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Reasons and decision
Introduction
[1] The Applicant applies to the Social Security Tribunal (Tribunal) for leave to appeal the decision of the General Division (GD) issued on December 31, 2015. The GD allowed the Respondent’s appeal where the Commission had determined that the Respondent did not have sufficient insurable hours to qualify for regular benefits under the Employment Insurance Act (EI Act).
[2] The Respondent requested a reconsideration of the Commission’s decision. The Commission maintained its original decision on the basis that the Respondent had 832 hours of insurable employment between June 29, 2014 and June 27, 2015 and she needed 910 hours of insurable employment to qualify for benefits.
[3] The Applicant filed an application for leave to appeal (Application) with the Appeal Division of the Tribunal on January 14, 2015. The Application was filed within the 30 day time limit.
[4] The grounds of appeal stated in the Application are that the GD erred in its findings of fact as follows:
- The GD based its decision on an erroneous finding of facts that it made in a perverse or capricious manner or without regard for the material before it, pursuant to paragraph 58(1)c) of the DESD Act;
- The Respondent accumulated 844 hours of insurable employment in her qualifying period while she needed 910 hours to qualify for benefits;
- The GD failed to recognize that Record of Employment (ROE) W40921056 was an amended version of ROE W37987371; and
- The GD added hours noted on both of these ROEs in the Respondent’s qualifying period while only the hours noted on the amended ROE should have been included in the calculation.
Issue
[5] The Tribunal must decide whether the appeal has a reasonable chance of success.
Law and analysis
[6] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development (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”.
[7] 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”.
[8] Subsection 58(1) of the DESD Act states that the only grounds of appeal are the following:
- (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.
[9] The Tribunal needs to be satisfied that the reasons for appeal fall within any of the enumerated grounds of appeal. At least one of the reasons must have a reasonable chance of success, before leave can be granted.
Errors of Law Asserted
[10] The Tribunal notes that the Respondent was present and testified at the hearing before the GD, but the Applicant chose not to attend.
[11] The GD found, at page 6 of its decision, that:
[20] The Appellant’s benefit period was established to be June 29, 2014 to June 27, 2015. The total hours of insurable employment from the 4 ROEs in the docket is 1045.
[21] The 4 ROEs in question indicate the Appellant was separated from employment due to a shortage of work in each and every case. The Member finds that the Appellant was separated from employment due to a shortage of work in each of the 4 ROEs.
[22] The burden of proof was on the Appellant to prove she had enough insurable hours of employment and she made the case, in her direct testimony, to prove that she had sufficient hours of insurable employment in her qualifying period. There was no evidence to the contrary.
[23] The Act requires that an Appellant, during their qualifying period, to have at least the number of hours of insurable employment set out in the table in relation to the regional rate of unemployment that applies to the person.
[24] The Member finds the Appellant had 1045 hours of insurable employment in her qualifying period; more hours than required by the table in relation to the regional rate of unemployment that applies to the Appellant.
[25] The Member finds that the Appellant had the requisite number of hours of insurable employment, in the period in question, and had an interruption of earnings from employment to be qualified to establish a claim pursuant to the Act.
[26] The Member finds that the Appellant was a new entrant or a re-entrant to the labour force and qualifies to receive benefits. The Appellant is to receive Employment Insurance benefits for the period in question, from July 24, 2015.
[12] While the GD stated the legislative provisions relevant to the issues on appeal, the Applicant argues that the GD erred in its findings of fact, namely, that the Respondent had 1045 hours of insurable income. In particular, the Applicant submits that the GD counted two ROEs when only the latter one should have counted, because it amended and replaced an earlier ROE.
[13] If the insurable hours in two ROEs were counted when one amended and replaced the other, then this finding of fact would be “made in a perverse or capricious manner or without regard for the material before it”. Therefore, the findings of fact - related to the ROEs and the total hours of insurable employment in the Respondent’s qualifying period - warrant review.
[14] While an applicant is not required to prove the grounds of appeal for the purposes of a leave application, at the very least, an applicant ought to set out some reasons which fall into the enumerated grounds of appeal. Here, the Applicant has identified grounds and reasons for appeal which fall into the enumerated grounds of appeal.
[15] On the ground that the GD may have 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, I am satisfied that the appeal has a reasonable chance of success.
Conclusion
[16] The Application is granted.
[17] This decision granting leave to appeal does not presume the result of the appeal on the merits of the case.
[18] I invite the parties to make written submissions on whether a hearing is appropriate and, if it is, the form of the hearing and, also, on the merits of the appeal.