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 December 16, 2016, the General Division of the Tribunal determined that:

• The Applicant was not justified in reconsidering the claim for benefits under section 52 of the Employment Insurance Act (Act).

[3] On January 17, 2017, the Applicant filed an application for leave to appeal with the Appeal Division after being notified of the General Division’s decision on December 19, 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 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 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] The Applicant submits that the General Division did not apply the appropriate legal test with respect to the reconsideration period. It argues that the General Division dismissed the provisions of subsection 52(5) of the Act, as well as teachings of the Federal Court of Appeal, in imposing on it an excessively heavy burden.

[13] The Applicant submits that, rather than having to prove that the Respondent acted knowingly, it must simply “suspect” that the Respondent made a false or misleading statement in order for subsection 52(5) of the Act to apply.

[14] 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 a question 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.