Employment Insurance (EI)

Reasons and decision

Persons in attendance

• Appelant: P. D.
• Appellant's representative: Sylvain Dagenais
• Respondent's representative: Manon Richardson

Introduction

[1] On September 25.2015, the General Division of the Social Security Tribunal (Tribunal) determined that Employment Insurance benefits were not payable.

[2] An application for leave to appeal was filed to the Appeal Division on October 28, 2015, and permission for leave to appeal was granted on December 24, 2015.

[3] This appeal was heard via teleconference for the following reasons:

1. The complexity of the issue or issues;
2. The information on file, including the need for additional information;
3. The need to proceed as informally and quickly as possible in accordance with the criteria in the Social Security Tribunal’s rules relating to the circumstances and considerations of fairness and natural justice.

Issue

[4] The Tribunal's Appeal Division must decide whether it should dismiss the appeal; render the decision that the General Division should have rendered; refer the matter back to the General Division; or confirm, rescind or revise the decision.

The law

Legislative Provisions

[5] According to subsection 58(1) of the Department of Employment and Social Development Act (DESD Act), the only grounds of appeal are that:

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.

[6] Subsection 54(6) of the DESD Act requires the General Division to provide written reasons for its decision.

[7] Subsection 59(1) of the DESD Act states that the Appeal Division may dismiss the appeal, issue the decision that the General Division should have issued, refer the matter back to the General Division for reconsideration in accordance with any directions that the Appeal Division considers appropriate, or confirm, rescind or modify the General Division's decision in whole or in part.

[8] The following are the relevant provisions of the Employment Insurance Act applicable to this case:

8. (1) Subject to subsections (2) to (7), the qualifying period of an insured person is the shorter of

1. (d) the 52-week period immediately before the beginning of a benefit period under subsection 10(1), and
2. (e) the period that begins on the first day of an immediately preceding benefit period and with the end of the week before the beginning of a benefit period under subsection 10(1).

8 (2) A qualifying period mentioned in paragraph (1)(a) is extended by the aggregate of any weeks during the qualifying period for which the person proves, in such manner as the Commission may direct, that throughout the week the person was not employed in insurable employment because the person was

1. (a) incapable of work because of a prescribed illness, injury, quarantine or pregnancy;
2. (b) confined in a jail, penitentiary or other similar institution and was not found guilty of the offence for which the person was being held or any other offence arising out of the same transaction;
3. (c) receiving assistance under employment benefits; or
4. (d) receiving payments under a provincial law on the basis of having ceased to work because continuing to work would have resulted in danger to the person, her unborn child or a child whom she was breast-feeding.

10 (1) A benefit period begins on the later of

1. (a) the Sunday of the week in which the interruption of earnings occurs, and
2. (b) the Sunday of the week in which the initial claim for benefit is made.

(2) Except as otherwise provided in subsections (10) to (15) and section 24, the length of a benefit period is 52 weeks.

[…]

10 (10) A claimant’s benefit period is extended by the aggregate of any weeks during the benefit period for which the claimant proves, in such manner as the Commission may direct, that the claimant was not entitled to benefits because the claimant was

1. […]
2. (b) in receipt of earnings paid because of the complete severance of their relationship with their former employer;

Submissions

[9] In support of his appeal, the Appellant states that:

1. The Appellant's application, in April 2013, for special (sickness) benefits is in no way related to his job loss on October 23, 2013.
2. The Commission's use of April 26, 2012, to April 27, 2013 as the qualifying period for a job loss on October 23, 2013, is unfair, discriminatory, and arbitrary.
3. Had the qualifying period been from October 14, 2012, to October 19, 2013, the Appellant would have received what he was rightfully entitled to under the Employment Insurance Act (Act).
4. The General Division's error concerns the qualifying period and the General Division therefore based its decision on an erroneous finding of fact.
5. The manner in which the law was applied by the Commission and confirmed by the General Division goes against the very purpose of the Act.

[10] The Respondent submitted the following to support the appeal's dismissal:

1. The Appellant established a claim on April 28, 2013, and returned to work from May 13, 2013, to October 23, 2013.
2. He filed a (renewal) claim effective June 1, 2014, and he received 26 weeks of regular benefits.
3. The claim was assessed to determine whether it would be in the Appellant's favour to establish a new claim on June 1, 2014, rather than renew the claim established on April 28, 2013; this would not have been to his advantage.
4. The qualifying period could not be extended because the Appellant did not meet the criteria set out in section 8 of the Act.

Standard of review

[11] The Appellant maintains that the standard of review for an error in the finding of fact is reasonableness.

[13] Certain recent Federal Court of Appeal decisions seem to suggest that the Appeal Division should not apply a standard of review to General Division decisions: Canada (A.G.) v. Paradis; Canada (A.G.) v. Jean, 2015 FCA 242; and Maunder v. Canada (A.G.), 2015 FCA 274. However, other decisions determined that, as far as Employment Insurance matters are concerned, an application of a standard of review by the Appeal Division was reasonable.

[14] There seems to be a discrepancy with regard to how the Tribunal's Appeal Division should review appeals of Employment Insurance decisions rendered by the General Division, and in particular, whether the standard of review for questions of law and jurisdiction differs from the standard of review for questions of fact and mixed fact and law.

[15]  As I am unsure how to reconcile this seeming discrepancy, I will assess this appeal by referring to the appeal provisions of the DESD Act and without reference to “reasonableness” and “correctness” as they relate to the standard of review.

Analysis

The General Division’s Decision

[16] The General Division had to determine whether the Appellant had accumulated [translation] "enough hours of insurable employment to establish a claim for Employment Insurance benefits" in December 2014.

[17]  The General Division found that the Appellant did not meet the necessary requirements to receive benefits because, during his qualifying period from December 1, 2013, to November 29, 2014, he had accumulated 6 hours of insurable employment whereas he needed 595 hours.

[18] The General Division noted that the Appellant had stated that it would have been more advantageous for him had his qualifying period started on October 27, 2013. However, the General Division decided on the issue of the number of insurable hours, and did not decide on the issue of a qualifying period beginning on October 27, 2013: paragraph [28] of the General Division decision.

[19] The General Division decision refers to the Appellant's April 2013 application, but does not provide details on how the April 2013 claim for special benefits affected the subsequent claim (following his job loss) for regular benefits. The General Division accepted that the qualifying period had been that of December 2, 2013, to November 29, 2014.

Appeal to the Appeal Division

[20] The following facts are not in dispute:

1. The Appellant filed a claim for special benefits in April 2013 and received benefits.
2. He returned to work from May 13, 2013, to October 23, 2013.
3. He lost his employment on October 23, 2013.
4. He received a severance package that was allocated from October 27, 2013, to May 30, 2014.
5. He filed a renewal claim effective June 1, 2014, and he received 26 weeks of regular benefits.
6. The Commission assessed whether it would have been more advantageous to establish a new claim on June 1, 2014, rather than renew the claim that had been established on April 28, 2013, and determined that with a new claim, the Appellant would have received 4 fewer weeks (i.e. 22 rather than 26 weeks).
7. He filed a new claim on December 2, 2014.
8. The Commission determined that the qualifying period was December 1, 2013, to November 29, 2014, and that during this period, the Appellant had accumulated 6 hours of insurable employment.

[21] The Appellant maintains that it would have been more advantageous for him if his qualifying period had started on October 27, 2013. Nonetheless, pursuant to the Act, this period could not be the qualifying period applicable to the Appellant's situation.

[22] The Appellant had established a claim on April 28, 2013. He received special benefits. He returned to work from May 13 to October 23, 2013, and had accumulated 1043 hours of insurable hours of employment. He also received an eight-month severance package. He did not receive benefits during the period his severance pay was allocated. He filed a renewal effective on June 1, 2014, and received 26 weeks of regular benefits, until November 29, 2014.

[23] As regards the claim on June 1, 2014, the Commission had considered whether it would have been more advantageous for the Claimant to establish a new claim on June 1, 2014, with the 1043 accumulated hours, rather than renew the claim that was established on April 28, 2013. It found that this would not have been beneficial for the Appellant because he would have received 4 fewer weeks of benefits (i.e. 22 rather than 26 weeks).

[24] He had worked in August 2014, and had accumulated 6 hours of insurable employment. He filed a new claim on December 2, 2014. The qualifying period applicable to this claim is that of December 1, 2013, to November 29, 2014. Legislative provisions do not allow for any other qualifying period.  Moreover, the qualifying period could not be extended because the Appellant did not meet the criteria set out in section 8 of the Act.

[25] The General Division's finding that the Appellant [translation] "had to accumulate the required number of insurable hours during his qualifying period, from December 1, 2013, to November 29, 2014, to be entitled to receive benefits, that is, 595 hours, as indicated in the table at paragraph 7(2)(b) of the Act. During this period, he had accumulated only six hours of insurable employment." is not erroneous.

[26] The General Division did not err in law in issuing its decision. It did not base 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.

Conclusion

[27] The appeal is dismissed.