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 28, 2016, the Tribunal’s General Division found that the disentitlement imposed on the Applicant under sections 18 and 50 of the Employment Insurance Act and section 9.001 of the Employment Insurance Regulations was valid because he had failed to prove his availability for work.

[3] The Applicant filed an application for leave to appeal before the Appeal Division on December 8, 2016.

Issue

[4] The Tribunal must decide 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 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 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 his application for leave to appeal, the Applicant contends that the General Division failed to consider the fact that when it issued an amended decision the Respondent imposed a penalty on him and therefore refused to exercise its jurisdiction.

[13] The Applicant also argues that the General Division failed to consider material before it or the jurisprudence establishing that claimants are exempted from actively looking when their best chance of finding work is an imminent call-back from their employer or the jurisprudence establishing that the Respondent must notify claimants that a reasonable time has elapsed and that they need to start looking actively for work.

Conclusion

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