Employment Insurance (EI)

Decision

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

Introduction

[2] On May 6, 2013, a Board of Referees found that:

• - The Applicant lost his employment by reason of his own misconduct under sections 29 and 30 of the Employment Insurance Act (the Act).

[3] On May 28, 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 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] 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.

[9] The Tribunal will grant leave to appeal if the Applicant shows that one of the aforementioned 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] In his application for leave to appeal, the Applicant maintains that he was unable to attend the Board of Referees’ hearing because he was ill. He therefore raises the issue of natural justice.

[13] The Tribunal also notes from reading the Board of Referees’ hearing that there could be a legal issue regarding a quorum of the Board.

[14] Therefore, the Tribunal concludes that the appeal has a reasonable chance of success.

Conclusion

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