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Reasons and decision
[1] Previously, a member of the General Division dismissed the Applicant’s appeal. In due course, the Applicant filed an application requesting leave to appeal to the Appeal Division.
[2] Subsection 58(1) of the Department of Employment and Social Development Act (Act) states that the only grounds of appeal are that:
- (a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- (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.
[3] The Act also states that leave to appeal is to be refused if the appeal has “no reasonable chance of success”.
[4] This case involves alleged misconduct as defined by the Employment Insurance Act.
[5] In his initial application, the Applicant provided detailed submissions which restated much of the evidence he had previously provided to the General Division. He also explained how, in his view, the General Division member erred by not accepting his version of events.
[6] Because these initial submissions did not set out a ground of appeal which had a reasonable chance of success, I asked Tribunal staff to contact the Applicant by letter to seek further details. Specifically, the Tribunal letter asked that the Applicant provide full and detailed grounds of appeal as required by the Act, and provided examples of what constitutes grounds of appeal. The Tribunal letter also noted that if this was not done, the application could be refused without further notice.
[7] The Applicant did not respond.
[8] Although the Applicant alleged an error of fact had been made, it appeared to me that the Applicant was actually asking that I re-weigh the evidence and come to a different conclusion than that reached by the General Division member.
[9] This I cannot do.
[10] I note that although the General Division member did not ultimately accept the Applicant’s version of events, on the face of the record he did take it into account.
[11] The role of the Appeal Division is to determine if a reviewable error set out in ss. 58(1) of the Act has been made by the General Division and if so to provide a remedy for that error. In the absence of such a reviewable error, the law does not permit the Appeal Division to intervene. It is not our role to re-hear the case de novo.
[12] It is not sufficient for an Applicant to ask the Appeal Division for a different outcome than that already rendered. In order to have a reasonable chance of success, the Applicant must explain in some detail how in their view at least one reviewable error set out in the Act has been made. Having failed to do so, even after having been prompted to do so by the Tribunal, I find that this application for leave to appeal does not have a reasonable chance of success and must be refused.