Employment Insurance (EI)

Reasons and decision

Decision

[1] The appeal is dismissed.

Introduction

[2] On April 30, 2014, the Tribunal's General Division found that:

• The summary dismissal of the Appellant's appeal and the conclusion that she had not accumulated a sufficient number of hours of insurable employment to establish a claim for Employment Insurance benefits pursuant to section 7 of the Employment Insurance Act (Act) were justified.

[3] The Appellant filed an appeal before the Appeal Division on June 18, 2015. She had not acknowledged receipt of the General Division's decision until June 2015, following enforcement proceedings against her.

Type of hearing

[4] The Tribunal determined that the appeal would be heard via teleconference for the following reasons:

• the fact that the parties’ credibility was not one of the main issues;
• the cost-effectiveness and expediency of the hearing choice;
• the need to proceed as informally and quickly as possible while complying with the rules of natural justice.

[5] The Appellant and her representative, Sylvain Tessier, attended the hearing; the Respondent did not attend despite having been duly summoned.

The law

[6] Under subsection 58(1) of the Department of Employment and Social Development Act, the following are the only grounds of appeal:

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.

Issue

[7] The Tribunal must determine if the General Division erred in fact or in law in summarily dismissing the Appellant's appeal.

Submissions

[8] The Appellant submitted the following arguments in support of her appeal:

• She has never committed fraud against Employment Insurance and she is entitled to her unemployment.
• She has no family relationship with the employer and owns no shares of the company in question.
• The hours accumulated with employer 9048-2886 Québec Inc. are insurable.

[9] The Respondent’s arguments against the Appellant’s appeal are as follows:

• The evidence shows that the Appellant had accumulated only 622 hours of insurable employment during her short qualifying period because the Canada Revenue Agency found that her employment with employer 9048-2886 Québec Inc. was not insurable.
• The Appellant failed to prove that she was eligible to receive Employment Insurance benefits in accordance with subsection 7(2) of the Act.

Standards of review

[10] The parties made no submissions concerning the applicable standard of review.

[11] The Tribunal notes that the Federal Court of Appeal ruled that the applicable standard of review for a decision of the Board of Referees (now the General Division) and an Umpire (now the Appeal Division) on a question of law is correctness – Martens v. Canada (A.G.), 2008 FCA 240, and that the applicable standard of review for a question of mixed fact and law is reasonableness – Canada (A.G.) v. Hallée, 2008 FCA 159.

Analysis

[12] The Respondent's initial decision addressed the number of insurable hours required to establish an Employment Insurance claim under section 7 of the Act. However, the Tribunal must first decide on the General Division's decision to summarily dismiss the Appellant's appeal.

[13] The Tribunal must determine if the General Division erred in summarily dismissing the appeal pursuant to subsection 53(1) of the Department of Employment and Social Development Act.

[14] Although the Federal Court of Appeal has yet to examine the issue of summary dismissal within the context of the Tribunal’s legislative and regulatory framework, it has examined the issue within the context of it its own summary dismissal process several times. The Tribunal bases its analysis on Lessard-Gauvin v. Canada (A.G.), 2013 FCA 147; Sellathurai v. Minister of Public Safety and Emergency Preparedness, 2011 FCA 1; and Breslaw v. Canada (A.G.), 2004 FCA 264.

[15] In Lessard-Gauvin, The Federal Court of Appeal states the following:

“[8]    The standard for a preliminary dismissal of an appeal is high. This Court will only summarily dismiss an appeal if it is obvious that the basis of the appeal is such that the appeal has no reasonable chance of success and is clearly bound to fail…”

[16] In Sellathurai v. Canada (Minister of Public Safety and Emergency Preparedness), 2011 FCA 1, the Federal Court of Appeal states:

"[8] ... It must be 'plain and obvious' that the appeal has no chance of success."

[17] Finally, in Breslaw, the Federal Court of Appeal stated the following:

“[7] …the threshold for the summary dismissal of an appeal is very high, and while I have serious doubt about the validity of the appellant’s position, the written representations which he has filed do raise an arguable case. The appeal will therefore be allowed to continue."

[18] As can be seen from the Federal Court of Appeal decisions cited above, in the context of summary dismissal, it is not appropriate to consider the case on the merits in the parties’ absence and then find that the appeal cannot succeed.

[19] Before summarily dismissing an appeal, the Tribunal must instead ask itself the following question:

• Does the appeal manifestly lack substance, and is it clearly bound to fail?

[20] For further clarity, the question to be asked is not whether the appeal must be dismissed after considering the facts, the case law, and the parties’ arguments. Rather, it must be determined whether the appeal manifestly lacks substance and is clearly bound to fail regardless of what evidence or arguments might be submitted at a hearing.

[21] In this case, the General Division was justified in rendering a decision on the issue after examining the facts and case law, as well as the parties' written submissions. At the end of its decision, the General Division simply states that the appeal has no chance of success.

[22] Although the General Division did not explicitly cite the applicable test, it's clear to the Tribunal that the General Division weighed the purpose of the summary proceedings when applying the necessary high threshold before summarily dismissing the Appellant's appeal.

[23] The Tribunal is of the opinion that the Appellant's appeal before the General Division was clearly destined to fail given that the Tribunal is not authorized to determine whether or not an employment is insurable. Paragraph 90(1)(a) of the Act clearly states that it is up to the Canada Revenue Agency to decide on the insurability of an employment.

Conclusion

[24] The appeal is dismissed.