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 October 3, 2016, the Tribunal's General Division found that the Applicant had lost her employment by reason of her own misconduct within the meaning of sections 29 and 30 of the Employment Insurance Act.

[3] The Applicant filed an application for leave to appeal to the Appeal Division on November 2, 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] Under subsection 58(1) of the Department of Employment and Social Development Act, the following are the only grounds of appeal:

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 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 Department of Employment and Social Development 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 her application for leave to appeal, the Applicant states that the General Division 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.

[13] She submits that, after listening to the audio recording, it seems that the General Division's factual conclusion at paragraph 46 of its decision to the effect that the Applicant's credibility was undermined because she could not remember what she had written against her work colleagues was erroneous.

[14] The Applicant argues that not only did she provide the facts regarding the reported abuses, but that, contrary to what is alleged in paragraphs 17 and 46 of the General Division decision, she had also testified that the complaints were not recorded.

[15] She argues that the General Division's finding on the issue of credibility is unreasonable in light of the evidence before it.

[16] 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 has raised questions of fact and/or law the answers to which may lead to the setting aside of the decision challenged.

Conclusion

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