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 November 1, 2016, the Tribunal’s General Division found as follows:

• The Respondent could reconsider the Applicant’s application for benefits starting on October 24, 2010, under subsection 52(5) of the Employment Insurance Act (Act);
• Disentitlement could be imposed on the Applicant in accordance with sections 9, 11(1) and 11(4) of the Act.

[3] The Applicant filed an application for leave to appeal to the Appeal Division on December 1 after the decision was communicated to her by the General Division on November 14, 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 provide that “[a]n 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 Department of Employment and Social Development Act provides 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 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 their case.

[9] The Tribunal will grant leave to appeal if it is satisfied that the Applicant has shown that at least one of the aforementioned 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 Act, whether there is a question of law, fact or jurisdiction the answer to which may 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 asserts that the General Division erred in its assessment of the Respondent’s exercise of the discretion provided for under subsection 52(5) of the Act. She contends that the burden of proof imposed on the Respondent by the General Division was insufficient in light of the jurisprudence on the matter.

[13] She submits that the Member of the General Division showed obvious signs of impatience when she presented her arguments on the Respondent’s exercise of discretion, for example. She argues that she was denied a fair and equitable hearing before the General Division.

[14] After reviewing 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 Respondent has raised a number of questions of law or fact and law and natural justice the answer to which may lead to the setting aside of the decision under review.

Conclusion

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