Employment Insurance (EI)

Decision

[1] The Tribunal finds that the appeal has no reasonable chance of success; therefore the appeal is summarily dismissed.

Introduction

[2] On October 12^th, 2012, the Appellant, a laboratory technician, voluntarily left his Calgary employment to relocate with his spouse, who had obtained work in Nanaimo, British Columbia. He applied for and qualified for 36 weeks of regular benefits starting on October 13^th, 2012. Seven months later, as a resident of Nanaimo the Appellant requested reconsideration on the basis that the economic region of Calgary should not have been used for the benefit period calculation. The Canada Employment Insurance Commission (CEIC) denied his reconsideration request. Notified of the Tribunal's intention to summarily dismiss his appeal, the Appellant was given a 30-day window of opportunity to make submission. The Tribunal did not receive any additional submission by the December 27^th, 2013 deadline.

Issue

[3] The Tribunal must decide whether the appeal should be summarily dismissed.

The law

[4] Subsection 53(1) of the Department of Human Resources and Skills Development Act (DHRSD Act) states that the General Division must summarily dismiss an appeal if it is satisfied that it has no reasonable chance of success.

[5] Section 22 of the Social Security Tribunal Regulations states that before summarily dismissing an appeal, the General Division must give notice in writing to the Appellant and allow the Appellant a reasonable period of time to make submissions.

[6] According to subsection 10(1) of the Employment Insurance Act (EI Act), a benefit period begins on the later of: the Sunday of the week in which the interruption of earnings occurs; and the Sunday of the week in which the initial claim for benefits is made.

[7] According to subsection 12(2) of the EI Act, the maximum number of weeks for which benefits may be paid in a benefit period is determined in accordance with the table in Schedule 1. Schedule 1 is a reference showing the regional rate of unemployment that applies to the claimant, and the number of hours of insurable employment needed of the claimant in their qualifying period.

[8] In addition, subsection 17(1) of the Employment Insurance Regulations (Regulations) explains the regional rate of unemployment that applies to a claimant, is the average of the seasonally adjusted monthly rates of unemployment for the last three-month period for which statistics were produced (by Statistics Canada) that precedes the week of the start of the benefit period. Furthermore, 17 (1)(a) of the Regulations clarifies that the region to be used for the purposes of benefit calculation is the region in which the claimant was ordinarily resident in that week.

Evidence

[9] The Appellant, a Calgary laboratory technician, left his position on October 12, 2012 to follow his spouse to Nanaimo, British Columbia. Being a first time applicant, he contacted the CEIC several times in order to fulfill his obligations of an Employment Insurance recipient. Upon employment termination he immediately applied for benefits, as instructed, on October 13th, 2012. A benefit period commencement date of October 14^th, 2012 was established. He became entitled to 36 weeks of benefits based on the Economic Region of Calgary.

[10] At the time of application, the unemployment rate and benefit table used for benefit period calculation was the 2000 EI Economic Region of Calgary (for the period of October 07 to November 03, 2012). The table showed an unemployment rate of 4.9%, the number of insured hours required to qualify for regular benefits was 700, and the minimum number of week payable for regular benefits was 14, while the maximum was 36 weeks.

[11] A specific date is not indicated however, he updated his new address with the CEIC in October 2012. He and his family did not take possession of their new Nanaimo home until November 02, 2012. Seven months later as a resident of Nanaimo, the Appellant filed a reconsideration request on the basis that the Economic Region used to calculate his benefit period was incorrect. The reconsideration request was also sent to the Minister of Labor, Minister of Human Resources, and the Member of the Legislative Assembly for Nanaimo.

[12] For the economic region of southern coastal British Columbia (2000), in the period of October 07, 2012 to November 03, 2012, the unemployment rate was 8.1; the number of insured hours required to qualify for regular benefits was 595; and the maximum number of weeks payable for regular benefits was 42.

[13] Frustrated with the lengthy reconsideration process, he contacted his Member of Parliament, Jean Crowley. Several ministerial inquiries in relation to the status of the file were sent to the CEIC. His request for reconsideration was denied.

Submissions

[14] The Appellant submitted that:

1. a) His decision-making autonomy was comprised because he had applied for benefits based on CEIC misinformation. Specifically, he was not informed about how benefit periods were calculated using the regional rate of unemployment.
2. b) Since his entire claim was based on the relocation of his spouse, had he waited until after his relocation to apply, he would have qualified using the Nanaimo Economic Region.
3. c) The CEIC client delivery services were less than ideal.

[15] The Respondent submitted that:

1. a) The application date is the trigger to set the regional rate of unemployment. When the Appellant applied he was a resident of Calgary.
2. b) The economic region used for benefit period calculation was the region where a person normally resides during the week that the benefit period commences.
3. c) The criterion is strictly specified in the legislation. Thus the CEIC does not have any discretion to apply the law differently to accommodate specific cases.
4. d) Incorrect information cannot provide an exemption form the application of the legislation.
5. e) The Commission cannot change the law.

Analysis

[16] Subsection 53(1) of the DHRSD Act requires that an appeal be summarily dismissed if the General Division is satisfied that the appeal had no reasonable chance of success. While "no reasonable chance of success" has not been defined for the purposes of the DHRSD Act, it has been interpreted by the courts in other contexts.

[17] The Supreme Court of Canada, in examining the legal test to be applied on motions to strike third party notices, purports if the facts are plain, obvious, assuming the facts pleaded are true, and the pleading discloses no reasonable cause of action then the appeal should be dismissed (R. v. Imperial Tobacco Canada Ltd, 2011 SCC paragraph 17).

[18] In this case the Appellant, a resident of Calgary in the week preceding his claim for benefits, had a benefit period commencement date established on Sunday, October 14, 2012. The regional rate of unemployment was calculated according to the Economic Region of Calgary for the period of October 07 to November 03, 2012. The table showed an unemployment rate of 4.9%. Thus the maximum number of weeks of regular benefits was calculated as being 36 weeks. Paragraph 17(1)(a) of the Regulations clearly specified that the region to be used for the purposes of benefit calculation is the region in which the claimant was ordinarily resident in that week.

[19] It is undisputed that the Appellant was a Calgary resident when he submitted his claim. Yet, he argues that if the CEIC had been forthright about how the benefit period would be calculated, he would have waited to establish his claim after his relocation to Nanaimo. He also noted that since his claim was based entirely on the fact that he followed his spouse to Nanaimo that he should be entitled to the Nanaimo regional rate of unemployment. However the Appellant's arguments do not change the fact that at the time of the benefit period calculation and commencement, he was a Calgary resident.

[20] The Tribunal is bound by the provision of the Employment Insurance Act and Regulations, and does not have any authority to vary the legal requirements set out in the law. While accepting the facts pleaded as true, the Appellant's claim has failed to demonstrate a reasonable chance of success.

Conclusion

[21] The appeal is summarily dismissed.