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 July 25, 2016, the General Division of the Tribunal determined that:

• The allocation of earnings was calculated in accordance with sections 35 and 36 of the Employment Insurance Regulations (Regulations).

[3] The Applicant is deemed to have requested leave to appeal to the Appeal Division on August 12, 2016.

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 grounds of appeal and that at least one has a reasonable chance of success ,before leave can be granted.

[9] The Applicant argues that the decisions rendered so far in his case are consistently incoherent. He questions why he was acquitted in 2009 of wrongfully not claiming his city councillor expense allowance compensation for the period he received benefits and that the General Division is now requesting that he reimburse the amounts he received when he filed El for the second time in 2013. He was consistent in his procedure where he followed the previous instructions he was given back in 2009 when he was told that he did not have to declare his city councillor income while he receive El Benefits as these were considered excluded as they were considered to be an expense allowance. These amounts are paid to him on a monthly basis to cover his general expenses while he serves his city as an elected official.

[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 disputes the interpretation and application of sections 35 and 36 of the Regulations by the General Division.  He has set out reasons which fall into the above enumerated grounds of appeal 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.