Employment Insurance (EI)

Decision and reasons

Decision

[1] The application for leave to appeal is granted.

Overview

[2] The Applicant (Claimant) lost his job when his employer went out of business. His last day of work was September 4, 2016. The Claimant visited a Service Canada office and spoke with an agent about his intention to apply for Employment Insurance benefits. From what he was told, the Claimant understood that he needed to obtain his Record of Employment (ROE) before he could apply for benefits, so he left the office with the intention of obtaining this document. The Claimant had some difficulty with this because his employer had gone out of business, but his ROE was finally prepared on November 7, 2016, and mailed to him. He returned to Service Canada where he was told to file his application online. The Claimant’s online application was dated November 23, 2016. He later requested that his initial claim be antedated to September 5, 2016, but the Canada Employment Insurance Commission (Commission) refused his request to antedate on the basis that he had not shown good cause for the delay. The Commission did not change its decision in response to the Claimant’s request for reconsideration.

[3] The Claimant appealed to the General Division of the Social Security Tribunal, arguing that he had been unfamiliar with the application process and that he had understood a Service Canada agent to have told him that he could not apply until he received his ROE. The General Division dismissed his appeal. It did not accept that the Commission had misled him but found rather that the Claimant had incorrectly assumed that he could not apply without the ROE. The General Division noted that ignorance of the law is not “good cause” and found that he did not act as a reasonable and prudent person.

[4] The Claimant has a reasonable chance of success on appeal. The General Division made a finding of fact as to when the Claimant first enquired about benefits and the General Division’s determination that the Claimant had not acted as a reasonable and prudent person was based in part on this finding. This finding may have been based on a misapprehension of the evidence.

Issue

[5] Is there an arguable case that the General Division based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it, namely that the General Division misapprehended the Claimant’s evidence as to when he first enquired about applying for benefits with Service Canada?

Analysis

General principles

[6] The General Division is required to consider and weigh the evidence that is before it and to make findings of fact. It is also required to consider the law. The law would include the statutory provisions of the Employment Insurance Act and the Employment Insurance Regulations that are relevant to the issues under consideration, and could also include court decisions that have interpreted the statutory provisions. Finally, the General Division must apply the law to the facts to reach its conclusions on the issues that it must decide.

[7] The appeal to the General Division was unsuccessful and the application now comes before the Appeal Division. The Appeal Division is permitted to interfere with a General Division decision only if the General Division has made certain types of errors, which are called “grounds of appeal.”

[8] 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; and
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.

[9] Unless the General Division erred in one of these ways, the appeal cannot succeed, even if the Appeal Division would otherwise disagree with the General Division’s conclusion and the result.

[10] At this stage, I must find that there is a reasonable chance of success on one or more grounds of appeal in order to grant leave and allow the appeal to go forward. A reasonable chance of success has been equated to an arguable case.^{Footnote 1}

[11] The Claimant did not specifically argue that the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it or, more specifically, that it misapprehended his evidence as to the date he first enquired about his benefits at a Service Canada office. However, I consider the possibility of such an error to be apparent on the face of the record.

Issue: Is there an arguable case that the General Division based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it, namely; that the General Division misapprehended the Claimant’s evidence as to when he first enquired about applying for benefits with Service Canada?

[12] There is an arguable case that the General Division based its decision on a misunderstanding of the Claimant’s evidence as to the extent of his delay in making initial enquiries at Service Canada. The extent of the Claimant’s initial delay appears to have factored significantly into the decision that he did not act as a reasonable and prudent person throughout the whole period of the delay.

[13] The General Division acknowledged the Claimant’s testimony that he went to Service Canada immediately or within the first week after his employment terminated in early September, but the Member disregarded this testimony. Instead, the General Division calculated the date that the Claimant first visited Service Canada from the Claimant’s testimony that he received the ROE between two and three weeks after his visit.

[14] On the basis that the Claimant received the ROE sometime after November 7, 2016, the General Division accepted that the Claimant did not visit Service Canada until “towards the end of October.” This would involve a delay of approximately seven weeks—from the time he was laid off until he first made any enquiry as to his rights and responsibilities—for which the Claimant had offered no explanation.

[15] In selecting an initial visit date near the end of October, the General Division stated that it noted a “lack of clarity in the [Claimant’s] recollections of when his conversation with Service Canada took place.” It says that this is “understandable given the passage of time.” It would therefore appear that no adverse inference as to the Claimant’s credibility was drawn from the lack of clarity. The question is more one of reliability.

[16] However, the General Division did not otherwise consider the Claimant’s credibility or analyze the relative reliability of the evidence supporting one date or the other. The General Division provides no other justification for its choice decision to calculate the date that the Claimant first visited Service Canada using the Claimant’s estimate of how much later he received the ROE, rather than accepting the Claimant’s evidence that he had enquired at Service Canada within a week of losing his employment.

[17] A review of the record does not provide significant support for the General Division’s preference for calculating the date of the first visit: The “lack of clarity” appears to have more to do with the Claimant’s estimation of the time that lapsed between his visit to Service Canada and when he received the ROE, than it does with the date that he first visited Service Canada.

[18] Regarding how long it took to receive the ROE, the Claimant testified that he obtained it two or three weeks after his visit to Service Canada (at 10 minutes and 20 seconds of the audio recording (denoted 10:20), and then again at 11:00). At 11:13, the General Division states, “Three weeks later you got your ROE,” and then asks very directly, “Do you remember how many weeks it was?” The Claimant’s response at 11:20 of the recording is not completely clear but it is obviously tentative:

Um .. almost … nervous , almost - when it have to be right. I don’t… I don’t - the number. I think after two weeks I receive my record of employment.”

[19] There is another exchange at 18:20 where the General Division asks the Claimant to address the disparity between when he says he visited Service Canada and the date of the visit that could be calculated from the receipt of the ROE:

Q. … you had said two or three weeks later you got your ROE…

A. Then when I receive my ROE then right away I applied.

Q. Right but it looks like more like two months. The ROE was issued not two or three weeks later but it was issued two months later so did you go later to the Service Canada?

A. Yeah, Yeah. I go to later. Service Canada, yeah.

Q. I’m just trying to show you that it looks like it was two months later.

A. I went there. When I received the Record of Employment right away I applied but I don’t remember if 3 weeks, 4 weeks something like this. Exactly I don’t remember. But the days I apply—this day was one day before—I received the Record of Employment.

[20] Conversely, the Claimant’s testimony appears to have been clearer when he was testifying directly as to when he first visited Service Canada: “My service close (apparently referring to the business that he worked for). I go right away.” (14:30 of the recording)

[21] Even where the General Division leads the Claimant by suggesting a date that follows from the General Division’s calculations, the Claimant is unwavering on this point:

Q. If we say three weeks and not two (referring to the time from the initial visit to the receipt of the Record of Employment) that would mean that you only went to Service Canada in the middle of October…

A. “No. My service close September five. I think I go to Service Canada around 9th September 10th September –like this. Four days after the closing I go.” (16:15 of the recording)

[22] At 16:40, the Claimant said:

[…] my Record of Employment I think take four weeks, 3 weeks something like this. I wait to come. Then when I receive the Record of Employment, right away I applied. The day I received my Record of Employment, on this - the 17th, I apply for Service Canada […]

[23] I appreciate that the General Division made efforts to have the Claimant resolve the conflict that arose from the discrepancy between the date on which he said he first visited Service Canada, the length of time it took to receive the ROE, and when he might be expected to have received the ROE. However, it is apparent from the audio recording that the Claimant’s English is imperfect and, in my view, the nature of the questioning and the Claimant’s responses leave me in some doubt that the Claimant always understood the General Division’s questions.

[24] More particularly, I am concerned that the General Division, in seeking to have the Claimant address the discrepancy, explicitly offers the Claimant an opportunity to revise his testimony (at 16:15 and 18:20) but only as to the date when he first visited Service Canada. The General Division did not put any similar question to the Claimant that assumed that the Claimant’s testimony as to his initial visit date was correct and that sought clarification on his estimate of how long it took to receive the ROE.

[25] The exchange set out above at paragraph 20 is an example of how the Claimant may have had some difficulty providing clear testimony in response to the Member’s questions. At that point, it appears that the General Division was still attempting to reconcile the length of the delay in receiving the ROE with the first date on which the Claimant visited Service Canada, and that the Member’s questions were directed to whether the Claimant might have initially visited Service Canada on a date that was “later” than he had testified.

[26] It is possible that the General Division interpreted the Claimant’s response that he went to Service Canada “later” as a concession that his initial visit may have been later but it seems more likely that the Claimant took the Member to be asking about his later “i.e. second” visit to Service Canada after he received the ROE. The General Division then refers to “it” being two months later. This seems, in the sequence of questions, to be a reference to a visit to Service Canada and it could not have been the first visit if it was two months later. In the broader context, it would actually make more sense to understand the question as a return to the theme that the ROE came two months after the Service Canada visit.

[27] Regardless, the Claimant’s testimony was reasonably consistent when directly addressing the date that he first visited Service Canada, which he recalls as being within days of losing his job. He was also clear that he received his ROE in the mail and that he went back to Service Canada on the day, or within a day of, when he received it. He was then told to file online, which he did on November 23, 2016.

[28] In determining whether the Claimant had acted reasonably in delaying his application, the General Division selected a date of first contact with Service Contact that was seven weeks after the Claimant’s loss of employment. This date was based on the Claimant’s uncertain estimate of the time it took to receive his ROE. At the same time, the General Division ignored the Claimant’s unwavering testimony that placed his visit to Service Canada within days of his termination.

[29] I therefore consider it possible that the General Division’s determination as to the date when the Claimant first visited Service Canada and sought to apply for benefits was made in a perverse or capricious manner or without regard to the evidence before it. The General Division may have erred in the manner described in paragraph 58(1)(c) of the DESD Act.

[30] Alternatively, it may have been an error of law as set out in paragraph 58(1)(a) for the General Division to in having failed to explain the manner in which it resolved the inconsistency between the initial visit date to which the Claimant testified directly and the initial visit date that might be calculated from his testimony as to the delay between his visit and his receipt of his ROE.

[31] I find the Claimant has a reasonable chance of success on appeal.

[32] Given my finding above, it is not necessary that I consider the other issues or arguments the Claimant has raised.

Conclusion

[33] The application for leave to appeal is granted.

[34] At the hearing on the merits, the Claimant is free to argue additional grounds of appeal to those on which this application was decided.

[35] This decision granting leave to appeal does not presume the result of the appeal on the merits of the case.