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EI - Commision Reconsideration. Detre v. Canada (Attorney General) [when recon granted administratively and new issue arises re benefit quantum]
In Detre v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against an order "which dismissed his application for judicial review due to mootness" where "the underlying decisions of the Canada Employment Insurance Commission (Commission) finding that Mr. Detre was not entitled to Employment Insurance (EI) benefits had since been reconsidered in his favour".
Here the court clarifies the review route when an earlier eligibility case is resolved in favour of the appellant on administrative reconsideration, and a later quantum of benefits issue arises - albeit that the eligibility issue has progressed to the Federal Court system:[1] Mr. Detre is appealing an order of the Federal Court dated February 21st, 2025 (order in file T-2187-24) which dismissed his application for judicial review due to mootness. The Federal Court judge determined the application was moot, as the underlying decisions of the Canada Employment Insurance Commission (Commission) finding that Mr. Detre was not entitled to Employment Insurance (EI) benefits had since been reconsidered in his favour. He has since received funds for both of his EI claims.
[2] Mr. Detre now before us raises an issue arising from the reconsideration decisions, specifically, that the Commission made a calculation error resulting in him having only obtained 87% of the benefits to which he believes he was entitled. While I can understand why Mr. Detre would wish to raise this issue in the context of his existing application, that is not how matters proceed. The matter is moot given that the decisions finding that he was not entitled to benefits have since been reconsidered in his favour. The reconsideration decisions are separate decisions that are not the subject of the present proceedings. Ultimately, the issue remaining between the parties is an issue of calculation, and as such it is not our role nor the role of the Federal Court to resolve that issue in the context of the present proceedings.
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[8] Mr. Detre pleads that, given his prior experience with the Commission and the difficulties he encountered over the span of several years, it is just and fair that this Court utilize its plenary powers to address the alleged error in the calculation of benefits arising from the reconsideration decisions. I reiterate, however, that the reconsideration decisions are not the subject of these proceedings. It is settled law that a litigant must exhaust all adequate remedial recourses in the administrative process before filing an application for judicial review with the courts: C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61 (C.B. Powell) at para. 30. Justice David Stratas was clear: "“absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course”": C.B. Powell at para. 31.
[9] Mr. Detre, should he wish to, must therefore follow the administrative process and must seek redetermination of the calculation. The parties agree that Mr. Detre is now out of time to do so, however discretion exists to extend the delay. In this respect, I would hope that in the present circumstances, the Commission would give careful consideration to Mr. Detre’s reasons for the delay, his difficult personal circumstances, and his success in finally obtaining benefits. While the sum at issue may not be large in the grand scheme, I am very mindful that it is certainly a meaningful amount to Mr. Detre. . Mendioro v. Canada (Attorney General)
In Mendioro v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal considered EIA s.52(5) ['Extended time to reconsider claim']:[5] With regard to the Commission’s delay in seeking repayment, the SST-AD left undisturbed the conclusion of the SST-GD that the Commission was entitled to reconsider Ms. Mendioro’s eligibility for EI-ERB because an extended reconsideration period of 72 months applied. This extended period was based on the Commission’s opinion that Ms. Mendioro had made false or misleading statements in connection with her EI-ERB claim (see subsection 52(5) of the Employment Insurance Act, S.C. 1996, c. 23 (the Act)). We find no reason to doubt this finding or the applicability of the extended reconsideration period in this case. In our view, the Commission did not wait too long to reconsider Ms. Mendioro’s eligibility for EI-ERB. . Canada (Attorney General) v. Emamifar
In Canada (Attorney General) v. Emamifar (Fed CA, 2026) the Federal Court of Appeal dismissed the AG's JR, this brought when the Social Security Tribunal (SST) "Appeal Division decided that the Canada Employment Insurance Commission (Commission) could not reconsider [a] claim for parental benefits under the Employment Insurance Act ... more than 36 months after those benefits had last been paid to her", and thus upheld the respondent's claim.
Here the court considers the difference between the EI Commission issuing a penalty [under EIA s.38(1)(a) 'Penalty for claimants, etc.'], and of a time-extended 'reconsideration' of a claim [under EIA s.52(5) 'Extended time to reconsider claim']:[1] The applicant, the Attorney General of Canada, seeks judicial review of the decision of the Appeal Division of the Social Security Tribunal (SST) in Canada Employment Insurance Commission v. Z. E., 2025 SST 855 (the Decision). The Appeal Division decided that the Canada Employment Insurance Commission (Commission) could not reconsider Ms. Zahra Emamifar’s claim for parental benefits under the Employment Insurance Act, S.C. 1996, c. 23 (the Act) more than 36 months after those benefits had last been paid to her. The Commission may only extend the reconsideration period beyond 36 months to 72 months where it is of the opinion that a false or misleading statement or representation has been made in connection with the claim: subsection 52(5) of the Act. ....
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[13] The General Division allowed Ms. Emamifar’s appeal (Z. E. v. Canada Employment Insurance Commission, 2025 SST 856 (GD Decision)). It found that the Commission had relied on paragraph 38(1)(a) of the Act to reconsider her claim. That provision empowers the Commission to impose a penalty on a claimant in certain circumstances, including where the claimant made a representation that the claimant knew was false or misleading, or knowingly failed to declare earnings for a period in which the claimant claimed benefits. As the Appeal Division later recognized in the Decision, the Commission did not impose a penalty on Ms. Emamifar.
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[16] The Appeal Division agreed with the Commission that it had not imposed a penalty on Ms. Emamifar, and that the General Division had thus erred in concluding that the Commission had relied on paragraph 38(1)(a) of the Act to extend the period for reconsideration of Ms. Emamifar’s claim to 72 months. Rather, the authority to extend the reconsideration period beyond 36 months is in subsection 52(5) of the Act. Having found an error of law, the Appeal Division decided to substitute its own decision for that of the General Division rather than sending the file back.
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[16] The Appeal Division agreed with the Commission that it had not imposed a penalty on Ms. Emamifar, and that the General Division had thus erred in concluding that the Commission had relied on paragraph 38(1)(a) of the Act to extend the period for reconsideration of Ms. Emamifar’s claim to 72 months. Rather, the authority to extend the reconsideration period beyond 36 months is in subsection 52(5) of the Act. Having found an error of law, the Appeal Division decided to substitute its own decision for that of the General Division rather than sending the file back.
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