Employment Insurance (EI)

Decision

[1] I am allowing the appeal. The General Division made errors of procedural fairness and jurisdiction. I am returning the matter to the General Division to reconsider.

Overview

[2] R. M. is the Appellant. I will call him the Claimant because this appeal is about his claim for employment insurance (EI) benefits. The Respondent is the Canada Employment Insurance Commission, which I will call the Commission.

[3] The Claimant drives a school bus. He applied for benefits on December 31, 2023 (December application) for the school Christmas break. He indicated in the December application that his last day of work was December 20, 2023, and that he would return to work on January 9, 2024.

[4] The Commission did not “register” the Claimant’s December application because he still had some benefit entitlement available under the claim that he had filed a year earlier (the “original claim”). The Claimant did not file claim reports for December under the original claim, and he did not file claim reports after filing the December application. He did not receive any benefits for December under his original claim or under a new claim arising from his December application.

[5] The Claimant did not discover that he did not receive benefits in response to his December application until he made a new application for benefits on March 11, 2024 (March 2024 claim) for the school spring break. At that point, he asked the Commission to have his “claim” antedated to December 17, 2023. He said that he believed that his application acted as his claim report since he had expected to return to work in two weeks. The Commission’s notes at the time say that he was trying to reactivate his previous claim from December 17, 2023, and use his December 31, 2023, application instead of the March 3, 2024, application to start a new claim.^{Footnote 1}

[6] The Commission sent the Claimant a decision on May 28, 2024, saying that his “renewal claim” for Employment Insurance benefits could not start earlier than December 31, 2023, because he did not file his application on time and had not shown good cause for being late.

[7] The Claimant asked the Commission to reconsider but the Commission did not change its decision. The Claimant next appealed to the General Division of the Social Security Tribunal (Tribunal), which dismissed his appeal. It considered only whether the Claimant’s claim report could be antedated to December 17, 2023, and found that the Claimant did not show good cause for the delay in filing his claim report.

[8] The Claimant is now appealing to the Appeal Division.

[9] I am allowing the appeal, and I am returning the matter to the General Division to reconsider.

[10] The General Division acted unfairly because it accepted what the Commission said about the meaning of the reconsideration decision, but it did not give the Claimant an opportunity to make submissions addressed to that interpretation. In addition, it did not have jurisdiction to consider the issue it decided and it failed to decide the only issue before it.

Preliminary matters

[11] When I began to review this file, I encountered significant difficulty in interpreting the decision that was on appeal to the General Division. I could not be certain of what the Commission decided or reconsidered.

[12] I observed that the Commission’s representations to the General Division acknowledged that the decision was flawed. The Commission advised the General Division of what it had meant to decide. The General Division proceeded to decide the issue in accordance with the Commission’s interpretation.

[13] The manner in which the General Division identified the appeal issues raised issues of fairness and jurisdiction which had not been directly addressed in the submissions received by the Appeal Division from either party.

[14] As a result, I provided the parties with a series of questions, and I asked them to respond through supplemental submissions. Because I had concerns related to how the General Division dismissed the Claimant’s appeal, I wanted to be sure that the Commission had a chance to speak to those concerns. However, I asked both parties to respond because I did not want either of the parties to be surprised if these concerns factored into my decision.

[15] Both the Commission and the Claimant provided supplemental submissions, on July 3, 2025, and July 4, 2025, respectively. (When I refer to the Commission’s position in this appeal, I will attribute that position to the “Commission’s representative,” so that I can distinguish it from the Commission’s earlier actions and representations.)

[16] The Commission’s representative readily concedes that the General Division acted unfairly and that it made errors of jurisdiction. The Claimant responded to my questions by saying that they were too complex and that he did not feel qualified to answer them. Nonetheless, he provided a substantial response in which he made an effort to address the questions. He also directed me to his own concerns with the Commission’s original decision, given that the Commission had guided him through the antedate process.

Issues

[17] The issues in this appeal are:

1. a) Did the General Division make an error of procedural fairness by accepting the Commission’s interpretation of the Commission’s reconsideration letter and proceeding without giving the Claimant an opportunity to respond?
2. b) Did the General Division act outside of its jurisdiction by deciding whether the Claimant’s claim reports, including his claim report for the week of December 17, 2023, could be antedated?
3. c) Did the General Division fail to exercise its jurisdiction:
• when it did not decide whether the Claimant could receive benefits in a benefit period established under an initial claim from his December application?
• when it did not decide if the Claimant was entitled to an antedate of his March 2024 application?
• by failing to consider whether the Commission acted judicially when it did not waive or vary the requirement that the Claimant’s claim reports be filed within three weeks of the week for which benefits are claimed.
4. d) Did the General Division make an error of law by not considering whether to refer the matter back to the Commission to consider a waiver?

Analysis

General legal principles applicable to the appeal

[18] The Appeal Division may only consider errors that fall within one of the following grounds of appeal:

1. a) The General Division hearing process was not fair in some way.
2. 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).
3. c) The General Division made an error of law when making its decision.
4. d) The General Division based its decision on an important error of fact.^{Footnote 2}

Procedural fairness

[19] The General Division made an error of procedural fairness.

[20] The Claimant applied for benefits on December 31, 2023, for the purpose of obtaining benefits from December 17, 2023, through to the end of the school break. He also asked to receive benefits that he had not claimed under the original claim. He had also filed a claim on March 11, 2024, and he asked the Commission to use the December 31, 2023, application as the effective date of his new benefit period—so that he would not have to serve the waiting period twice.

[21] The Commission described the Claimant’s December application as a “renewal application” since he still had unclaimed benefits under his original claim. It noted that it could not “register” his December 31, 2023, claim since he had not filed a claim report for the December 17 week. And the Commission stated that his March 11, 2024, application was an initial claim that established a benefit period effective March 3, 2024.^{Footnote 3}

[22] It is not clear how the Commission viewed the Claimant’s requests for retroactive benefits. Its May 28, 2024, letter to the Claimant described its decision in the following terms:

“Your renewal claim for Employment Insurance benefits cannot start earlier than December 31, 2023, because you did not file your application on time and you did not show good cause for being late.”

[23] The Commission’s reconsideration decision did not help to clarify the issues. It classified the issue as one of “Claim procedure” and stated only that it was maintaining its decision on “this issue.”

[24] In the Commission’s undated submissions received by the General Division on August 22, 2024, it acknowledged errors in its reconsideration decision. It described them as “clerical.” It also offered its own interpretation of what the decision was supposed to be about. The Commission explained that the decision was about whether the Claimant could have a claim report antedated to December 17 (the last week available in the benefit period from his original claim).

[25] The hearing was held in-person on August 27, 2024. However, after the hearing, the General Division was still unclear about how the Commission had handled the Claimant’s request. On September 10, 2024, the General Division asked the Commission why it treated the Claimant’s application as a “renewal instead of a new claim.”^{Footnote 4} The Commission explained that its automated system had not established a “new claim” because the claim report for December 17 was still outstanding on the original claim. The Commission told the General Division that the “contentious issue” was that the Claimant had failed to file his claim report. It said the Claimant’s “antedate request to commence a claim” on an earlier date was not an issue.^{Footnote 5}

[26] The General Division accepted the way the Commission described the decision, as well as its assessment of the contentious issue. It found that the Claimant had delayed filing his claim reports from December 17, 2023, until March 11, 2024, when he filed the claim which was made effective March 3, 2024. The General Division decided that the Claimant was not entitled to an antedate of weekly claim reports because he did not have good cause for filing the reports late.

[27] However, it is not possible to interpret the Commission decision in this manner by reading the text of the decision, or by reading the reconsideration decision which simply “maintained” the original decision. Nor is such an interpretation consistent with the Claimant’s request to the Commission, or the context of that request. It is possible that more was said about this at the hearing, but the Tribunal has no audio recording of the hearing. If it was discussed at all, it is not mentioned in the General Division decision. So, I must assume that the General Division simply adopted the Commission’s interpretation of the decision.

[28] The Claimant’s reconsideration request, and his Notice of Appeal to the General Division, suggest he was not clear on the Commission’s decision. I doubt that the Claimant would have known what exactly he was appealing when he went to the hearing. He could not have known from the Commission’s decision that the General Division would decide that he was not entitled to an antedate of his claim reports under the original claim, but that it would not consider whether he had good cause to antedate his December application, as a new initial claim. He could not have known that it would use the entire delay from December 2023 to March 2024 to find that he did not have good cause for his delay in filing claim reports prior to the December application. It is unlikely he would know whether his request to have his March 2024 claim antedated was a part of the appeal.

[29] The Commission’s representative agrees that it was unfair to the Claimant for the General Division to have accepted the issue as framed by the Commission without giving the Claimant an opportunity to make representations. She recognizes that the Commission had expanded on its particular interpretation of the decision in post-hearing submissions. She allows that there is nothing in the file to suggest that the Claimant was given an opportunity to respond.

[30] I can see that the General Division sent the Claimant a copy of its September 10 request for clarification that it sent to the Commission, and that it also sent the Claimant a copy of the Commission’s response on September 12, 2024, the same day as it received it. However, the General Division did not explain to the Claimant why it was requesting the Commission to explain its decision process, nor did it inform him that he could respond.

[31] I accept that it was unfair to the Claimant for the General Division to have accepted the issues as framed by the Commission without giving the Claimant a fair opportunity to make representations.

[32] At a minimum, the General Division should have clarified the issues before proceeding so that the Claimant could effectively address them. It should have given him a chance to make representations on the question of which issues were properly before it.

The General Division exceeded its jurisdiction by deciding an issue that was not before it

[33] The General Division exceeded its jurisdiction when it decided that the Claimant was not entitled to an antedate of his claim report for the week of December 17, 2023.

[34] I appreciate that the General Division was trying to make sense out of an obscure decision, but the May 28, 2024, decision letter cannot be read as a decision on the Claimant’s entitlement to an antedate of his claim report.

[35] In fact, the Commission’s representative now concedes that the General Division had no jurisdiction to consider this issue. She states that the May 28, 2024, decision is only “evidence that the Commission made a decision about the start date of the initial claim”—which is to say that the benefit period for the new claim could not start earlier than the Claimant’s December 31, 2023, application date.^{Footnote 6}

[36] The decision is silent about whether the Claimant could obtain an antedate of his claim report. As the Commission itself acknowledges, it did not make either an initial or a reconsideration decision about the Claimant’s request to antedate his claim report to December 17, 2023.

[37] As I understand the file, the Commission’s decision was in response to the Claimant’s request for benefits from December 17, and his concern that he did not want to have to serve a waiting period twice. The Commission could have responded to his request with decisions addressing the following issues:

• The Claimant’s entitlement to an antedate of his claim reports under the original claim, so that the Commission would accept a late claim report for December 17, 2023;
• The Claimant’s entitlement to benefits until he returned to work after the Christmas break, based on his new initial claim filed on December 31, 2023, or an antedate of that December claim;
• The Claimant’s entitlement to benefits for the March school break under a benefit period established by the December 31 application (with no second waiting period)—or an antedate of his March 11, 2024, initial claim to December 31, 2023, or even earlier.

[38] The Commission had a single discussion with the Claimant in which it acknowledged his concerns about his missed benefits in December and March. It told the Claimant nothing about its decision or decision intentions except through the May 28 decision letter. And it was unable to reach the Claimant to discuss his reconsideration request.

[39] Again, the Commission’s May 28 letter said that it could not start his December claim earlier than December 31 because he had not filed it on time and did not have good cause for the delay.

[40] The General Division treated this as a decision denying an antedate of the December 17, 2023, claim report. But this was not a decision that the Claimant did not have good cause for the delay in filing claim reports for that period.^{Footnote 7}

[41] The General Division acted outside of its jurisdiction when it decided this issue.

The General Division failed to exercise its jurisdiction

Effect of the December 31, 2023, application

[42] The Commission’s representative concedes that the General Division made another error of jurisdiction because it failed to decide other issues that were before it.

[43] She suggests that the General Division should have decided whether the Claimant’s December 31, 2023, application was an initial or a renewal claim.

[44] I do not accept that the General Division needed to make a decision on whether the December application started an initial claim or a “renewal” claim. These concepts may mean something to the Commission, but there is no “renewal claim” category to be found in the Employment Insurance Act (EI Act).

[45] The December 31, 2023, claim was clearly an initial claim under the law. According to the Commission, the benefit period for the Claimant’s original claim commenced on December 25, 2022.^{Footnote 8} There was no indication that this first benefit period was other than the usual 52 weeks.^{Footnote 9} This means that his December 31, 2023, claim was filed after the first benefit period had ended, so it would have been an initial claim.

[46] The Commission may have treated the Claimant’s application as a “renewal” claim as a matter of internal policy, but the Tribunal cannot make decisions based on the Commission’s policy.

[47] The Commission is correct in the sense that the letter contains a decision about the December application. The May 28 letter denies benefits prior to December 31 in relation to the December application. It may also be read as a denial of an antedate of the December claim on the basis that the Claimant did not have good cause for the delay in making a claim (under section 10(4)).^{Footnote 10}

[48] The General Division failed to exercise its jurisdiction. It did not consider the effect of the December 31, 2023, application or whether it had established a new benefit period as an initial claim.

Antedate of March 2024 claim

[49] The Commission’s representative concedes one final error of jurisdiction. It asserts that the General Division should have decided whether the Claimant was entitled to an antedate of his March 2024 initial claim.

[50] Despite the concession, I do not accept that the General Division made an error of jurisdiction by not deciding on the antedate of the March 2024 initial claim.

[51] Nothing in the file suggests that Commission decided whether the Claimant could antedate the March 2024 claim, or that it intended to decide that issue. The only information to be found in the record related to this question is a single Commission note stating that the Claimant was, “looking to use his December 31, 2023, application to start his new claim—rather than March 3, 2024.” I am not satisfied that the General Division could infer from what the Claimant asked the Commission that the Commission had decided the Claimant was not entitled to an antedate of his claim reports (the first issue in paragraph 33 above).

[52] I found that the General Division exceeded its jurisdiction when it considered whether the Claimant could antedate his claim reports. I found this because the decision itself does not describe this issue, and because there was little else in the record about the Claimant’s request or the Commission’s response. For the same reason, I cannot accept that General Division could have understood the Commission’s May 28 letter to contain a decision antedate of the March 2024.

[53] The General Division did not make an error of jurisdiction by failing to consider whether the Claimant’s March 2024 initial claim should be antedated.

Waiver of the requirement to file claim reports within three weeks

[54] The Claimant argued that the General Division should have decided whether the Commission ought to have waived, or considered waiving, the three-week deadline for filing claim reports (the “waiver issue”).

[55] Section 50(4) of the EI Act says a claim must be filed within a “prescribed” period. Section 26(1) of the Employment Insurance Regulations prescribes the deadline. According to the Regulations, claim reports must be filed within three weeks of the week to which they relate. Section 50(10) of the EI Act permits the Commission can waive the section 50(4) deadline.

[56] The General Division did not make an error of jurisdiction by failing to make a decision on the waiver issue.

[57] An error of jurisdiction is where the General Division fails to make a decision that it is required to make, or where it makes a decision that it is not authorized to make. The General Division is required to consider all the issues that are on appeal. Only the Commission’s reconsideration decisions may be appealed, which means that the General Division can only consider issues that are found in the reconsideration decision.^{Footnote 11} It must reach a decision on the issues that were appealed but it has no jurisdiction to decide any other issues.

[58] The reconsideration decision simply maintained the Commission’s original decision. That means I must look to the original decision to identify the issues that were on appeal. The Commission’s original decision was based on its finding that the claimant failed to show good cause for his delay in claiming benefits, but it did not consider whether it could waive the deadline.

[59] Nothing in the reconsideration file, or elsewhere in the appeal record, suggests that the Claimant asked the Commission to waive the deadline or that the Commission considered whether it should waive it. Nor is there any indication that the Claimant raised the Commission’s waiver power as an issue at the General Division. He did not ask the General Division to find that he should be entitled to a waiver, nor did he ask the General Division to find that the Commission acted improperly by failing to consider a waiver in its discretion. It appears he first raised the issue of waiver in his appeal to the Appeal Division.

[60] The reconsideration decision did not explicitly or implicitly refuse a waiver or refuse to consider a waiver, so the issue was not before the General Division. The General Division did not fail to exercise its discretion by failing to address whether the Commission considered a waiver or whether it used its discretion judicially.

Error of law

[61] In granting leave to appeal, this Tribunal suggested that there may be an argument that the General Division made an error of law in how it interpreted the waiver under section 50(10) of the EI Act. It referred to Von Findenigg, a 1983 decision of the Federal Court of Appeal.^{Footnote 12} The Von Findenigg decision suggested that the matter may be referred back to the Commission when the Commission has not considered a waiver under section 55(10) of the Unemployment Insurance Act, 1971 (UIA). Section 55(10) of the version of the UIA then in effect is essentially the same as section 50(10) of the current EI Act.

[62] I do not accept that the General Division made an error of law in how it interpreted section 50(10) of the EI Act.

[63] To begin with, I have already found that the General Division did not fail to exercise its jurisdiction by not considering whether the Claimant was entitled to a waiver. Neither was it an error of law for it to refuse jurisdiction.

[64] The Von Findenigg decision referenced in the leave to appeal decision confirmed that section 55(10) of the UIA conferred the power to waive the deadline for filing claims on the Commission exclusively.^{Footnote 13} This was also confirmed in other decisions of the Federal Court of Appeal.^{Footnote 14}

[65] So, the question is whether the General Division made an error by not referring the matter back to the Commission to consider a waiver.

[66] The Harbour decision considered the decision in Findenigg, and significantly narrowed its application. It specifically rejected the notion that the Board of Referees must first consider whether a “waiver” is possible before upholding its refusal.^{Footnote 15}

[67] Harbour said that section 55(10), “does not create any duty” (such as a duty to consider a waiver) or “preserve any right.”^{Footnote 16} It noted that the Commission’s power is only a power to waive; not a “power to reinstate a right already lost” (in this case, the loss of entitlement to benefits due to a delay without good cause) or “to remove a legal obstacle to exercising a right.” Harbour considered that the waiver power was a power to waive in advance, the conditions in what is now section 50(10), “rather than to cure a past failure to meet such a condition.” (Emphasis added).

[68] Harbour held that a Claimant’s failure to file claim reports on time was irregular only. The Commission may refuse a weekly claim report that is not submitted within the specified time, but Harbour said that “such refusal may be unwarranted, namely when good cause for delay is shown.” (Emphasis added). In other words, the Commission should consider the claimant’s reasons for the delay before it refused benefits.

[69] The Court rejected the way the Umpire had formulated the issues in the decision it was reviewing. The Umpire had treated the Commission’s review of the Claimant’s reasons for his delay as though the Commission were considering whether to waive the deadline under section 55(10) of the UIA. The Court disagreed with this. It essentially found that the Commission should not have refused the Claimant’s late claim reports because he had good cause for the delay—not because the Commission should have waived the deadline requirements.

[70] More to the point, it stated that the Umpire should not have based her analysis on the Commission’s use of the waiver power because the waiver power was “not meant to offer a means of avoiding the loss of a right to benefit resulting from a failure to report on time when such failure would […] be wholly imputable to the claimant.”^{Footnote 17}

[71] The decision in Harbour suggests that the Commission does not need to consider waiving the deadline requirement, once it has already determined that the Claimant does not have good cause for the delay.

[72] At the time of both Von Findenigg and Harbour, the Unemployment Insurance Act, 1971 had a provision (section 20(4)) which allowed for an antedate for good cause of an initial claim similar to the present section 10(4). However, it did not have a provision similar to the current section 10(5), which allows for an antedate of weekly claim reports.

[73] The Commission is now specifically required by section 10(5) of the EI Act to look at the reasons for the delay before refusing to accept late claims. This means that there is even less purpose in referring the question of waiver to the Commission for its consideration.

[74] So, while the General Division’s decision might have suggested that the Commission consider a waiver, it had no obligation to do so. As far as I can tell, the Claimant may still request that the Commission waive the deadline under section 50(4) of the EI Act.

[75] The General Division did not make an error of law by failing to return the matter to the Commission to consider a waiver.

Remedy

[76] I have the authority to make the decision that the General Division should have made, or I may confirm, rescind, or vary the decision of the General Division. I could also send the matter back to the General Division for reconsideration.^{Footnote 18}

[77] The Commission is requesting that I return the matter to the General Division. The Claimant has said that the Tribunal has more than enough information to decide the appeal. I take from this that he would like me to substitute my decision.

[78] I have decided to return the matter to the General Division for reconsideration.

[79] I have found that the General Division did not have jurisdiction to decide if the Claimant had good cause to antedate his claim reports, because the Commission has not yet decided this question. I likewise would have no jurisdiction to decide that issue.

[80] I have also found that the General Division failed to consider whether the Commission might have paid benefits in relation to the December 31 claim. However, I cannot presume the Claimant has had an opportunity to provide all the relevant evidence—because there is no audio record. If he testified about this at the General Division, I do not have it. It would be unfair for me to substitute my decision without all the evidence.

[81] The General Division will have the opportunity to clarify the issues under appeal with the parties, so that they can provide appropriate submissions and any relevant evidence. If the General Division finds that there are outstanding issues that cannot be resolved through the appeal, it could recommend to the Commission that it address them and provide decisions responsive to his concerns.

[82] As far as the Claimant’s arguments on the Commission’s waiver power, the Commission may wish to explore its waiver power under section 50(10) of the EI Act. If it concludes that it can exercise its waiver power retroactively, it may wish to consider at some point if it would be appropriate to exercise it in the Claimant’s circumstances.

Conclusion

[83] I am allowing the appeal. I am returning the matter to the General Division decision to reconsider its decision.