Employment Insurance (EI)

Reasons and decision

Decision

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

Introduction

[2] On May 11, 2016, the Tribunal’s General Division found that the Respondent’s claim for employment insurance benefits starting May 25, 2014, could be cancelled and that the EI claim could be antedated to January 1, 2015.

[3] The Applicant filed an application for leave to appeal before the Appeal Division on June 2, 2016.

Issue

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

The law

[5] Subsections 56(1) and 58(3) of the Department of Employment and Social Development Act (“the DESD Act”) provide that "an appeal to the Appeal Division may only be brought if leave to appeal is granted" and that 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] An application for leave to appeal 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 application for leave to appeal stage, the Applicant does not have to prove its case.

[9] The Tribunal will grant leave to appeal if it is satisfied that any of the above 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 DESD Act, whether there is a question of law, fact, or jurisdiction to which the response might justify setting aside the decision under review.

[11] In light of the foregoing, does the Applicant’s appeal have a reasonable chance of success?

[12] The Applicant contends in its application for leave to appeal that the evidence in the file clearly shows that the Respondent served her waiting period from May 25 to June 7, 2014, and that she received benefits from June 8 to September 20, 2014.

[13] The Applicant claims that the General Division erred in applying paragraph 10(6)(b) of the Employment Insurance Act (“the Act”), which provides that the Applicant may cancel a portion of the benefit period immediately before the first week for which benefits were paid or payable. The Applicant claims that, since benefits were paid or otherwise payable at the start of her claim, the General Division could not cancel any portion of the claim in accordance with paragraph 10(6)(b) of the Act.

[14] Upon review of the appeal file, the General Division’s decision and the arguments in support of the application for leave to appeal, the Tribunal finds that the appeal has a reasonable chance of success. The Applicant raised a question concerning the General Division’s interpretation and application of paragraph 10(6)(b) of the Act the answer to which may lead to the setting aside of the decision under review.

Conclusion

[15] Leave to appeal is granted.