Employment Insurance (EI)

Reasons and decision

Decision

[1] The appeal is allowed and the file is returned to the Employment Insurance Section of the General Division of the Social Security Tribunal of Canada (Tribunal) for a new hearing.

Introduction

[2] On February 2, 2017, the Tribunal’s General Division determined that the Appellant had failed to meet the onus placed upon her to demonstrate good cause for the entire period of the delay in making the initial claim for benefits pursuant to subsection 10(4) of the Employment Insurance Act (Act).

[3] The Appellant requested leave to appeal to the Appeal Division on March 10, 2017, after receiving the General Division decision on February 10, 2017. Leave to appeal was granted on March 16, 2017.

Issue

[4] The Tribunal must decide whether the General Division erred when it concluded that the Appellant had failed to meet the onus placed upon her to demonstrate good cause for the entire period of the delay in making the initial claim for benefits pursuant to subsection 10(4) of the Act.

The law

[5]Subsection 58(1) of the Department of Employment and Social Development Act (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.

Analysis

[6] The Appellant is appealing the General Division decision on her antedate request pursuant to subsection 10(4) of the Act. The Appellant is also contesting the number of insurable hours mentioned on the multiple Records of Employment (ROE) issued by her employer (AD-17-213).

[7] The Respondent respectfully submits that the General Division erred in dismissing the appeal without clearly analyzing the first question, namely, whether the Appellant qualified on the earlier date. Therefore, the Respondent submits that the Appellant has grounds for appeal under subsection 58(1) of the DESD Act. As such, the Respondent asks the Appeal Division, pursuant to subsection 59(1) of the DESD Act, to return the case to the General Division for reconsideration.

[8] Subsection 10(4) of the Act states the following:

Late initial claims

An initial claim for benefits made after the day when the claimant was first qualified to make the claim shall be regarded as having been made  on an earlier day if the claimant shows that the claimant qualified to receive benefits on the earlier day and that there was good cause for the delay throughout the period beginning on the earlier day and ending on the day when the initial claim was made.

(Underlined by the undersigned)

[9] The Tribunal finds that the General Division failed to interpret and apply the appropriate test to the issue before it.

[10] The Tribunal finds that the matter should be sent back to the Tribunal’s General Division (Employment Insurance Section) for a new hearing.

Conclusion

[11] The appeal is allowed. The case will be returned to the Tribunal’s General Division (Employment Insurance Section) for reconsideration by a new member.

[12] The Tribunal recommends that the Appellant obtain an amended ROE from her employer or that the parties proceed to obtain a Canada Revenue Agency ruling on the Appellant’s insurable hours prior to the new hearing before the General Division.

[13] The Tribunal orders that the General Division decision dated February 2, 2017, be removed from the file.