Tribunal Adjusts Claimant’s Weekly Benefits to $524 After Reviewing Calculation Error

OUTCOME: Allowed

Citation: Canada Employment Insurance Commission  v  AS , 2026  SST  288 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Representative: [NAME] Respondent: [redacted] General Division decision dated October 7, 2025 (GE-25-2626 and GE-25-2628) Tribunal member: [NAME] of hearing: Teleconference Hearing date: February 4 and 11, 2026 Hearing participants: Appellant’s representative Respondent Decision date: April 10, 2026 File number: AD-25-705 and AD-25-732 On this page Decision Overview Preliminary matters Issues Analysis Conclusion Decision [ 1 ] The appeal is allowed. The General Division made an important error of fact when it calculated the Claimant’s rate of weekly benefits. [ 2 ] I have given the decision that the General Division should have given. The rate of weekly benefits is $524.00. Overview [ 3 ] [RESPONDENT]. is the Claimant. He applied for Employment Insurance ( EI ) regular benefits and a benefit period was established on November 26, 2023. In August 2024, the Claimant asked to have the regular EI benefits converted to sickness EI benefits. [ 4 ] The Canada Employment Insurance Commission (Commission) had to calculate and recalculate the Claimant’s weekly benefit rate several times. This wasn’t any fault of the Claimant. The [APPELLANT] employer revised the Claimant’s record of employment on several occasions. [ 5 ] The Claimant appealed to the Social Security Tribunal (Tribunal) General Division. The [APPELLANT] believed he was entitled to more weeks of EI benefits and thought the rate of weekly benefits was wrong. The General Division agreed with the Commission that the Claimant was only entitled to a maximum of 50 weeks of combined (regular and sickness) EI benefits. The [APPELLANT] still feels he should be entitled to more weeks of EI benefits. The General Division said nothing in the law allows the Claimant to receive more than 50 weeks of EI benefits. The Claimant still disagrees. [ 6 ] The General Division decided the Commission had made an error with its weekly benefit rate calculation. The General Division changed the Claimant’s weekly benefit rate from $521 to $531. The Commission says the General Division made an error. It also admits that it too made an error and the correct weekly benefit rate is $524. [ 7 ] Both the Claimant and the Commission have appealed to the Tribunal’s Appeal Division. I agree with the General Division that the Claimant is only entitled to 50 weeks of combined regular and sickness EI benefits. But I found the General Division made an important error of fact when it calculated the Claimant’s weekly rate of benefits. [ 8 ] In two instances, the General Division used the [APPELLANT] biweekly paycheque total from his employer. The rest of the time the General Division used the Commission’s provided weekly sums. The problem is that the Claimant’s biweekly pay periods overlapped with the Commission’s weekly periods. The mixed methodology produced incorrect figures that the General Division relied on to calculate the rate of weekly benefits. [ 9 ] I have given the decision the General Division should have given. The Claimant’s rate of weekly benefits is $524.00. Preliminary matters [ 10 ] The Commission filed an appeal of the General Division’s decision. Some time later the Claimant also filed an appeal. The appeals were joined. Leave to appeal had already been granted on the Commission’s file. So, the parties were notified to file their written arguments based on the errors they felt occurred. [ 11 ] The hearing was held in two parts. The Claimant wanted time to research an issue and didn’t have enough time to do this on the first hearing date. Issues [ 12 ] The issues in this appeal are: a) Did the General Division make an error of law, or important error of fact, when it decided the Claimant received the maximum number of weeks allowed under the [NAME]? b) Did the General Division make an important error of fact when it calculated the Claimant’s rate of weekly benefits? c) If so, how should the error be fixed? Analysis [ 13 ] I can only intervene if the General Division made an error. There are only certain errors I can consider. Briefly, I can intervene if the General Division made at least one of the following errors: Footnote 1 It acted unfairly in some way. It decided an issue it shouldn’t have, or didn’t decide an issue it should have. This is also called an error of jurisdiction. It made an error of law. It based its decision on an important error of fact. The General Division didn’t make an error of law, or important error of fact, when it decided the Claimant received the maximum number of weeks allowed under the [NAME] [ 14 ] The [APPELLANT] argued the General Division made either an error of law or an important error of fact. He argued the General Division didn’t apply section 10(10) of the Employment Insurance Act ( [NAME]). He said the error occurred when the General Division decided he wasn’t entitled to more than 50 weeks of combined EI benefits. The Claimant argued that section 10(10) of the [NAME] allows for an extension of EI benefits. Footnote 2 [ 15 ] An important error of fact happens when the General Division makes its decision based on an erroneous (wrong) finding of fact that was “made in a perverse or capricious manner or without regard for the material before it”. Footnote 3 This means the General Division had to ignore, misunderstand or overlook the evidence in some way. [ 16 ] Some examples of an error of law are: if the General Division misinterprets the legislation or it doesn’t apply the law correctly. [ 17 ] The [APPELLANT] is arguing the General Division made an error of law because it didn’t apply section 10(10) of the [NAME]. He also argued that this could be an important error of fact because his personal circumstances weren’t considered to extend the number of benefit weeks payable. [ 18 ] The [APPELLANT] says his situation should be considered. He feels he should be entitled to more than 50 weeks of EI benefits. During the Appeal Division hearing, I asked the Claimant if he had any arguments about section 12(6) of the [NAME]. I asked about that section because it applies when someone receives regular benefits and sickness benefits during the same benefit period. In those cases, the combined maximum number of weeks of benefits can’t exceed 50. Footnote 4 [ 19 ] The [APPELLANT] agreed that the Tribunal doesn’t have any authority to go outside the [NAME]. He then said he wants the Appeal Division to do what is procedurally fair and find a way to get him more EI benefits. It seems the [APPELLANT] is asking for special consideration for his situation. [ 20 ] The Claimant is arguing section 10(10) of the [NAME] allows the number of weeks in a benefit to be extended. But even if the Claimant met the requirements of section 10(10), it would only extend the benefit period. It wouldn’t entitle him to receive any more weeks of paid benefits. In other words, it would extend the time in which the maximum number of weeks could be payable. [ 21 ] Section 12(1) of the [NAME] says a claimant may be paid benefits for each week during the period of unemployment subject to the maximums in this section. Section 12(2.1) explains the general maximum for regular EI benefits. Section 12(3) sets out the general maximum for sickness benefits. But both sections must be read with section 12(6). Section 12(6) says the combined total maximum of 12(2.1) and 12(3) is 50 weeks. [ 22 ] The parties agree the Claimant received a total of 50 weeks of both regular and sickness EI benefits. Section 12(6) sets a maximum number of benefit weeks when regular benefits are combined with special benefits. Section 10(10) sets out the length of a benefit period. This means the two sections address different things. One addresses the length of a benefit period. The other section is about the maximum number of combined benefit weeks a person may receive in certain situations. [ 23 ] The language of section 12(6) isn’t permissive. In other words, where a claimant receives regular benefits in addition to special benefits, there is a combined maximum of 50 weeks. The Tribunal has no discretion to increase this maximum. The language is clear that the combined maximum number of weeks can’t exceed 50. The parties agreed the Claimant received the combined maximum of 50 weeks. [ 24 ] The General Division dealt with this in its decision. Footnote 5 The General Division determined the Claimant received the legally allowable maximum number of EI benefit weeks. There is no room in the law to alter this amount. There is no error of law. [ 25 ] There is also no important error of fact. The General Division didn’t misinterpret the facts of the case. The General Division correctly applied the maximum number of weeks set out in the legislation. The Tribunal has no jurisdiction to waive this limit. So, the Claimant was only entitled to receive a maximum of 50 weeks of combined EI benefits. The General Division made an important error of fact when it calculated the Claimant’s rate of weekly benefits [ 26 ] Section 14 of the [NAME] explains how to determine the rate of weekly benefits. As part of that calculation, the Claimant’s regional rate of unemployment must be determined. The General Division decided the Claimant’s regional rate of unemployment was 6.7%. Footnote 6 This finding hasn’t been disputed. [ 27 ] The rate of weekly benefits is the maximum amount a claimant may receive each week of their benefit period. In general, this amount is equal to 55% of the claimant’s average weekly insurable earnings. Footnote 7 This amount is determined by looking at the weeks in the qualifying period when the claimant had their highest insurable earnings, often called “best weeks”. [ 28 ] The qualifying period is typically the 52 weeks immediately before the beginning of the benefit period. The number of weeks used in the calculation varies. It’s based on the regional rate of unemployment in the area the claimant ordinarily resides. Footnote 8 [ 29 ] In this case, based on the Claimant’s regional rate of unemployment, the Claimant’s “best” 21 weeks of insurable earnings in his qualifying period is used to calculate the rate of weekly benefits. The best 21 weeks are those weeks for which he received the highest insurable earnings. Footnote 9 [ 30 ] The parties agreed at the hearing that the issue is a mathematical calculation. The Claimant argued there isn’t a specified way of prorating biweekly pay. The Commission agreed, but said any method used must be consistent. The Commission argued the General Division wasn’t consistent because it used the same biweekly pay to calculate two different weeks of insurable earnings. As a result, the Commission argues some of the Claimant’s earnings were counted twice within the General Division’s stated 21 best weeks of insurable earnings. [ 31 ] The Commission argued to the General Division that the Claimant’s sum of the best 21 weeks of insurable earnings was $19,874 (rounded). The General Division relied on some payment stubs the Claimant submitted and decided the sum of the best 21 weeks was $20,287 (rounded). [ 32 ] The Commission has now acknowledged that it made an error when it said the total was $19,874. It said the calculation missed $134.82 that the Claimant was paid on January 6, 2023. Footnote 10 It now says the total for the 21 best weeks of insurable earnings is $20,009 (rounded). This isn’t based on new information. Rather, the Commission is acknowledging it didn’t include the $134.82 payment received by the Claimant on January 6, 2023. [ 33 ] The Commission says the General Division made an important error of fact when it was calculating the Claimant’s 21 best weeks. The General Division didn’t adequately explain how it calculated the best weeks. A chart, while not required, would have been helpful. The General Division made an important error of fact when it replaced only four weeks of insurable earnings provided by the Commission with amounts from biweekly pay stubs. The General Division accepted the Commission’s totals for the other 17 weeks of insurable earnings. [ 34 ] By replacing four weeks of weekly insurable earnings with two biweekly pay stubs, the General Division misaligned the earnings. It didn’t consider the employer’s work week ran from a Saturday to Friday. The issue is that, under the [NAME], a week runs from a Sunday to a Saturday. When comparing figures, the time period matters. So does what earnings were actually paid during that period. [ 35 ] The Claimant received a payment of $3,480.96 for the period of December 31, 2022, to January 13, 2023. The Commission said, and the General Division agreed, that $4.91 was a taxable benefit and shouldn’t be included in the insurable earnings. Footnote 11 The Claimant didn’t dispute this finding. The General Division added in the January 6, 2023, payment of $134.82. The General Division concluded the insurable earnings for this period were $3,610.87. [ 36 ] The Claimant received a payment of $3,000.18 for March 11, 2023, to March 24, 2023. The Commission said, and the General Division agreed, that $4.52 was a taxable benefit not insurable earnings. Footnote 12 The Claimant didn’t dispute this finding. So, the General Division concluded that the insurable earnings for this period was $2,995.66. [ 37 ] The Commission argues that by accepting the other 17 weeks of insurable earnings, meant the General Division calculated those weeks using the same start and end days. But the biweekly pay stubs the General Division used to replace four weeks of insurable earnings covered different start and end times. Footnote 13 This resulted in some earnings being counted twice. The Commission says the proper approach was to determine which portions of the biweekly pay applied to each [NAME] week. It argues that failing to do so was an important error of fact. [ 38 ] The Commission provided a chart breaking down each week and the corresponding insurable earnings. Footnote 14 The chart showed the earnings the Commission originally calculated, the amounts decided by the General Division, and the amounts the Commission says should be used instead. Again, noting that the Commission acknowledged it made an error when it forgot to include the $134.82 the [APPELLANT] earned on January 6, 2023. [ 39 ] This is a copy of the table: Week starting Original Commission General Division New Commission November 19, 2023 $660.01 $660.01 $660.01 November 12, 2023 $647.91 $647.91 $647.91 April 30, 2023 $619.42 $619.42 $619.42 April 23, 2023 $621.88 $621.88 $621.88 April 16, 2023 $618.45 $618.45 $618.45 April 9, 2023 $618.45 $618.45 $618.45 April 2, 2023 $666.11 $666.11 $666.11 March 26, 2023 $674.03 $674.03 $674.03 March 19, 2023 $1,380.11 $2,995.66 $1,380.11 March 12, 2023 $1,497.86 $1,497.86 March 5, 2023 $731.25 $731.25 $731.25 February 19, 2023 $670.65 $670.65 $670.65 February 12, 2023 $681.80 $681.80 $681.80 February 5, 2023 $619.48 $619.48 $619.48 January 8, 2023 $1,577.39 $3,610.87 $1,577.39 January 1, 2023 $1,738.03 $1,872.85 December 25, 2022 $946.17 $946.17 $946.17 December 18, 2022 $814.14 $814.14 $814.14 December 11, 2022 $661.50 $661.50 $661.50 December 4, 2022 $636.02 $636.02 $636.02 November 27, 2022 $659.67 $659.67 $659.67 Vacation pay $2,133.00 $2,133.00 $2,133.00 Total: $19,874 $20,287 $20,009 [ 40 ] The Commission says the General Division used an inconsistent method to calculate the Claimant’s 21 best weeks. The Commission says the General Division “double counted” some of the funds because of when the employer’s work week started and ended. [ 41 ] For example, on the Claimant’s pay stub for December 31, 2022, to January 13, 2023. That stub includes some money that was earned for the week of December 25, 2022, to December 31, 2022. The General Division used $3,610.87 for the two weeks of January 1, 2023, and January 8, 2023. But this includes money from the previous week, namely the amount from December 31, 2022. So, that means there is an overlap. [ 42 ] The same is true when the General Division combined the weeks of March 12, 2023, and March 19, 2023. The Claimant’s employer used the pay period of March 11, 2023, to March 24, 2023. That means March 11, 2023, was used twice. Footnote 15 [ 43 ] When the General Division combined weekly amounts with biweekly pay period totals, it ended up double-counting some of the Claimant’s earnings. The Commission says $20,009 (rounded) is the correct total of insurable earnings in the calculation period to use. Using this amount, the rate of weekly benefits would be $524.00. Footnote 16 [ 44 ] The [APPELLANT] says this is strictly a mathematical calculation. He says there isn’t a specific way to prorate biweekly earnings. He thinks there is nothing wrong with the way the General Division calculated things. [ 45 ] He also says he’s done nothing wrong here and he is the one being penalized. He says his employer was difficult. He says the Commission made many calculation errors and repeatedly changed what his weekly rate of benefits is. He also says the difference between what the General Division calculated ($531) and what the Commission is suggesting ($524) is only $7.00 per week. He doesn’t think it’s that big of a difference and says the General Division figures should remain. [ 46 ] The General Division made an important error of fact. An employer’s start and end days in a work week don’t have to be the same as the start and end days used in the [NAME]. But, when calculating the rate of weekly benefits, a consistent method must be used for all weeks of insurable earnings. It’s also important to make sure that earnings are allocated to the proper week. The General Division needed to use a consistent approach across all time periods to make sure funds weren’t counted twice. Remedy [ 47 ] I have found an error. There are two main ways I can remedy (fix) it. I can make the decision the General Division should have made. I can also send the case back to the General Division. Footnote 17 [ 48 ] The Commission says the record is complete and that the parties had a full opportunity to present all evidence. The [APPELLANT] said he wasn’t sure about his position but agreed he had an opportunity to present all his evidence to the General Division. [ 49 ] Because the parties agree the record is complete, I will give the decision that the General Division should have given. Footnote 18 The [APPELLANT] received the maximum number of weeks allowed under the [NAME] [ 50 ] For the reasons above, I found the General Division didn’t make any reviewable error. I am therefore adopting their findings about the maximum number of weeks the Claimant is entitled to receive. Footnote 19 The Claimant received 50 weeks of EI benefits, which is the maximum number of weeks he was allowed. The rate of weekly EI benefits is $524 [ 51 ] I found an error with the way the General Division calculated the rate of weekly benefits. I also accept the Commission made an error when it didn’t include one of the payments the Claimant received. [ 52 ] The Claimant’s qualifying period is from November 27, 2022, to November 25, 2023. This is the 52 weeks that preceded the Claimant’s separation from his employer. This hasn’t been disputed. [ 53 ] The insurable earnings that are included in the rate of weekly benefits calculation are taken from a claimant’s qualifying period. Footnote 20 The number of weeks that are included in the rate of weekly benefits calculation is dependent on a claimant’s regional rate of unemployment. Next, as noted above, the parties don’t dispute the Claimant’s regional rate of unemployment was 6.7%. So, that means the Claimant’s 21 best weeks of insurable earnings during the qualifying period will be used. [ 54 ] No one has disputed which weeks are the Claimant’s best 21 weeks. So, I am accepting that the 21 best weeks are the insurable earnings in the weeks of: November 27, 2022; December 4, 2022; December 11, 2022; December 18, 2022; December 25, 2022; January 1, 2023; January 8, 2023; February 5, 2023; February 12, 2023; February 19, 2023; March 5, 2023; March 12, 2023; March 19, 2023; March 26, 2023; April 2, 2023; April 9, 2023; April 16, 2023; April 23, 2023; April 30, 2023; November 12, 2023; and November 19, 2023. [ 55 ] I agree with the Claimant that nothing should be calculated to his disadvantage. But that doesn’t mean it’s permissible to count the same figures twice. The Claimant said he thinks all the General Division’s insurable earnings calculations are correct. I disagree for the reasons I laid out above. I will show below what the correct weekly insurable earnings are for the disputed weeks. Footnote 21 [ 56 ] The Claimant’s pay of $3,610.87 from December 31, 2022, to January 13, 2023, must be properly split. Footnote 22 The agreed upon insurable earnings from December 25, 2022, to December 31, 2022, was $946.17. This was the Commission’s position and the General Division’s finding. The Claimant hasn’t disputed this. [ 57 ] So, the following week of January 1, 2023, can’t include the amount from December 31, 2023. However, it must include the amount that the Commission admits they didn’t include. Namely, $134.82 as shown on his pay stub for January 6, 2023. Footnote 23 That means the total insurable earnings for the week of January 1, 2023, is $1,872.85. Footnote 24 [ 58 ] The agreed upon insurable earnings from March 5, 2023, to March 11, 2023, was $731.25. This was the Commission’s position and the General Division’s finding. The Claimant hasn’t disputed this. [ 59 ] So, the following week of March 12, 2023, can’t include the amount from March 11, 2023. That means the total insurable earnings for the week of March 12, 2023, is $1,497.86. Footnote 25 The insurable earnings for the week of March 19, 2023, is $1,380.11. This ensures the following week of March 26, 2023, has insurable earnings of $674.03 which wasn’t disputed by the parties. [ 60 ] The above rates are in compliance with the [NAME]. It ensures that [APPELLANT] best weeks of insurable earnings within his qualifying period are used. I accept the Claimant’s 21 best weeks total $20,009. When this amount is divided by 21 and multiplied by 55%, it equals $524 per week. So, the rate of weekly benefits is $524.00. Conclusion [ 61 ] The appeal is allowed. The General Division made an error when it calculated the Claimant’s rate of weekly benefits. [ 62 ] I have given the decision that the General Division should have given. The rate of weekly benefits is $524.00. Footnotes Footnote 1 See section 58(1) of the Department of Employment and Social Development Act ( [NAME]). Return to footnote 1 referrer Footnote 2 See AD5-2 the Claimant’s written arguments. Return to footnote 2 referrer Footnote 3 See section 58(1)(c) of the [NAME]. Return to footnote 3 referrer Footnote 4 See section 12(6) of the [NAME]. Return to footnote 4 referrer Footnote 5 See the General Division decision at paragraphs 16 to 21. Return to footnote 5 referrer Footnote 6 See the General Division decision at paragraph 27. Return to footnote 6 referrer Footnote 7 See section 14(1) of the [NAME]. Return to footnote 7 referrer Footnote 8 See section 14(2) of the [NAME]. Return to footnote 8 referrer Footnote 9 These don’t have to be consecutive weeks. The weeks must be within the qualifying period. Return to footnote 9 referrer Footnote 10 See GD2-22, the Claimant’s pay stub dated January 6, 2023. Return to footnote 10 referrer Footnote 11 This is for the life accidental death and dismemberment employer paid premium. See GD22-23. Return to footnote 11 referrer Footnote 12 This is for the life accidental death and dismemberment employer paid premium. See GD22-24. Return to footnote 12 referrer Footnote 13 This refers to the difference between the employer’s work week and the [NAME] work week as noted above. Return to footnote 13 referrer Footnote 14 Whether this was new evidence was addressed at the hearing. The Claimant argued this table wasn’t before the General Division. I accept it isn’t new evidence. Instead, it’s a compiled chart of all the figures. Return to footnote 14 referrer Footnote 15 It was also used by the General Division, correctly, in the previous week of March 5, 2023, where it belongs. Return to footnote 15 referrer Footnote 16 This is calculated by taking $20,009 and dividing it by 21 (the number of weeks examined in the qualifying period) and then multiplying that by 55%. Return to footnote 16 referrer Footnote 17 Section 59(1) of the [NAME] me to fix the General Division’s errors in this way. Return to footnote 17 referrer Footnote 18 Section 59(1) of the Department of Employment and Social Development Act allows me to fix the General Division’s errors in this way. Return to footnote 18 referrer Footnote 19 See the General Division decision at paragraphs 16 to 21. Return to footnote 19 referrer Footnote 20 See section 14 of the [NAME]. Return to footnote 20 referrer Footnote 21 I will not go through the insurable earnings week by week. The Commission doesn’t dispute the other weeks of insurable earnings and the [APPELLANT] said he also thought those weeks were correct. Return to footnote 21 referrer Footnote 22 See GD2-23 of the Claimant’s Notice of Appeal to the General Division. Return to footnote 22 referrer Footnote 23 See GD2-22 of the Claimant’s Notice of Appeal to the General Division. Return to footnote 23 referrer Footnote 24 See AD4-5. This is the same as the Commission’s calculation. Return to footnote 24 referrer Footnote 25 See AD4-5. This is the same as the Commission’s calculation. Return to footnote 25 referrer