Employment Insurance (EI)

Decision

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

Introduction

[2] On September 25, 2015, the General Division of the Tribunal found that:

1. - The Applicant had lost her employment by reason of her own misconduct within the meaning of sections 29 and 30 of the Employment Insurance Act (the Act).

[3] The Applicant filed an application for leave to appeal to the Appeal Division on October 28, 2015, after receiving the General Division’s October 6, 2015, decision.

Issue

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

The law

[5] As stipulated in 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 states that “leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.”

Analysis

[7] According to 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] 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 it is convinced 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 her application for leave to appeal, the Applicant maintains that the General Division did not take into account the evidence brought before it when making its decision.

[13] She maintains that the decision does not mention the Applicant’s mental state when deciding on the voluntary or wilful nature of the misconduct. She argues that this essential element was entered into evidence and was the subject of a representation by her representative.

[14] After reviewing the appeal docket, the General Division’s 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 question regarding the interpretation and application of sections 29 and 30 of the Act by the General Division whose response might justify setting aside the decision under review.

Conclusion

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