Emamifar – Federal Court of Appeal finds that a failure to fulfil a commitment to report a return to work while collecting mat leave EI benefits was not a “misrepresentation”

After providing in s. 52(1) of the Employment Insurance Act for the right of the Canada Employment Commission to reconsider an EI claim within 36 months of the payment of the related benefits, s. 52(5) extends this reconsideration period:

If, in the opinion of the Commission, a false or misleading statement or representation has been made in connection with a claim, the Commission has 72 months within which to reconsider the claim.

The applicant elected to take mat leave of 18 rather than 12 months. In her application, in order to be relieved of the obligation to provide bi-weekly reports (essentially certifying that she was still not working), she provided the requested up-front certification that she would inform the Commission if her work resumed during the 18 months - and, indeed, she expected to be on mat leave for the full 18 months. However, at the 12-month point, her circumstances had changed and she recommenced working, without informing the Commission. She considered her receipt over 18 months of benefits, approximating what she effectively could otherwise have elected to receive over 12 months, to be fair.

Heckman JA found no reviewable error in the finding below that the applicant’s failure (referenced as an “omission”) to inform the Commission did not amount to a “representation” to which s. 52(5) could apply. Accordingly, the Commission was out of time in trying to recoup, beyond the 36-month point, the last six months of benefits.

This case is consistent with the jurisprudence on ITA s. 152(4)(a)(i) that the identification of a misrepresentation attributable to neglect etc. must be made in relation to the state of affairs at the time of the return-filing. (See, e.g., Vachon, at para. 7.)

H/t Joel Nitikman for noticing this EI case.

Neal Armstrong. Summary of Canada (Attorney General) v. Emamifar, 2026 FCA 141 under s. 152(4)(a)(i) and Statutory Interpretation – Implied Exclusion.