Employment Insurance (EI)

Reasons and decision

Decision

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

Introduction

[2] On March 2, 2017, the Tribunal’s General Division found that the Applicant had lost his employment by reason of his own misconduct within the meaning of sections 29 and 30 of the Employment Insurance Act (Act).

[3] The Applicant filed his application for leave to appeal to the Appeal Division on March 24, 2017.

Issue

[4] The Tribunal must decide whether 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 “[l]eave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.”

Analysis

[7] According to subsection 58(1) of the DESD 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] The application for leave to appeal is a preliminary step to a hearing on the merits. It is an initial 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 leave to appeal stage, the applicant does not have to prove the 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] To do so, the Tribunal must, in accordance with subsection 58(1) of the DESD Act, be able to see 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 submits that the General Division erred in its application of the legal test for misconduct. He also argues that the General Division did not comment on the causal link between the dismissal and the alleged misconduct.

[13] He submits that the General Division erred in giving precedence to the employer’s hearsay evidence over the Applicant’s direct testimony.

[14] He argues that, according to the case law, misconduct is a sanction with serious consequences and, therefore, that the Tribunal cannot rely on hearsay evidence over direct testimony.

[15] 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 several questions, the answers to which may justify setting aside the decision under review.

Conclusion

[16] The Tribunal grants leave to appeal.