Employment Insurance (EI)

Decision

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

Introduction

[2] On June 12, 2013, a Board of Referees found that:

• - The Respondent accumulated enough hours of insurable employment to be entitled to receive Employment Insurance benefits under section 7 of the Employment Insurance Act (the Act).

[3] On July 2, 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 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] In its application for leave to appeal, the Applicant argued that the Board of Referees erred in fact and law when it cancelled the claim for sickness benefits made in July 2012 because the claim could not be cancelled based on the criteria in subsection 10(6) of the Act.

[13] The Applicant also argued that the Respondent could not have had a claim for regular benefits established on December 2, 2012, since under section 7 of the Act, he had not accumulated enough hours of insurable employment in his qualifying period.

[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 concerning the Board of Referees’ interpretation and application of sections 7 and 10 of the Act whose response might justify setting aside the decision under review.

Conclusion

[15] Leave to appeal is granted.