Employment Insurance (EI)

Reasons and decision

Decision

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

Introduction

[2] On January 12, 2017, the General Division of the Tribunal determined that the allocation of earnings was calculated in accordance with sections 35 and 36 of the Employment Insurance Regulations (Regulations).

[3] The Applicant requested leave to appeal to the Appeal Division on February 3, 2017.

Issue

[4] The Tribunal must decide if the appeal has a reasonable chance of success.

The law

[5] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development Act (DESD Act), “an 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 DESD Act provides that “leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success”.

Analysis

[7] Subsection 58(1) of the DESD Act states that the only grounds of appeal are the following:

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] In regards to the application for leave to appeal, the Tribunal needs to be satisfied that the reasons for appeal fall within any of the above-mentioned grounds of appeal and that at least one of the reasons has a reasonable chance of success, before leave can be granted.

[9] The Applicant, in support of his application for leave to appeal, submits that section 46.01 of the Employment Insurance Act and subsection 56(1) of the Regulations apply to his specific case and were not discussed by the General Division in its decision.

[10] He pleads that section 46.01 specifically states that no repayment of an overpayment of benefits is applicable "if more than 36 months have elapsed since the lay- off or separation from the employment in relation to which the earnings are paid". The difference from the time of layoff in November 2010 to the arbitrated severance payment received in December 2014 is much greater than the 36 months stated in section 46.01.

[11] The Applicant submits that he disputes the Respondent’s inconsistent calculations of the amount owing and the application of a second waiting period to this particular claim.

[12] After reviewing the docket of appeal, the decision of the General Division and considering the arguments of the Applicant in support of his request for leave to appeal, the Tribunal finds that the appeal has a reasonable chance of success. The Applicant has set out reasons that fall into the above-enumerated grounds of appeal and that could possibly lead to the reversal of the disputed decision.

Conclusion

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