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Statutory Interpretation - "Representation". Canada (Attorney General) v. Emamifar [query: any application to ODSP-OW?]
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.
The court, while considering EIA s.52(5) ['Extended time to reconsider claim'] - which extends time "to reconsider the claim" if "a false or misleading statement or representation has been made in connection with" it - further considers the difference between an act of 'commission' (positive action) or 'omission' (non-action) (here complicated by an earlier administrative "Exemption Declaration"), and whether such an act be made knowingly.[14] The General Division noted that under subsections 52(1) and (5) of the Act, the Commission has 36 months after benefits have been paid to reconsider a claim, or 72 months if it is of the opinion that a claimant has made a false or misleading statement or representation. It adopted the reasoning of the Appeal Division in J. S. v. Canada Employment Insurance Commission, 2017 SSTADEI 431 at paragraph 13 [J. S.] that a "“representation requires action, whether in verbal, written, visual, or other form”", and does not include an omission, such as a failure to report. It found that Ms. Emamifar had "“made no statements or representations about her return to work and earnings because she was exempted from completing the reports where she would otherwise have done so”" (GD Decision at para. 39). Accordingly, the General Division concluded that, since the Commission could not establish that Ms. Emamifar had made false or misleading statements, it had no authority to extend the period to reconsider her claim for benefits.
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[17] The Commission submitted that Ms. Emamifar had agreed to the responsibilities set out in the online application, including the obligation to report all her earnings in the week they were earned. The Commission further submitted that, because Ms. Emamifar had failed to comply with her reporting obligations when she returned to work early, the Commission had been misled into paying her benefits and it was reasonable for the Commission to come to the opinion that her failure to inform was a false or misleading statement or representation (Decision at para. 38).
[18] The Appeal Division noted that in faulting Ms. Emamifar for failing to report to the Commission her return to work and her earnings, the Commission was describing an omission. The Appeal Division decided that failure to report information (an omission) did not constitute a statement or representation for the purpose of subsection 52(5), based largely on an analysis of the text of subsection 52(5), a comparison of that provision with paragraph 38(1)(a) of the Act, and the reasoning set out in J. S. and in a decision of the General Division in B. S. v. Canada Employment Insurance Commission, 2024 SST 469 [B. S.].
[19] While the Appeal Division acknowledged that Ms. Emamifar attested to and agreed to the responsibilities set out in the online application, it "“[saw] no evidence that the information she provided in her application was false or misleading as it was accurate and truthful at the time she made her application”" (Decision at para. 59). The Appeal Division adopted the interpretation of "“representation”" in J. S., requiring a verbal, written, visual or other form of action. Accordingly, it concluded that subsection 52(5) did not extend to omissions. Considering that Ms. Emamifar was exempt from filing biweekly reports, the Appeal Division found that she had taken no action and thus made no representation. Therefore, it concluded, the Commission could not extend the reconsideration period from 36 to 72 months and reconsider Ms. Emamifar’s claim.
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A. The Appeal Division unreasonably concluded that Ms. Emamifar made no statements or representations in her application
[24] The Attorney General submits that the Appeal Division unreasonably concluded that the information, agreements and attestations contained in Ms. Emamifar’s online application for EI benefits were not statements or representations.
[25] I disagree. In my view, on a fair reading of the reasons, the Appeal Division considered the information supplied by Ms. Emamifar in her online application, including her responses agreeing to the attestation and statement of responsibilities, to be a statement or representation within the meaning of subsection 52(5), because it turned its mind to whether that information could be false or misleading (Decision at para. 59). The Appeal Division did find that there was "“no evidence that [Ms. Emamifar] made ""any statement or representation to the Commission at all”" (Decision at para. 57, emphasis in the original). However, read in context, this can only be understood to refer to the period after she filed her online application during which, due to the reporting exemption, she made no biweekly reports that would have constituted statements or representations.
B. The Appeal Division unreasonably held that there was no evidence of a false or misleading statement or representation
[26] The Attorney General submits that it was unreasonable for the Appeal Division to conclude that it saw "“no evidence that the information [Ms. Emamifar] provided in her application was false or misleading as it was accurate and truthful at the time she made her application”" (Decision at para. 59). The Attorney General notes that Ms. Emamifar said she would return to work on April 3, 2021, agreed to inform the Commission if she worked or received earnings, and agreed that it was her responsibility to report employment and earnings. In the Attorney General’s view, "“if a person says they will do something and then fails to do so, that is a reasonable basis to form the opinion that a false or misleading statement has been made.”" Accordingly, the Attorney General argues, it was unreasonable for the Appeal Division to find that Ms. Emamifar’s statements were true and sincere at the time they were made and to ignore that she later failed to do what she said she would do, especially considering that she continued to receive benefits while working. In the Attorney General’s view, the Appeal Division’s conclusion means that, to establish a false or misleading statement or representation, the Commission would have to prove that Ms. Emamifar knew that she would not follow through on her undertakings when applying for benefits. Such a result would conflict with decisions of this Court that false or misleading statements need not be made knowingly under the reconsideration provision.
[27] As observed by the Attorney General, this Court interpreted the Commission’s authority to extend the period to reconsider a claim for benefits in Canada (Attorney General) v. Dussault, 2003 FCA 372 [Dussault]. Mr. Dussault, a former insurance salesman, had applied for and obtained regular EI benefits when he became unemployed. Following an exchange of information with the Canada Customs and Revenue Agency, the Commission discovered that Mr. Dussault, on his claims for benefits, had failed to declare self-employed income as earnings. The Commission formed the opinion that Mr. Dussault had made false or misleading representations by not reporting these earnings. An Umpire decided that the Commission could not rely on the predecessor to subsection 52(5) of the Act, because the Commission had not established that the false or misleading representation led to a penalty under the predecessor to section 38 of the Act or that it had been made knowingly. This Court rejected the requirement that a false or misleading representation be made knowingly as follows:[11] …[T]here is no connection between [the predecessor to section 38 of the Act], which requires proof that the false statement was made knowingly, and [the predecessor to subsection 52(5)], which contains no such requirement.
[12] In Langelier, our colleague Mr. Justice Décary, in paragraph 5, clearly rejects the imposition of any such obligation:With respect, I consider that the Umpire misdirected himself when he imposed on the Commission a burden pursuant to s. [52(5)] of proving [Translation] “that the claimant knowingly made false statements”. That is actually the burden imposed by s. [38], dealing with penalties. All Parliament requires in s. [52(5)] is that “in the opinion of the Commission, a false or misleading statement… has been made”... Of course, in order to arrive at this conclusion the Commission must be reasonably satisfied that “a false or misleading statement or representation has been made in connection with a claim”. In other words, the mere existence or presence of a false or misleading statement suffices, to the degree that the Commission is reasonably satisfied of this fact, to trigger the application of subsection [52(5)] without the need to find intention in the person making the statement. Its existence is inferred objectively from the facts. In the case at bar, it is unambiguous that the respondent did not report, or concealed, for the period during which he was receiving benefits, the income from work on his own account.
[13] The difference in treatment between section [38] and subsection [52(5)] is explained by their respective purposes. Section [38] is intended to punish deviant behaviour and, needless to say, requires proof of such deviance. That some proof is required is indicated by the use of the word “knew”. Subsection [52(5)], on the other hand, is simply intended to recover the money that should not have been paid and would not have been paid absent the false or misleading statement or, to state it in the positive form with the appropriate antonyms, if the statement had been true or sincere. It may also be used to allow the payment by the Commission of additional benefits or benefits previously denied: Langelier, supra, paragraph 8.
(Dussault at paras. 11‒13, emphasis in paragraph 12 added) [28] It is important to place Dussault in its proper factual context. At the hearing before this Court, counsel for the Attorney General acknowledged that reporting exemptions are only available for special benefits under the Act, such as maternity or parental benefits. The exemptions are not available for ordinary EI benefits, such as those at play in Dussault. Accordingly, Mr. Dussault would have been subject to the regular biweekly reporting requirement and would have reported, for each two-week period, that he had not received any earnings, when the evidence before the Commission was that he had received self-employed income. It is in that sense that the existence of a false or misleading statement could be "“inferred objectively from the facts.”"
[29] The Appeal Division acknowledged that Dussault had confirmed there is no requirement, under subsection 52(5) of the Act, that a false or misleading statement or representation be made knowingly (Decision at para. 46) and understood that the Commission "“only has to be of the opinion that… a false or misleading statement or representation was made”" (Decision at para. 45). It nevertheless found, for the reasons reproduced below, that Ms. Emamifar did not make any false or misleading statements or representations:[54] Generally speaking, when a person applies for benefits and a benefit period is established, they are required to submit biweekly reports. These reports ask specific questions about earnings, availability and other things. When a person applies for maternity and parental benefits, they can choose to be exempt from filing biweekly reports (it is assumed that they are not working while caring for a child). They indicate their choice to be exempt from filing biweekly reports in their application form.
[55] Following that, there is a lengthy section in the application form that identifies “rights & responsibilities,” and the person must attest by signing the application form that they will “report all employment,” “accurately report all employment earnings” and to inform Service Canada immediately (among other things listed).
[56] I don’t accept the Commission’s position that the Claimant made false or misleading statements or representations because she didn’t follow thru [sic] with her responsibilities to report that information to the Commission. And I don’t accept that the Claimant “misled” the Commission into paying her benefits either.
[57] There is no evidence that the Claimant made any statement or representation to the Commission at all. The Claimant was exempt from filing her biweekly reports, so the Commission can’t rely on any statements or representations she made in a biweekly report in this case.
[58] I see no other evidence in the record that shows the Claimant made any other statements or representations to the Commission.
[59] I acknowledge that the Claimant attested to and agreed to her responsibilities when she applied for benefits, but I see no evidence that the information she provided in her application was false or misleading as it was accurate and truthful at the time she made her application. It’s also consistent with the information the employer recorded on her Record of Employment around the time she applied for benefits.
[60] I am persuaded by the Appeal Division’s decision in J.S. because it explains that to make a representation, it requires some kind of action made, such as verbal, written, visual or other form. The Claimant in this case didn’t take any action, so I can’t find that she made a representation.
[61] I’ve also considered the General Division’s decision in B.S. that says the Commission can’t extend the period to 72 months for any other reason, such as failing to report information.
[62] I agree that the Claimant should have reported that she returned to work and got wages, but a failure to report information to the Commission doesn’t amount to making a false or misleading statements or representations in connection with a claim.
[63] To conclude, s.52(5) does not include omissions, so the Commission can’t extend the period to 72 months to reconsider the claim in this particular case.
(Decision, emphasis in paragraph 54 added) [30] It is clear from its reasons that the Appeal Division considered that the statements made by Ms. Emamifar in her online application differed from responses to "“specific questions about earnings, availability and other things”" posed in typical biweekly reports. Reading its reasons contextually and in light of prior decisions of the SST (Vavilov at para. 94), I note that the Appeal Division’s approach is consistent with that taken by the General Division in B. S., a case raising similar facts that the Appeal Division referred to in its reasons. There, the General Division examined whether the Commission could reconsider a claim for maternity benefits after the expiry of the 36-month window for reconsideration on the basis that the claimant, who was exempted from reporting, had made a false and misleading statement by failing to report her earnings. The General Division held that "“for an appellant to make a false or misleading statement or representation, it must come from answering a direct question related to their situation in a way that isn’t truthful or accurate”" (B. S. at para. 45, emphasis added).
[31] According to the Appeal Division (Decision at para. 54) and the General Division (B. S. at para. 45), the statements made by a claimant in response to biweekly reports relate to facts regarding the claimant’s situation at or before the time the statements are made, including whether they are working, have earned income or are available to work. Conversely, both Divisions recognized that the statements in the exemption declaration and rights and responsibilities section of the online application for EI benefits relate to the claimant’s present intention to carry out certain actions in the future (Decision at paras. 56 and 59; B. S. at para. 48). Indeed, in B. S., the General Division observed that "“when the [claimant] agreed to the exemption declaration is relevant”" to the subsection 52(5) analysis (at para. 48, emphasis in the original).
[32] The Appeal Division’s view that there was no evidence Ms. Emamifar provided false or misleading information in her application must be considered in light of the nature of that information. The information consisted in statements setting out her then (i.e., "“at the time she made her application”") present intent to return to work at a specific future date, report future earnings if they occurred and report a return to work in the future. This information is unlike that demanded by the specific questions in a biweekly report about "“earnings, availability and other things”" in the course of the two-week period.
[33] In my view, the Appeal Division’s reasons demonstrate that it grasped the Commission’s argument that Ms. Emamifar’s failure to follow through on her stated intention showed that she had made false or misleading statements (Decision at para. 56). They also show that the Appeal Division concluded that the fact Ms. Emamifar failed to carry out her expressed intention did not, in itself, establish that she did not actually possess that intention at the time she submitted her application.
[34] In light of my previous discussion of Dussault, I disagree with the Attorney General that the Appeal Division’s decision is inconsistent with the Court’s holding that it is unnecessary to find intention when assessing whether a false or misleading statement might exist. Dussault held that, where a claimant states that he did not receive earnings during a two-week period, the existence of a false or misleading statement is inferred objectively from the facts—in that case, the evidence that he had received amounts over the relevant period.
[35] This Court’s views on the role of intention originated in Canada (Attorney General) v. Langelier, 2002 FCA 157 [Langelier], on which Dussault relies. There, to show he had accumulated the ten weeks of insurable employment required to create a benefit period, Mr. Langelier had attached to his EI application a ROE prepared by a company for a week’s work as a "“fisherman’s helper”". Relying on a decision by Revenue Canada that there was no proof of payment establishing that Mr. Langelier had been paid for the week in question, the Commission claimed that the ROE was false. Mr. Langelier argued he was unaware that the ROE was not accurate, and that Revenue Canada had rendered its decision without his knowledge or participation. The Umpire found that, in these circumstances, the Commission had not established that Mr. Langelier had knowingly made false or misleading statements.
[36] While this Court held that the Umpire had misdirected himself in requiring that the Commission prove that Mr. Langelier knowingly made false statements, it decided that the Umpire had not erred in finding that it was patently unreasonable for the Commission and Board of Referees to hold that there was a false statement solely based on Revenue Canada’s decision:[A] decision which, as in the case at bar, is based on the absence of any proof of payment does not by itself support a conclusion that no payment was made and that it is false to say that there was a payment.
(Langelier at para. 18, emphasis added) [37] In agreeing with the Umpire, Justice Décary, writing for this Court, provided valuable insight into the nature of the evidence required to establish the existence of a false or misleading statement or representation:It should be borne in mind that [s. 52(5)] is part of an “exceptional [system], which is a departure from the ordinary law” and must be “strictly construed” (Laforest v. Canada (Attorney General) (1988), 97 N.R. 95 (F.C.A.), per Lacombe J., para. 22). Accordingly, the burden of proof on the Commission when it wishes to go back more than three years to claim reimbursement of an overpayment from a claimant is not a light one. As indicated by the case at bar, the consequences suffered by a claimant may be significant. In circumstances like these, the Commission cannot simply rely on a Revenue Canada decision rendered without the claimant’s knowledge, based on such a vague allegation as [Translation] “no proof of payment” and giving reasons as brief as they were vague.
(Langelier at para. 17) [38] In Dussault, it could be objectively inferred that the claimant had made a false or misleading statement regarding his lack of earnings, because the evidence showed that he was receiving self-employed income at the same time as he declared that he was not. In Langelier, however, the existence of a false or misleading statement could not be objectively inferred from the evidence: Revenue Canada’s inability to find proof that the claimant had been paid, in a proceeding where the claimant could not participate, could not in itself contradict his statement of fact that he had been paid for a week’s work. It follows that the nature of the evidence that is sufficient to provide the Commission with a reasonable basis to form the opinion that a false or misleading statement or representation has been made may vary with the circumstances, including whether the statement made was one of fact or of intention.
[39] In the case at bar, the Appeal Division essentially concluded that the existence of a false or misleading statement could not be objectively inferred from evidence that Ms. Emamifar had not followed through on her stated intention, because that evidence did not contradict the statement made in her application: that her intent at the time she completed the application was to return to work on a certain date, report a return to work and report any earnings. In other words, the Appeal Division decided that where a claimant makes a statement of intention, it can only be objectively inferred that that statement is false or misleading where there is evidence that the claimant did not in fact hold that intention. In addition to noting the absence of evidence supporting the existence of a false or misleading statement, the Appeal Division observed that the record corroborated its conclusion that Ms. Emamifar had been truthful when she completed her statement of intention: consistent with that statement, her employer had issued a ROE with April 2, 2021, as her expected date of recall. I note also that the record discloses that Ms. Emamifar’s family faced an unexpected circumstance when her spouse was laid off during the COVID pandemic, prompting her premature return to work. I therefore find nothing unreasonable in the Appeal Division’s conclusion that the fact Ms. Emamifar failed to carry through on her stated intention to return to work or to report earnings was not evidence that she did not in fact hold that intention when she stated it.
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