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 (DESDA) 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 DESDA also states that leave to appeal is to be refused if the appeal has “no reasonable chance of success”.
[4] In her initial application, the Applicant repeated her view, previously expressed to the General Division, that she had been discriminated against by her Employer and cited all three grounds of appeal.
[5] Because these initial submissions did not explain in what manner the General Division member had erred, 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 DESDA, 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.
[6] The Applicant responded by repeating much of the evidence she had already presented to the General Division member regarding her situation and the conduct of her Employer. She also submitted that no one had asked for her “side of the story”.
[7] I note that on the face of the record the General Division member did solicit and consider the Applicant’s evidence and submissions, even if he did not ultimately accept them.
[8] The Applicant is dissatisfied with the General Division member’s decision. But in essence, she would like me to re-weigh the evidence and come to a different conclusion than that already reached by the General Division member.
[9] This I cannot do.
[10] The role of the Appeal Division is to determine if a reviewable error set out in ss. 58(1) of the DESDA 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.
[11] 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, an applicant must explain in some detail how, in their view, at least one reviewable error set out in the DESDA has been made. Having failed to do so, even after having been prompted to do so by the Tribunal, I find that the Applicant’s application for leave to appeal does not have a reasonable chance of success and must be refused.