Table of contents
Reasons and decision
Decision
[1] The Social Security Tribunal of Canada (Tribunal) grants leave to appeal before the Tribunal's Appeal Division.
Introduction
[2] On July 21, 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 is presumed to have filed an application for leave to appeal to the Appeal Division on August 22, 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 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] An 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 at least one of the grounds of appeal has a reasonable chance of success.
[10] This means that the Tribunal must, in accordance with subsection 58(1) of the DESD Act, be in a position to determine whether there is an issue of law, fact or jurisdiction that may lead to the setting aside of the decision under review.
[11] In light of the foregoing, does the Applicant’s appeal have a reasonable chance of success?
[12] The Applicant submits that his testimony was deemed credible and that it was consistent with prior statements in his file. Given that the General Division had deemed the Applicant's testimony as credible (without contradiction and consistent with the statements in his file), it should have retained his testimony in its entirety. It is been well-established by case law that that is what must be done and that doing otherwise would essentially place the burden of proof on the Applicant, which would be an error of law.
[13] The Appellant [sic] further submits that it was an error to believe the employer's version of events and therefore come to a finding of misconduct, despite the obvious contradictions in the employer's submissions.
[14] The Applicant states that the General Division erred in failing to take into account that it was his immediate supervisor who [translation] "gave the impression that his vacation would be approved." In fact, it was not a mere assumption on the part of the Applicant, but the direct words spoken by his immediate supervisor, who stated that there would be no issues and that this was just a formality. The Applicant maintains that dismissing an employee to [translation] "make an example [out of him]" in front of the other employees does not meet the burden of proof imposed on the employer.
[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 an issue pertaining to the General Division’s interpretation and application of sections 29 and 30 of the Act, which may lead to the setting aside of the decision under review.
Conclusion
[16] The Tribunal grants leave to appeal to the Appeal Division.