not relevant to the Commission’s decision to reconsider his claim for benefits. The file shows that this was an error and the Claimant was not asked to repay any benefits in connection to that letter. The Commission apologized for the mistake. [ 48 ] The fact that the Claimant wasn’t notified about the notice of debt in September 2023 doesn’t seem to have caused him any harm. He explained that the Canada Revenue Agency did not start collecting on the debt at that time. [ 49 ] I find the Commission didn’t ignore any relevant factors. [ 50 ] The Commission’s decision to reconsider the Claimant’s claim for benefits was based on the relevant factor that he made a false statement. Indeed, the Claimant failed to disclose that he worked and received earnings during his benefit period. The Claimant has not shown that the Commission acted in a non-judicial manner [ 51 ] There is no evidence that the Commission considered any irrelevant factors, acted for an improper purpose or in a discriminatory manner. It simply acted to ensure the accuracy of the benefits paid to the Claimant, within the limits set out in the law. I cannot write off the debt [ 52 ] The Claimant asks that his debt be written off. Footnote 31 The Commission has already denied the Claimant’s request for a write-off. Footnote 32 The General Division didn’t have jurisdiction to review the Commission’s decision about the write-off. The Appeal Division doesn’t either. Footnote 33 Conclusion [ 53 ] The General Division erred in law by failing to address if the Commission acted judicially when deciding to reconsider his claim. [ 54 ] I find that the Commission acted judicially when it decided to reconsider the Claimant’s claim for benefits. [ 55 ] I am dismissing the appeal. Footnotes Footnote 1 See the Claimant’s application for benefits at GD3-6. Return to footnote 1 referrer Footnote 2 See the notice of decision at GD3-49. Return to footnote 2 referrer Footnote 3 See the notice of debt at GD3-51. Return to footnote 3 referrer Footnote 4 See the Claimant’s request for reconsideration at GD3-56. Return to footnote 4 referrer Footnote 5 See the Commission’s decision at GD3-62. Return to footnote 5 referrer Footnote 6 See the Commission’s submissions at AD3-1. Return to footnote 6 referrer Footnote 7 See section 58(1) of the Department of Employment and Social Development Act . Return to footnote 7 referrer Footnote 8 See the Federal Court of Appeal’s decision [NAME]   v   Canada (Attorney General) , 2024  FCA  48 at paragraph 8. Return to footnote 8 referrer Footnote 9 See the Federal Court of Appeal’s decision [NAME]   v   Canada (Attorney General) , 2024  FCA  48. Return to footnote 9 referrer Footnote 10 See the General Division’s decision at AD1A-5 at paragraph 25. Return to footnote 10 referrer Footnote 11 Section 59(1) of the Department of Employment and Social Development Act states that the Appeal Division can give the decision the General Division should have given. Return to footnote 11 referrer Footnote 12 Listen to the recording of the General Division’s hearing at 00:10:00 and 00:15:45. Return to footnote 12 referrer Footnote 13 See section 35(2) of the Employment Insurance Regulations . Return to footnote 13 referrer Footnote 14 See section 36(4) of the Employment Insurance Regulations . Return to footnote 14 referrer Footnote 15 See section 19(3)(a) of the Employment Insurance Act . Return to footnote 15 referrer Footnote 16 See the General Division’s decision at AD1A-3. Return to footnote 16 referrer Footnote 17 See the EI reports at GD3-22, GD3-27 and GD3-31. Return to footnote 17 referrer Footnote 18 See section 52(5) of the Employment Insurance Act . Return to footnote 18 referrer Footnote 19 See the Federal Court of Appeal’s decision Canada (Attorney General)   v   Purcell (C.A.) , [1996] 1  FC  644. Return to footnote 19 referrer Footnote 20 See the Federal Court of Appeal’s decision [NAME]   v   Canada (Attorney General) , 2024  FCA  46 at paragraph 41. Return to footnote 20 referrer Footnote 21 See the Federal Court of Appeal’s decision [NAME]   v   Canada (Attorney General) , 2024  FCA  46 at paragraph 20. Return to footnote 21 referrer Footnote 22 The Claimant’s response to Service Canada’s inquiry about his earnings was received on December 5, 2022, see GD3-41. The Commission issued its decision to reconsider his claim for benefits on October 15, 2025, see GD3-47. Return to footnote 22 referrer Footnote 23 See section 52(5) of the Employment Insurance Act . Return to footnote 23 referrer Footnote 24 See the Claimant’s application to the Appeal Division at AD1-3. Return to footnote 24 referrer Footnote 25 See the Claimant’s submissions at AD4-2 and following. Return to footnote 25 referrer Footnote 26 See the notice of debt at GD3-44. Return to footnote 26 referrer Footnote 27 See the letter at AD4-4. Return to footnote 27 referrer Footnote 28 See the notes at GD3-46 about a telephone conversation in which the Service Canada agent informed the Claimant that the September 26, 2023, letter was sent in error. Return to footnote 28 referrer Footnote 29 See the Federal Court of Appeal’s decision [NAME]   v   Canada (Attorney General) , 2024  FCA  48 at paragraph 38. Return to footnote 29 referrer Footnote 30 See the Federal Court of Appeal’s decision Granger   v   Canada Employment and Immigration Commission , [1986] 3  FC  70. Return to footnote 30 referrer Footnote 31 See the Claimant’s submissions at AD4-3. Return to footnote 31 referrer Footnote 32 See the decision denying the write-off of the overpayment at GD3-63. Return to footnote 32 referrer Footnote 33 See section 112.1 of the Employment Insurance Act. A decision of the Commission respecting the writing off of an amount payable is not subject to review under section 112. Return to footnote 33 referrer