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Decision
[1] The appeal is allowed. The decision of the General Division is varied in accordance with these reasons.
Introduction
[2] On August 7, 2015, a member of the General Division allowed the appeal of the Respondent against the previous determination of the Commission. In due course, the Commission filed an application for leave to appeal with the Appeal Division and leave to appeal was granted.
[3] This appeal was decided on the record.
The law
[4] According to subsection 58(1) of the Department of Employment and Social Development Act, 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.
[5] As previously determined by the Federal Court of Appeal in Canada (Attorney General) v. Jewett, 2013 FCA 243, Chaulk v. Canada (Attorney General), 2012 FCA 190, and many 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 in employment insurance appeals is reasonableness.
Analysis
[6] This appeal hinges on jurisdictional issues.
[7] In their appeal, the Commission submits that the decision under appeal to the General Division member concerned the Respondent’s application for regular employment insurance benefits. They raise no objection to the member’s findings on that issue. Rather, the Commission pleads that the General Division member erred by exceeding his jurisdiction when he ruled that the Respondent was instead entitled to sickness benefits. The Commission also submits that the member was incorrect in law and in fact to conclude as he did that the Respondent qualified for sickness benefits.
[8] The Respondent submits that she does indeed qualify for sickness benefits. She asks that the General Division decision be upheld.
[9] In his decision, the member found that the Respondent did not qualify for regular benefits. He concluded, however, that the evidence showed that the Respondent was eligible to receive sickness benefits as she had accumulated sufficient insurable hours to qualify and had previously submitted sufficient medical documentation. On this basis, he then “dismissed with modifications” the Respondent’s appeal.
[10] I note that there is no such thing as dismissing an appeal with modifications. I believe, however, that the member meant to say that he was varying the Commission decision in accordance with his reasons or, in the alternative, giving the decision that (in his view) the Commission should have given. Both of these actions are permitted under ss. 54(1) of the Act.
[11] It is trite law that the member assigned to a file must determine what issues are properly before them and only rule upon those issues. It is also trite law that in employment insurance matters the parties do not establish what those issues are, the member does based upon s. 113 of the Employment Insurance Act.
[12] In practice, this means that the General Division is generally limited to examining those issues upon which the Commission has already issued a reconsideration decision. I note that the refusal to reconsider an issue (rightly or wrongly) is in itself a decision that may be appealed.
[13] In this case, the Commission determined that the Respondent did not have sufficient hours of insurable employment to qualify for regular benefits. Upon reconsideration, they maintained their decision.
[14] This was the sole issue under appeal, and therefore the sole issue that was within the jurisdiction of the member to examine.
[15] As noted above, the General Division member found that the Commission was correct to conclude as they did that the Respondent did not qualify for regular benefits. Unfortunately, the member then went beyond this and decided that the Respondent qualified for sick benefits. This was an error of jurisdiction, reviewable on the standard of correctness.
[16] To be clear, it may well be that the member is correct and the Respondent qualifies for sickness benefits. I make no finding on that substantive issue. But it is the Commission that has been tasked by Parliament with issuing an initial decision on this point, not the Tribunal. As no such decision was before him, the member had no jurisdiction to intervene.
[17] Having done so regardless, his decision cannot stand.
[18] Having found the above, I note again that the Commission has not appealed against the portion of the member’s decision that was properly within his jurisdiction, namely the determination that the Respondent was not entitled to regular benefits.
[19] As such, the correct remedy for the member’s error is for me to give the decision that the General Division should have given, which is that the Respondent does not have sufficient hours of insurable employment to qualify for regular benefits.
Conclusion
[20] For the above reasons, the appeal is allowed. The decision of the General Division is varied in accordance with these reasons.