Employment Insurance (EI)

Introduction

[1] On July 28, 2015 the General Division (GD) of the Social Security Tribunal of Canada (Tribunal) held a hearing in this matter and determined that the claimant (Appellant) was not entitled to parental benefits under subsection 23(1) of the Employment Insurance Act (EI Act).

[2] The Appellant had the care of her grandson under a court order as of January 7, 2015. She established a claim for parental benefits on January 11, 2015.

[3] The Canada Employment Insurance Commission (Respondent) imposed an indefinite disentitlement on the Appellant, pursuant to subsection 23(1) of the EI Act, because the child was placed in the Appellant’s care on a temporary basis with the intention of returning the child to his parents’ custody when they would be able to resume care.

[4] The Appellant requested a reconsideration decision on the basis that she had cared for her grandson since his birth, for his protection due to concerns with the biological mother and father, and she had to leave her employment to do this.  She had assumed all financial, education, physical and psychological responsibility for the child and would seek permanent custody of the child.

[5] The Respondent maintained its original decision on the basis that the legislative intent of subsection 23(1) of the EI Act requires that the placement of a child be for the purpose of adoption, and since the purpose of placing the child in the Appellant’s care was to provide temporary protective custody, the Appellant did not meet the criteria.

[6] The GD held a hearing by teleconference on July 28, 2015. The Appellant was present at the GD hearing.  The GD rendered its decision on August 3, 2015, and the Tribunal communicated the decision to the Appellant by letter of August 12, 2015.

[7] The Appellant filed an application for leave to appeal (Application) with the Appeal Division of the Tribunal, on September 4, 2015.  The Application was filed within the 30 day time limit.

[8] On September 18, 2015, the Appeal Division of the Tribunal requested additional information from the Appellant.  Specifically, she was asked to specify the grounds of appeal and specific errors of the GD upon which she was relying.  In addition, she was asked what issue the court would be deciding on the future court date referred to in the materials. She provided additional information on October 13, 2015.

[9] The Respondent was given an opportunity to reply to the Appellant’s additional information.  In submissions dated October 14, 2015, the Respondent conceded the appeal and asked that the Application be allowed and a decision be made on the record allowing the appeal.

Issue

[10] The Tribunal must decide if the appeal has a reasonable chance of success.

[11] If the appeal is determined to have a reasonable chance of success, the Tribunal must decide whether to dismiss the appeal, give the decision that the GD should have given, refer the case to the GD for reconsideration or confirm, rescind or vary the decision of the GD.

Law and analysis

[12] Pursuant to subsections 57(1) and (2) of the Department of Employment and Social Development Act (DESD Act), an application for leave to appeal must be made to the Appeal Division, in the case of a decision made by the GD Employment Insurance Section, 30 days after the day on which it is communicated to the appellant, and the Appeal Division may allow further time within which an application for leave is to be made, but in no case may an application be made more than one year after the day on which the decision is communicated to the appellant.

[13] According to subsections 56(1) and 58(3) of the DESD 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”.

[14] Subsection 58(2) of the DESD Act provides that “leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success”.

[15] Subsection 58(1) of the DESD Act states that the only grounds of appeal are the following:

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, whether or not the error appears on the face of the record; or
3. (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.

[16] Subsection 59(1) of the DESD Act sets out the powers of the Appeal Division.  It states:

The Appeal Division may dismiss the appeal, give the decision that the General Division should have given, refer the matter back to the General Division for reconsideration in accordance with any directions that the Appeal Division considers appropriate or confirm, rescind or vary the decision of the General Division in whole or in part.

[17] Subsection 23(1) of the EI Act states:

23. (1) Notwithstanding section 18, but subject to this section, benefits are payable to a major attachment claimant to care for one or more new-born children of the claimant or one or more children placed with the claimant for the purpose of adoption under the laws governing adoption in the province in which the claimant resides.

Application for Leave to Appeal

[18] The Tribunal must be satisfied that the reasons for appeal fall within any of the grounds of appeal and that at least one of the reasons has a reasonable chance of success, before leave can be granted.

[19]  The Appellant relies on paragraph 58(1)(c) of the DESD Act, namely, erroneous findings of fact that the GD made in a perverse or capricious manner. In particular, the Appellant submits that:

1. a) She had enough proof that her grandson had been placed with her by the Children’s Aid Society (CAS) and that she had assumed full care and financial responsibility of the child;
2. b) She was asked to take time off of work to care and parent a newborn child;
3. c) A temporary court order was made and confirmed, placing the child in her care and custody;
4. d) On April 13, 2015, she sought an order (non-temporary) that the child be placed in her custody;
5. e) A court hearing took place on October 6, 2015. At issue was an order placing the child in her care and custody for a period of six (6) months and pursuant to this order, the Appellant is not to leave the child with another caregiver unless approved by a CAS worker; and
6. f) She has every intention of adopting her grandson but court proceedings take time.

[20] The GD decision found that:

1. a) A claimant must show that, at the time of the placement, the purpose was adoption. Adoption, in the context of subsection 23(1), must necessarily mean legal adoption, since the provision states that the purpose of the placement is “adoption under the laws governing adoption in the province in which the claimant resides”.  Although the subsection does not require that a child be legally adopted at the time of the placement, there must be some evidence that those in charge of the placement, either the child and family services agency or the court, are placing the child with the claimant with the intent that the claimant will adopt the child [para. 19];
2. b) The evidence provided by the Appellant indicates that her grandchild was placed with her under a temporary protective custody order. Although she has expressed her intention to adopt her grandson, she cannot do so because she does not have permanent custody. The permanent custody issue is conditional upon decisions rendered by other governing bodies [para. 20];
3. c) The child, for the time being, was not placed with the Appellant for the purpose of adoption [para 21]; and
4. d) The Appellant is not entitled to parental benefits because she has not met all the legislative criteria [para. 22].

[21] The Respondent submits that leave should be granted and the appeal allowed for the following reasons:

1. a) The GD relied on the dissenting opinion of one of the judges in a Federal Court of Appeal (FCA) case in paragraph 19 of its decision.  The decision of the FCA was actually in favour of the claimant; and
2. b) After a further review of this matter, the Respondent concedes the appeal and asks that leave to appeal be granted and the appeal be allowed.

[22] In Canada (AG) v. Hunter, 2013 FCA 12, the Federal Court of Appeal was faced with an application for judicial review of a decision of an Umpire which upheld a decision of a Board of Referees that the respondent (claimant) qualified for benefits under subsection 23(1) of the EI Act.  The respondent’s grandchild had been placed with her under temporary legal custody; she was the sole provider for the child, was filing for legal adoption and had the support of the child protection agency.  The Board found that she was entitled to parental benefits. The Umpire concluded that it was open to the Board to find that the statutory purpose test was met (“for the purpose of adoption”).  The Crown argued that the claim could not succeed because at the relevant time, the respondent had only "temporary legal custody" of her grandchild, and that the statutory purpose test is not met unless there is a court order (or something analogous to a court order) granting the claimant "permanent custody".

[23] The majority of the FCA concluded:

6 … To accept that argument would impose a judge-made precondition to eligibility for benefits under subsection 23(1) that is not stated or necessarily implied by its language. Parliament has chosen broad and general terms to describe the statutory purpose test in subsection 23(1).  In my view, Parliament must be taken to have recognized that the placement of a child for the purpose of adoption may arise in a variety of circumstances.

7 I appreciate that in some cases, a provincial law or documentation relating to the custody of a particular child (assuming such documentation is available in the face of confidentiality issues) may provide a conclusive answer to the factual question asked by subsection 23(1) as to the purpose of the child's placement. In this case, however, the Crown has provided no such documentation and only sparse references to the applicable provincial law. I have been able to find no provincial law that necessarily contradicts the Board's conclusion.

8 In my view, the record discloses no basis upon which this Court can set aside the Umpire's conclusion that the Board's decision was reasonable. Therefore, I would dismiss the application for judicial review.

[24] In a dissenting opinion in the Hunter case, Nadon J.A. stated:

28 Subsection 23(1) provides, in clear terms, that benefits will be payable to a claimant who is caring for one or more children placed with him or her "for the purpose of adoption under the laws governing adoption in the province in which the claimant resides". Thus, a claimant must show that, at the time of the placement, the purpose was adoption. Adoption, in the context of subsection 23(1), must necessarily mean legal adoption, since the provision states that the purpose of the placement is "adoption under the laws governing adoption in the province in which the claimant resides". Although the subsection does not require that a child be legally adopted at the time of the placement, there must be some evidence that those in charge of the placement, either the child and family services agency or the court, are placing the child with the claimant with the intent that the claimant will adopt the child. Whether or not the adoption ultimately occurs is, in my view, irrelevant at that stage.

29 Consequently, not all placements of a child with a claimant will qualify for parental benefits. Adoption of a child by a claimant, in a legal sense, must be the true purpose of the placement. Other motives or purposes, although laudable, will not suffice. Thus, there must be sufficient evidence to demonstrate that the placement will lead or is intended to lead to adoption by a claimant.

30 In making this statement, I do not intend to formulate a rigid test. On the contrary, the approach to the provision should be a flexible one and findings should necessarily be made on the basis of the facts in the record. However, an assessment of whether a placement has been made for the purpose of adoption necessarily remains an objective one. The fact that the claimant, as herein, says that she intends to adopt a child is only one piece of the puzzle. Obviously, if the claimant does not intend to adopt the child placed with her, then that is the end of the story. In any event, I need not dwell any further on this question as there is clearly insufficient evidence to support the view that the child was placed with the respondent for the purpose of adoption. I will therefore take a closer look at the evidence so as to demonstrate that the Board's finding was not open to it.

[25] I agree with the submission of the Respondent that the GD, in dismissing the Appellant’s appeal, relied on the dissenting opinion of Nadon J.A. of the Federal Court of Appeal.  The GD did not mention the majority decision and did not distinguish it in order to dismiss the appeal.  In so doing, the GD erred in law in making its decision.

[26] Therefore, I grant the application for leave to appeal.

Merits of the Appeal

[27] As previously determined by the Federal Court of Appeal in Canada (AG) v. Jewett 2013 FCA 243, Chaulk v. Canada (AG) 2012 FCA 190 and other cases, the standard of review for questions of law and jurisdiction in employment insurance appeals is that of correctness, while the standard of review for questions of fact and mixed fact and law is reasonableness.

[28] Here, the GD failed to identify the applicable legal test or misstated the test altogether.  It erred in law.

[29] Therefore, the Appeal Division is required, under the correctness standard, to make its own analysis (Housen v. Nikolaisen, [2002] SCR 235, 2002 SCC 33 (CanLII) at para. 8) and decide whether it should dismiss the appeal, give the decision that the GD should have given, refer the case to the GD, confirm, reverse or modify the decision.

[30] The Hunter case is similar in facts to this matter (see paragraphs [22] and [23] above). Applying the Hunter case here, I find that the statutory purpose test (“for the purpose of adoption”) was met and that the Appellant met the criteria in subsection 23(1) of the EI Act.

[31] Given all of the above and the Respondent’s request and concession, I allow the appeal. Further, because this matter does not require new evidence or a hearing before the GD, I am giving the decision that the GD should have given which is to allow the Appellant’s appeal and to remove the disentitlement imposed pursuant to subsection 23(1) of the EI Act.

Conclusion

[32] The application for leave to appeal is granted.

[33] The appeal is allowed.