In Puig v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismisses a judicial review of "a decision of the Appeal Division of the Social Security Tribunal" regarding EI.
Here the court considers the novel issue of whether discretion can be exercised properly if the decision-maker 'doesn't know that they are doing it' (they can):
[36] Regarding Mr. Puig’s second argument, that the Commission could not exercise its discretion judicially if it did not know it was doing so, I am not persuaded that the Appeal Division committed a reviewable error. It is not inconsistent for the Appeal Division to conclude that the Commission judicially exercised a discretion that it did not know it was exercising, provided that the underlying discretionary analysis is conducted, even if it is not expressly recognized as an exercise of discretion. The Appeal Division found that there was no evidence that the Commission considered irrelevant factors, ignored relevant ones or acted in bad faith in deciding to verify Mr. Puig’s entitlement to benefits. The Commission had acted on information calling into question Mr. Puig’s availability, as he was attending a program to which he was not referred by the Commission.
[37] The fact that the Commission does not expressly designate this analysis as an exercise of discretion does not change the fact that this analysis addresses what a discretionary analysis would address. Thus, even if Mr. Puig is correct in stating that the Commission did not know it was exercising its discretion, it remains that he has not demonstrated that the Commission’s conclusion is unreasonable.
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