Employment Insurance (EI)

Reasons and decision

Decision

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

Introduction

[2] On June 3, 2015, the General Division of the Tribunal decided that:

• The Tribunal found that the Applicant was paid parental benefits in accordance with section 23 of the Employment Insurance Act (the “Act”). Parental benefits were paid, during the 52 week window period, in accordance with section 23(2) of the Act. The Applicant did not meet the exception, for an extension or a deferral of the benefit period, pursuant to subsection 23(3) of the Act, because the baby was not hospitalized.

[3] The Applicant requested leave to appeal to the Appeal Division on July 2, 2015.

Issue

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

The law

[5] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development Act (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”.

[6] 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”.

Analysis

[7] 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.

[8] In regards to the application for permission to appeal, the Tribunal needs to be satisfied that the reasons for appeal fall within any of the above mentioned groups of appeal and that at least one of the reasons has a reasonable chance of success before leave can be granted.

[9] The Applicant argues the following in support of his appeal:

• Section 23 of the Act has a principle that if a parent cannot take their child at birth because of some legitimate reason (pending adoption, hospital stay or parent off to war) then only until placement can be made does the limiting time period kick in;
• Instead of wording the provision to reflect that principle, it allows only 3 things - any other situation is excluded which is very unfair and discriminatory to anyone who falls outside;
• Notice was sent to the Tribunal that the Applicant intends to contest the constitutional validity of Section 23 (1) and (2) of the Act as being discriminatory contrary to Section 15(1) of the Charter of Rights and in particular the right to equal protection and benefit under the law and to declaratory relief under Section 24 (1) of the Charter of Rights and Section 52. (1) part VII of the Constitution Act, 1982.

[10] After reviewing the docket of appeal, the decision of the General Division and considering the arguments of the Applicant in support of his request for leave to appeal, the Tribunal finds that the appeal has a reasonable chance of success. The Applicant raises a question of jurisdiction and questions regarding the application of the Charter of Rights that could possibly lead to the reversal of the disputed decision.

Conclusion

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