Employment Insurance (EI)

Decision

[1] The Tribunal grants the extension of time to file the application for leave to appeal, but refuses leave to appeal to the Appeal Division of the Social Security Tribunal.

Introduction

[2] On February 26, 2013, a Board of Referees found that:

• - The Applicant voluntarily left her employment without just cause under sections 29 and 30 of the Employment Insurance Act (the Act).

[3] On April 24, 2013, the Applicant filed an application for leave to appeal with the Appeal Division.

Issue

[4] The Tribunal must decide whether to grant the extension of time to file the application for leave to appeal and whether the appeal has a reasonable chance of success.

The law

[5] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development Act, “an appeal to the Appeal Division may only be brought if leave to appeal is granted” and “the Appeal Division must either grant or refuse leave to appeal.”

[6] Subsection 58(2) of the Department of Employment and Social Development Act provides that “leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.”

Analysis

[7] In accordance with subsection 58(1) of the Department of Employment and Social Development Act, the only grounds of appeal are that:

1. (a) the Board of Referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. (b) the Board of Referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or
3. (c) the Board of Referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

[8] The Tribunal finds that, under the circumstances, the interest of justice favours granting the extension of time to file the Applicant’s application for leave to appeal.

[9] A leave to appeal proceeding is a preliminary step to a hearing on the merits. It is a first hurdle for the Applicant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the leave stage, the Applicant does not have to prove the case.

[10] The Tribunal will grant leave to appeal if the Applicant shows that one of the above‑mentioned grounds of appeal has a reasonable chance of success.

[11] This means that the Tribunal must be in a position to determine, in accordance with subsection 58(1) of the Department of Employment and Social Development Act, whether there is a question of law, fact or jurisdiction whose response might justify setting aside the decision under review.

[12] Given the foregoing, does the Applicant’s appeal have a reasonable chance of success?

[13] In her application for leave to appeal, the Applicant argued that the Board of Referees failed to take into account the fact that the Respondent continued to issue her benefits after being notified that she left voluntarily.

[14] The Federal Court of Appeal case law has clearly established that if the Applicant received an amount to which she was not entitled, a mistake made by the Respondent does not excuse her from having to repay it – Lanuzo v. Canada (AG), 2005 FCA 324.

[15] Therefore, the Tribunal concludes that the appeal has no reasonable chance of success.

Conclusion

[16] The Tribunal grants the extension of time to file the application for leave to appeal, but refuses leave to appeal to the Appeal Division of the Social Security Tribunal.