Employment Insurance (EI)

Decision and Reasons

Decision

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

Overview

[2] The Applicant, M. D. (Claimant), had a customer service position with the employer. She was terminated because she left the employer’s business with merchandise that had not been paid for. The Respondent (Commission) informed the employer that it had reactivated the Claimant’s claim for Employment Insurance benefits. The employer requested a reconsideration of that decision. The Commission then changed its decision and declared the Claimant excluded from benefits because she had lost her employment because of her own misconduct. An overpayment was therefore established. The Claimant appealed this decision to the General Division of the Tribunal.

[3] The General Division found that the Claimant lost her employment because of her misconduct. It found that leaving with the employer’s merchandise that had not been paid for is an act of such severity that the Claimant must have known that she would be terminated. Furthermore, the General Division found that termination was the logical outcome of the Claimant’s behaviour. 

[4] The Claimant now applies to the Tribunal for leave to appeal the General Division’s decision.

[5] In support of her application for leave to appeal, the Claimant argued that the General Division erred in law in its interpretation of the notion of misconduct within the meaning of the Employment Insurance Act. She also maintains that the General Division overlooked certain evidence and that it had erred in its assessment of her credibility.

[6] The Tribunal must decide whether the Claimant’s appeal has a reasonable chance of success based on a reviewable error made by the General Division.

[7] The Tribunal grants leave to appeal because the appeal has a reasonable chance of success based on at least one of the grounds of appeal raised by the Claimant.

Issue

[8] Does the Claimant’s appeal have a reasonable chance of success based on a reviewable error made by the General Division? 

Analysis

[9] Subsection 58(1) of the Department of Employment and Social Development Act (DESDA) specifies the only grounds of appeal of a General Division decision. The reviewable errors are that the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; erred in law in making its decision, whether or not the error appears on the face of the record; or 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.

[10] An application for leave to appeal is a preliminary step to a hearing on the merits. It is an initial hurdle for the Claimant 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 Claimant does not have to prove her case; she must instead establish that the appeal has a reasonable chance of success. In other words, the Claimant must show that there is arguably some reviewable error on which the appeal might succeed.

[11] The Tribunal will grant leave to appeal if it is satisfied that at least one of the grounds of appeal cited by the Claimant has a reasonable chance of success.

[12] This means that the Tribunal must be in a position to determine whether there is an issue of natural justice, jurisdiction, law, or fact that may lead to the setting aside of the decision under review, in accordance with s. 58(1) of the DESDA.

Issue: Does the Claimant’s appeal have a reasonable chance of success based on a reviewable error made by the General Division?

[13] In support of her application for leave to appeal, the Claimant invokes s. 58(1)(b) of the DESDA.

[14] The Claimant maintains that the General Division assigned disproportionate weight to her action. She claims that, in doing so, the General Division ignored Federal Court of Appeal jurisprudence on misconduct, which requires evidence of a psychological element. This constitutes an error of law. She argues that nothing in the record indicates that the action was wilful. The Claimant also maintains that the General Division overlooked submitted evidence on the absence of a causal relationship. Finally, the Claimant maintains that the General Division erred by attacking her credibility based on trivial facts and its misunderstanding of the action.

[15] The Tribunal is of the opinion that the Claimant raises an arguable issue of law regarding the General Division’s interpretation of misconduct.

[16] 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 Claimant has raised an issue of law that may lead to the setting aside of the decision under review.

Conclusion

[17] The Tribunal grants leave to appeal to the Appeal Division.