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Reasons and decision
Decision
[1] The Social Security Tribunal of Canada (Tribunal) grants leave to appeal to the Tribunal’s Appeal Division.
Introduction
[2] On May 19, 2017, the Tribunal’s General Division determined that the Applicant had left his employment with just cause in accordance with sections 29 and 30 of the Employment Insurance Act.
[3] The Applicant requested leave to appeal to the Appeal Division on August 18, 2017. The Applicant is deemed to have received communication of the General Division’s decision on May 29, 2017.
Issues
[4] The Tribunal must decide whether it will allow the late application and 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] Subsection 58(1) of the DESD Act states that the only grounds of appeal are the following:
- 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.
[8] In regard to the late application for leave to appeal, the Applicant states that he sent the appeal form to the Service Canada office located in St. John’s, Newfoundland, instead of sending it to the Tribunal in Ottawa. The Tribunal finds, in the present circumstances, that it is in the interest of justice to grant the Applicant’s request for an extension of time to file his application for leave to appeal without prejudice to the Respondent—X (Re), 2014 FCA 249; Grewal c. Minister of Employment and Immigration, [1985] 2 F.C. 263 (F.C.A.).
[9] In regard 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 to appeal can be granted.
[10] The Applicant submits that he did not quit his job. The General Division’s decision does not take into consideration recent case law that determined that random drug testing of employees is on its face discriminatory, even for safety sensitive positions, since it does not reflect actual of future job impairment.
[11] The Applicant submits that the day he refused the employer’s drug test was a normal working day and that he did not at any time since he began his employment exhibit any behavior to discredit his work or personality. The Applicant submits that the employer violates its own procedures. All the workers that tested positive for cannabis received their jobs back. The employer clearly wanted him fired.
[12] After reviewing the appeal docket and the General Division decision, and after considering the Applicant’s arguments 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 that could possibly lead to the reversal of the disputed decision.
Conclusion
[13] The Tribunal grants leave to appeal to the Tribunal’s Appeal Division.