Employment Insurance (EI)

Decision and Reasons

Decision

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

Introduction

[2] On October 27, 2017, the General Division of the Tribunal found that the Applicant had not experienced an interruption of earnings and that he failed to qualify for Employment Insurance benefits under sections 7, 48, and 49 of the Employment Insurance Act and subsection 14(1) of the Employment Insurance Regulations (Regulations).

[3] On December 1, 2017, the Applicant filed an application for leave to appeal after receiving the General Division decision on November 6, 2017.

Issue

[4] The Tribunal must determine 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 be brought only 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 “leave 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 that:

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.

[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 be in a position to determine, in accordance with subsection 58(1) of the DESD Act, whether there is a question of law, fact or jurisdiction that might 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] The Applicant seeks leave to appeal under paragraphs 58(1)b) and c) of the DESD Act. The Applicant argues that the General Division committed an error of law in its interpretation of paragraph 36(10)d) of the Regulations and in concluding that there had been no interruption of earnings.

[13] The Applicant argues that the evidence in the case shows that the use of a cellular telephone does not arise from work carried out by the Applicant over the period in question, but rather an economic choice on the part of the company. He argues that the General Division decision flouted the employer’s reasons for maintaining the telephone service.

[14] 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 a question that may justify setting aside the decision under review.

Conclusion

[15] Leave to appeal is granted.