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Introduction
[1] The Applicant is a citizen of the United States of America who worked in Toronto until February, 2014 when his employment was terminated. He established an initial claim for Employment Insurance benefits. In March, 2014 the Applicant left Canada to visit his ailing Mother, who subsequently passed away. The Respondent imposed a disentitlement to benefits from March 24, 2014 to April 25, 2014 as the Applicant did not establish that he was available for work. It also imposed a disentitlement to benefits from April 25, 2014 onward because the Applicant’s immigration status that permitted him to work in Canada was revoked upon his return to Canada because he had left the country.
[2] On reconsideration, the Respondent revoked the disentitlement for a period of fourteen days after March 24, 2014 pursuant to section 55 of the Employment Insurance Regulations.
[3] The Applicant appealed the Respondent’s decision to maintain the disentitlement from April 25, 2014 onward to the General Division of the Social Security Tribunal. In support of his appeal, he repeated the uncontested facts that were before the General Division, set out the legal test applied by the General Division in reaching its decision, and argued that the General Division erred in law when it decided that the Applicant was not available to work from April 25, 2014 onward.
[4] The Respondent did not file any submissions.
Analysis
[5] In order to be granted leave to appeal, the Applicant must present some arguable ground upon which the proposed appeal might succeed: Kerth v. Canada (Minister of Development), [1999] FCJ No. 1252 (FC). The Federal Court of Appeal has also found that an arguable case at law is akin to whether legally an applicant has a reasonable chance of success: Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41, Fancy v. v. Canada (Attorney General), 2010 FCA 63.
[6] The Department of Employment and Social Development Act governs the operation of this Tribunal. Section 58 of the Act sets out the only grounds of appeal that may be considered to grant leave to appeal a decision of the General Division (see the Appendix to this decision). Therefore, I must decide if the Applicant has presented a ground of appeal that has a reasonable chance of success on appeal.
[7] The Applicant provided detailed submissions to support his request for leave to appeal to the Appeal Division. He included a detailed summary of the undisputed facts, and the General Division decision. While this information in helpful, the repetition of facts does not disclose a ground of appeal that has a reasonable chance of success on appeal
[8] The Applicant also claimed that the General Division decision contained an error in law when it determined that the Applicant was not available for work because his immigration status changed to prevent him from being able to work after he left Canada. He conceded that the General Division correctly identified the legal principles that were to be applied in this case. The General Division made no error in this regard.
[9] The Applicant referred to the section 55 of the Employment Insurance Regulations. This provides that a claimant is not disentitled to benefits if he is outside Canada for a period of not more than seven days to visit a seriously ill family member, or to attend a funeral of a family member. The Applicant argued that this provision recognized that a claimant could be out of the country for a period of time for reasons beyond his control, and that this should not disentitle him to employment insurance benefits.
[10] I acknowledge that it was on the basis of section 55 of the Employment Insurance Regulations that the Respondent changed its decision regarding the Applicant’s disentitlement to benefits for the period from March 24, 2014 for a period of fourteen days. This was not in dispute.
[11] However, section 55 of the Employment Insurance Regulations does not state that any of the exceptions to disentitlement in that provision can be extended beyond the specific time permitted. It also does not refer to any such absence from Canada being within or beyond a claimant’s control. The Respondent made no decision regarding whether the Applicant’s decision to leave Canada to care for his ailing Mother was within his control or not.
[12] Based on the evidence before it, the General Division made a finding of fact that the Appellant’s decision to remain outside Canada for more than fourteen days was within his control, and that he was prepared to “live with the consequences” of his decision. This finding of fact was not made in a perverse or capricious manner, or without regard to the material before it. The General Division decision clearly set out the basis upon which this finding of fact was made. The Applicant has essentially asked the Appeal Division of the Tribunal to reevaluate and reweigh the evidence that was put before the General Division to reach a different conclusion. This is the province of the trier of fact. The tribunal deciding whether to grant leave to appeal ought not to substitute its view of the persuasive value of the evidence for that of the tribunal who made the findings of fact – Simpson v. Canada (Attorney General), 2012 FCA 82. Therefore, I find that this argument is not a ground of appeal that has a reasonable chance of success on appeal.
Conclusion
[13] The Application is refused for the reasons set out above.
Appendix
Department of Employment and Social Development Act
58. (1) The only grounds of appeal are that
- (a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- (c) the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
58. (2) Leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.