Employment Insurance (EI)

Decision and reasons

Decision

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

Overview

[2] The Applicant, N. M. (Claimant), was assessed a warning and required to repay an overpayment because of a failure to report earnings in 2010. The Claimant requested a reconsideration, but the Respondent, the Canada Employment Insurance Commission (Commission), understood him to be seeking reconsideration only of the warning and did not reconsider his overpayment. The Claimant appealed to the General Division of the Social Security Tribunal, which allowed his appeal on the warning but found that it did not have jurisdiction to consider his challenge to the overpayment. The General Division recommended that the Commission reconsider its decision on the overpayment, and it did so, but it maintained its original decision. The Claimant appealed again to the General Division, but his appeal was dismissed. He now seeks leave to appeal to the Appeal Division.

[3] The Claimant has no reasonable chance of success on appeal. The General Division did not fail to observe a principle of natural justice in its consideration of the Claimant’s appeal and it did not err in jurisdiction or law by considering the issue before it to be the issue of the overpayment.

Issues

[4] Is there an arguable case that the General Division failed to observe a principle of natural justice?

[5] Is there an arguable case that the General Division made an error of jurisdiction or of law by considering only the question of whether the overpayment was properly determined?

Analysis

[6] The Appeal Division’s task is more restricted than that of the General Division. The General Division is empowered to consider and weigh the evidence before it and to make findings of fact. The General Division then applies the law to these facts to reach conclusions on the substantive issues raised by the appeal.

[7] In contrast, the Appeal Division cannot intervene in a General Division decision unless it can find that the General Division has made one of the types of errors described by the grounds of appeal in s. 58(1) of the Department of Employment and Social Development Act (DESD Act) and set out below:

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; or
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] Unless the General Division erred in one of these ways, the appeal cannot succeed, even if the Appeal Division disagrees with the General Division’s conclusion.

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

Is there an arguable case that the General Division failed to observe a principle of natural justice?

[10] Natural justice refers to fairness of process and includes procedural protections such as the right to an unbiased decision maker and the right of a party to be heard and to know the case against him or her.

[11] The Claimant’s concern with procedural fairness relates to the Commission’s failure to consider his overpayment when he first requested a reconsideration. However, I may only intervene if the General Division failed to observe a principle of natural justice (or there was a procedural fairness issue) during the General Division hearing that resulted in the decision that the Claimant now wishes to appeal, or in the process directly related to that hearing.

[12] I have no jurisdiction to address any defect or claim of defect in the Commission’s processes or in the process that resulted in the first General Division hearing. The Claimant did not point to any breach of natural justice by the General Division in the decision he seeks to appeal, and there is therefore no arguable case that the General Division failed to observe a principle of natural justice under s. 58(1)(a) of the DESD Act.

[13] As an aside, it would appear that the Claimant understood the first General Division decision to be suggesting that it would have accepted the Claimant’s appeal on the overpayment, if the issue had then been before the General Division. It is important that the Claimant understand that the General Division’s recommendation that the Commission reconsider its decision does not mean that the General Division was recommending that the Commission change its decision. As noted by the second General Division decision, “[t]here is no indication in that decision that the member intended to allow his appeal regarding the overpayment because it was not before her to decide.” The General Division had only suggested that the Commission follow through on the reconsideration process and obtain a decision on the issue of overpayment. This was the only avenue by which the Claimant could bring the issue back to the General Division on appeal.

Did the General Division make an error of jurisdiction or of law by considering only the question of whether the overpayment was properly determined?

[14] Just as the first General Division member could only consider the issue that had been reconsidered by the Commission, the General Division member in the decision that is the subject of this application was authorized to address only the issue that was reconsidered in the letter under appeal.

[15] The October 30, 2017, reconsideration letter that was before the General Division concerned the overpayment only. There was therefore no other issue over which the General Division could take jurisdiction. There is no arguable case that the General Division erred in law by not considering whether the Commission’s actions were procedurally fair.

[16] I note that the General Division addressed the Claimant’s argument that he had been denied procedural fairness by his inability to have the overpayment considered in his first General Division hearing. In the second General Division decision, the General Division found that there could be no breach of procedural fairness because the issue was then properly before it, and the Claimant had the opportunity to address the issue in those proceedings.

[17] The Claimant has asserted that he should not have to repay the overpayment because of the amount of time that had lapsed. In response to this, the General Division considered whether the Commission had exceeded the statutory time frame for reconsidering its decision, but it found that the reconsideration decision of October 30, 2017, in which the overpayment was maintained, was still within the time permitted by s. 52(5) of the Employment Insurance Act (EI Act). There is no arguable case that the General Division erred in law in applying s. 52(5) of the EI Act.

[18] There is no arguable case that the General Division erred in jurisdiction under s. 58(1)(a) or erred in law under s. 58(1)(b) of the DESD Act.

[19] Following the direction of the Federal Court in such cases as Karadeolian,^{Footnote 2} I have searched the record for other evidence that the General Division may have overlooked or misunderstood when finding that the Claimant is responsible for repaying the overpayment. I note that the essential facts were not in dispute and that the evidence was not ignored or misunderstood. The debt was properly established, and the General Division was correct that it had no jurisdiction to write off, forgive or extinguish it.

[20] There is no arguable case that the General Division based its decision on an erroneous finding of fact that was made in a perverse or capricious manner or without regard for the material before it under s. 58(1)(c) of the DESD Act.

[21] The Claimant has no reasonable chance of success on appeal.

Conclusion

[22] The application for leave to appeal is refused.