Employment Insurance (EI)

Decision

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

Introduction

[2] On January 3, 2014, the Tribunal’s General Division found that:

• - A disentitlement should be imposed on the Applicant under section 37 of the Employment Insurance Act (“the Act”) and section 55 of the Employment Insurance Regulations (“the Regulations”) because he had been outside Canada;
• - A disentitlement should be imposed on the Applicant under section 18 of the Act because he had not proved that he was available for work;
• - The imposition of a penalty with a variation was justified under section 38 of the Act for committing an act or omission by making one or more representations that the Appellant knew were false or misleading.

[3] The Applicant filed an application for leave to appeal to the Appeal Division on January 17, 2014.

Issue

[4] The Tribunal must determine whether the appeal has a reasonable chance of success.

The law

[5] As stated in subsections 56(1) and 58(3) of the Department of Employment and Social Development Act, “[a]n 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 “[l]eave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success”.

Analysis

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

1. (a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. (b) the General Division 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 General Division 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] An application for leave to appeal 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 application for leave to appeal stage, the Applicant does not have to prove his case.

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

[10] To do so, the Tribunal must, in accordance with subsection 58(1) of the Department of Employment and Social Development Act, be able to see a question of law, fact or jurisdiction the answer to which may lead to the setting aside of the decision attacked.

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

[12] In his application for leave to appeal, the Applicant essentially argues that the General Division erred in fact and in law in interpreting paragraph 55(f) of the Regulations and in interpreting section 18 of the Act with regard to his availability and that the General Division also erred in law on the issue of the penalty, since he had no subjective knowledge of the false representation.

[13] After reviewing the appeal file, the General Division’s decision and the arguments in support of the application for leave to appeal, the Tribunal finds that the appeal has a reasonable chance of success.

[14] In his appeal file, the Applicant has raised several questions of fact and law relating to the General Division’s interpretation and application of the relevant provisions of the Act and the Regulations, the answers to which may lead to the setting aside of the decision challenged.

Conclusion

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