Decision and Reasons
Decision
[1] The Tribunal grants leave to appeal to the Appeal Division.
Overview
[2] The Applicant, N. M. (Claimant), established a claim for Employment Insurance benefits taking effect on December 13, 2015. He reported no earnings when he submitted his reports from January 24 to April 3, 2016. The employer issued a record of employment stating that the Claimant worked from December 28, 2015, to March 21, 2016. The Respondent, the Canada Employment Insurance Commission (Commission), notified the Claimant that the money he received from his employer as salary constituted earnings and that these earnings must be allocated to each week that he worked. It also imposed a penalty on him because he made five false or misleading statements. The Commission also informed the Claimant that it had issued him a notice of serious violation.
[3] In his request for reconsideration, the Claimant stated that his partner made false declarations after he gave her his access code. He was not familiar with the Internet and he asked her to make his declarations for him, even after their separation. He declared that he did not know that his partner was not declaring his employment income. The Commission informed him that it was upholding its initial decision, except regarding the penalty, which it reduced.
[4] The Claimant appealed the Commission’s decision to the General Division.
[5] In its decision, the General Division found that the Claimant’s partner was acting on his behalf when she knowingly made false declarations and that he was responsible under s. 38(1) of the Employment Insurance Act. The General Division also found that the Commission had exercised its discretion judiciously by imposing penalties on the Claimant and by issuing him a notice of severe violation.
[6] The Claimant is now seeking leave from the Tribunal to appeal the General Division decision.
[7] In support of his application for leave to appeal, the Claimant argues that the General Division erred in law because its analysis does not comply with the teachings of the Federal Court of Appeal with regard to a case involving a claimant who did not make his own declarations. He argues that the General Division also erred in its evaluation of the burden of proof with regard to false declarations.
[8] The Tribunal must decide whether there is an arguable case that the General Division committed a reviewable error that might give the appeal a reasonable chance of success.
[9] The Tribunal grants leave to appeal because at least one of the grounds of appeal addressed by the Claimant has a reasonable chance of success on appeal.
Issue
[10] In his grounds of appeal, has the Claimant raised a reviewable error committed by the General Division that may have a reasonable chance of success on appeal?
Analysis
[11] Subsection 58(1) of the Department of Employment and Social Development Act (DESD Act) sets out the only grounds of appeal for a General Division decision. These reviewable errors are the following: 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.
[12] A leave to appeal proceeding 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 his case, but he must establish that his appeal has a reasonable chance of success. In other words, he must show that there is a reviewable error on the basis of which the appeal has a reasonable chance of success.
[13] The Tribunal will grant leave to appeal if it is satisfied that at least one of the Claimant’s grounds of appeal has a reasonable chance of success.
[14] This means that the Tribunal must, in accordance with s. 58(1) of the DESD Act, be in a position to determine whether there is a question of natural justice, jurisdiction, law, or fact that may lead to the setting aside of the decision under review.
Issue: In his application for leave to appeal, has the Claimant raised a reviewable error committed by the General Division that may have a reasonable chance of success on appeal?
[15] In his application for leave to appeal, the Claimant cites ss. 58(1)(a) and 58(1)(b) of the DESD Act.
[16] The Claimant argues that the General Division erred in law by not respecting the Federal Court of Appeal’s teachings with regard to a case involving a claimant who did not make his own declarations. The Claimant submits that the General Division erred by misinterpreting the burden of proof regarding false declarations. He argues that the General Division’s conclusions do not take into account the evidence that shows that he was unaware of the false declarations that his partner had made.
[17] Upon review of the appeal file, the General Division 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 a question of fact or law that may lead to the setting aside of the decision under review.
[18] The Tribunal grants leave to appeal to the Appeal Division.
Representative:
Gilbert Nadon, for the Applicant