Employment Insurance (EI)

Decision

[1] The Tribunal grants leave to appeal to the Appeal Division of the Social Security Tribunal.

Introduction

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

1. - The Applicant had voluntarily left her employment without just cause pursuant to section 29 and 30 of the Employment Insurance Act (the Act).

[3] On May 16, 2013, the Applicant filed an application for leave to appeal with the Appeal Division.

Issue

[4] The Tribunal must decide 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 section 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] A leave to appeal proceeding is a preliminary step to a hearing on the merits. It is a first, and lower, hurdle for the Applicant to meet 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 his or her case.

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

[10] 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.

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

[12] The Applicant argues that the Board of Referees erred by analyzing the issue in this case from the viewpoint of good cause rather than just cause and the “only reasonable alternative” test. Moreover, according to her, the Board of Referees limited its analysis to the reasons set out in subsection 29(c) of the Act, which precedents have determined constitutes an error of law.

[13] She also argues that, if the Board of Referees decided to prefer doubtful and incomplete indirect evidence to her direct testimony, it must explain why. In order to comply with the requirements of subsection 114(3) of the Act, this vital information must be included in the Board of Referees’ decision. Finally, the Applicant maintains   that the Board of Referees erred in law in its decision by requiring that the claimant have a guarantee of employment.

[14] After reviewing the appeal docket, the Board of Referees’ decision and the arguments made in support of the application for leave to appeal, the Tribunal concludes that the appeal has a reasonable chance of success. The Applicant raised a number of questions of fact and law whose response might justify setting aside the decision under review.

Conclusion

[15] Leave to appeal is granted.