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 September 30, 2016, the Tribunal's General Division concluded that a disentitlement imposed under sections 9 and 11 of the Employment Insurance Act (Act) and section 30 of the Employment Insurance Regulations (Regulations) was justified because the Appellant had failed to prove that he was unemployed.

[3] The Applicant filed an application for leave to appeal to the Appeal Division on October 28, 2016.

Issue

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

The law

[5] As stated in subsections 56(1) and 58(3) of the Department of Employment and Social Development Act, “[a]n 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 Department of Employment and Social Development Act states that “[l]eave 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 Department of Employment and Social Development Act (DESD Act) states that 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.

[8] An application for leave to appeal is a preliminary step to a hearing on the merits. It is a first, and lower, hurdle for the applicant to meet 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 his case.

[9] The Tribunal will grant leave to appeal if the Applicant shows 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] In support of his application for leave to appeal, the Applicant submits the following:

• In accordance with subsection 58(1) of the DESD Act, the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction, namely by commenting and making its findings based on factual material that had not been shared with the Applicant regarding the value of the business;
• Pursuant to subsection 58(1) of the DESD Act, the General Division erred in law when making its decision, namely by conducting a profitability analysis, which goes against the teachings of the Federal Court of Appeal;
• In accordance with paragraph 58(1)(c) of the DESD Act, the General Division's decision is unreasonable and does not consider all the evidence brought before it, namely by failing to consider the Applicant's search and acceptance of new employment and by reaching a conclusion that contradicts the file with regard to the effort he dedicated to the business.

[13] 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 questions of natural justice, fact and/or law, the response to which might justify setting aside the decision under review.

Conclusion

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