Employment Insurance (EI)

Decision and Reasons

Decision

[1] The appeal is dismissed.

Overview

[2] The Appellant, T. L. (Claimant), left her employment with a fast-food restaurant in July 2016 to return to school. She applied for Employment Insurance regular benefits.

[3] The Respondent, the Canada Employment Insurance Commission (Commission), determined that it was unable to pay the Claimant regular benefits because it found that she had voluntarily left her employment without just cause and that leaving was not her only reasonable alternative. This resulted in a disqualification and an overpayment. The Commission also determined that the Claimant was taking a training course and that she had failed to prove that she was available for work. The Commission denied the Claimant’s request for a write-off of the overpayment and advised her that she could file an application for judicial review with the Federal Court of Canada.

[4] The Claimant appealed the Commission’s decision to the General Division of the Social Security Tribunal of Canada. On May 2, 2018, the General Division summarily dismissed the Claimant’s appeal of the Commission’s decision. The Claimant is now appealing the General Division’s decision to summarily dismiss her claim. She raises several grounds, but the crux of her appeal is that the General Division erred in its interpretation of s. 112.1 of the Employment Insurance Act.

[5] I must decide whether the General Division erred on any of the grounds that the Claimant has cited. For the reasons that follow, I find that the General Division did not err.

[6] No leave is necessary in the case of an appeal brought under s. 53(3) of the Department of Employment and Social Development Act (DESDA), because there is an appeal as of right when dealing with a summary dismissal from the General Division.

Preliminary issues

[7] There are two preliminary issues: the first concerns the appeals process and the second concerns the admissibility of any new evidence.

Appeals process

[8] The Claimant submits that she received conflicting information regarding the appeals process. She notes that the letter dated May 3, 2018, from the Social Security Tribunal indicates that if she wished to appeal the General Division’s decision, she could submit an application to appeal to the Appeal Division. However, she notes that the Tribunal’s letter of March 16, 2018, indicates that the General Division member was considering summarily dismissing the appeal because “the proper recourse to appeal a decision denying the request for a debt write-off is an application for judicial review of the decision with the Federal Court – Trial Division [sic].”

[9] The Claimant asserts that the information is conflicting because, on the one hand, the Tribunal is directing her to its Appeal Division and, on the other hand, also directs her to the Federal Court of Canada.

[10] There is no conflicting information in these directions. The General Division determined that it did not have the jurisdiction to provide the relief that the Claimant wanted. It advised that the proper avenue for an appeal of the Commission’s reconsideration decision was to the Federal Court. At the same time, if the Claimant wanted to appeal the General Division’s decision, the appropriate avenue was to the Appeal Division.

[11] There are two distinct decisions that the Claimant wishes to appeal: one is the Commission’s reconsideration decision, and the other is the General Division’s decision.

[12] The Claimant’s appeal of the General Division’s decision is properly before me. Section 55 of the DESDA provides that any decision of the General Division may be appealed to the Appeal Division by any person who is the subject of the decision and by any other prescribed person.

New evidence

[13] The Claimant intends to rely on new evidence in support of her appeal. However, new evidence generally is not permitted on an appeal, except in limited circumstances.^{Footnote 1} Some of the “new evidence” that the Claimant relies on consists of copies of correspondence that made up the hearing file before the General Division and extracts from the Employment Insurance Act. These documents were before the General Division, so they are properly before me and there is no issue regarding their admissibility.

[14] The Claimant has filed documents titled “Recherche / Corriger RE Régulier.”^{Footnote 2} These documents are “new” in the sense that copies had not been available in the proceedings before the General Division. The Claimant argues that the documents should be admissible because these documents were missing from her file in the General Division proceedings. However, she should have raised this issue before the General Division issued its decision and shown what steps she had taken to try to obtain those documents. The fact that documents may have been “missing” from the hearing file before the General Division does not thereby render documents subsequently admissible if they did exist at the time and the Claimant did not take any steps to try to obtain copies until after the General Division rendered its decision. If the Commission did not have copies of these documents or was unprepared to produce them to the Claimant, she could have prepared a written statement setting out what she believed to be the contents of those documents. On this basis, I find that this new evidence is inadmissible.

Issues

[15] Based on the submissions before me, the issues are as follows:

1. Issue 1: Did the General Division err in law in its interpretation of s. 112.1 of the Employment Insurance Act?
2. Issue 2: Did the General Division refuse to exercise its jurisdiction under s. 3(1)(b) of the Social Security Tribunal Regulations?
3. Issue 3: Did the General Division err in law by failing to consider the defence of due diligence?
4. Issue 4: Did the General Division fail to observe a principle of natural justice by neglecting to ensure whether the Claimant had a complete file?

Analysis

[16] Subsection 58(1) of the DESDA sets out the grounds of appeal as being limited to 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; 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.

Issue 1: Did the General Division err in law in its interpretation of s. 112.1 of the Employment Insurance Act?

[17] No. I find that the General Division did not err in law when it interpreted s. 112.1 of the Employment Insurance Act.

[18] The Claimant argues that the Appeal Division should consider her appeal and render a decision regarding her request for a write-off of the debt. She submits that the Appeal Division—and, for that matter, the General Division—has the jurisdiction to render such a decision. For one, she argues that the General Division erred in its interpretation of s. 112.1; she claims that the section does not preclude the General Division from making a decision on her request for a write-off. Furthermore, she argues that s. 112.1 of the Employment Insurance Act applies only in the event of penalties and that because there are no penalties in her case, the section does not apply.

[19] Section 112.1 of the Employment Insurance Act reads:

112.1 Decision not reviewable – a Decision of the Commission made under the Employment Insurance Regulations respecting the writing off of any penalty owing, amount payable or interest accrued on any penalty owing or amount payable is not subject to review under section 112.

[20] The Social Security Tribunal derives its jurisdiction or authority with regard to the Employment Insurance Act from s. 113 of the Employment Insurance Act. That section states that a party who is dissatisfied with the decision of the Commission made under s. 112 may appeal the decision to the Social Security Tribunal. The Claimant argues that s. 113 applies only if the Commission made a decision in the first instance. She notes that the General Division determined at paragraph 23 of its decision that the Commission had not made a decision and, therefore, a reconsideration of such a decision had not been made. The General Division concluded that because the Commission had not made a decision in the first instance, it did not have any authority to hear an appeal. From this, the Claimant essentially argues that because the Commission did not make a decision, the Appeal Division can fill the void to render one.

[21] The Claimant submits that s. 112.1 of the Employment Insurance Act does not restrict either the General Division or the Appeal Division from ordering write-offs of any debts. The Claimant argues that the restriction set out under s. 112.1 of the Employment Insurance Act applies only in the event of penalties. In this regard, she argues that the General Division erred in its interpretation of the section when it wrote: “even if it is demonstrated that the Commission did issue an initial decision with respect to the Claimant’s request for write-off, the proper recourse to challenge such a decision would be an action before the Federal Court of Canada.”^{Footnote 3}

[22] It is clear from an examination of the section that it applies to decisions regarding the writing off of (1) any penalty owing, (2) amount payable, or (3) interest accrued on any penalty owing or on any amount payable. In other words, the section is not restricted to penalties. The General Division’s interpretation of the section is correct. The Claimant is unable to rely on this section for a review of any decision regarding the writing off of any amounts payable, such as the overpayment in this case.

[23] The Claimant argues that the Appeal Division can fill the void where the Commission did not make a decision. However, neither the Appeal Division nor the General Division has any inherent jurisdiction to write off any overpayment. It is therefore moot whether the Commission made a decision in the first instance.

Issue 2: Did the General Division refuse to exercise its jurisdiction under s. 3(1)(b) of the Social Security Tribunal Regulations?

[24] No. I find that the General Division did not err in refusing to exercise its jurisdiction under s. 3(1)(b) of the Social Security Tribunal Regulations.

[25] The Claimant submits that the Appeal Division has discretionary authority under s. 3(1)(b) of the Social Security Tribunal Regulations to vary any provisions under the Employment Insurance Act. She claims that this power extends to ordering write-offs. She argues that the General Division refused to exercise its jurisdiction under s. 58(1)(a) of the DESDA by refusing to order a write-off under s. 3(1)(b) of the Social Security Tribunal Regulations.

[26] Paragraph 3(1)(b) of the Social Security Tribunal Regulations reads as follows: “The Tribunal may, if there are special circumstances, vary a provision of these Regulations or dispense a party from compliance with a provision.”

[27] However, the paragraph is limited in its applicability and does not empower the Social Security Tribunal to order write-offs of any overpayment, as the Claimant suggests. The paragraph is specific to the Social Security Tribunal Regulations. The words “these Regulations” define which provisions apply and can be varied. Any provision(s) that the Social Security Tribunal sees fit to vary are those under the Social Security Tribunal Regulations, not provisions that fall under other pieces of legislation, such as the Employment Insurance Act or the Social Security Tribunal Regulations. As a result, I find that the General Division did not err in refusing to exercise its jurisdiction under s. 3(1)(b) of the Social Security Tribunal Regulations.

Issue 3: Did the General Division err in law by failing to consider the defence of due diligence?

[28] No. I find that the General Division did not err in law by failing to consider the defence of due diligence.

[29] The Claimant contends that the General Division erred in law by failing to consider the availability of the defence of due diligence in her case. Although she did not specifically make submissions on the defence, she noted that she had “been diligent and reasonable in every step.”^{Footnote 4}

[30] The Claimant argues that the defence of due diligence should be available to her under the Employment Insurance Act, otherwise it would be discriminatory. She notes that s. 46.1(3) of the Employment Insurance Act provides a defence of due diligence to directors of a corporation whereby directors can escape liability for a penalty if they exercise the degree of care, diligence, and skill that a reasonably prudent person would have exercised in comparable circumstances to prevent the act or omission for which the penalty is imposed. She claims that she exercised due diligence by contacting the Commission several times.

[31] The General Division did not consider the issue of due diligence because the Claimant had not specifically brought the matter to its attention. Furthermore, outside of s. 46.1(3), there are no other provisions within the Employment Insurance Act that provide for a defence of due diligence and nothing that would have triggered consideration of the defence. In this regard, I am not convinced that the General Division erred by failing to consider this particular defence in the Claimant’s case.

[32] The Claimant argues that there is discrimination under the law, because the defence is available to directors and unavailable to her. If the Claimant is attempting to argue that the Employment Insurance Act is discriminatory under s. 15 of the Canadian Charter of Rights and Freedoms because it fails to provide a defence of due diligence to all applicants other than to directors, her submissions come too late in the proceedings. Generally, I am unprepared to exercise any discretion and consider Charter arguments for the first time on appeal if the Claimant had not previously raised those particular arguments before the General Division, and particularly when no evidentiary foundation has been laid by the Claimant.

[33] I note that s. 46.1(1) of the Employment Insurance Act makes directors liable under ss. 38 or 39 for acts or omissions involving fraud or misrepresentations. The defence is available to directors if they took every measure to try to avoid the offence or omission for which the penalty is imposed. The defence is unavailable to individuals in respect of penalties imposed under ss. 38 or 39 if there have been misrepresentations or fraud of the nature set out in those sections.

[34] That is not the case here because there are no allegations of fraud or misrepresentations against the Claimant and no penalties have been assessed against her. The Commission is simply requiring that the Claimant repay an overpayment of benefits to which it determined she was not entitled. To be clear, the overpayment arose through no fault of the Claimant’s, but unfortunately for the Claimant, the Employment Insurance Act does not take this into account.

Issue 4: Did the General Division fail to observe a principle of natural justice by neglecting to ensure that the Claimant had a complete file?

[35] No. The General Division did not fail to observe a principle of natural justice by neglecting to ensure that she had a complete file. The parties are each responsible for making their own cases and submitting whatever evidence is required to prove their case. There is no duty on the General Division to ensure the completeness of the evidence before them. Besides, it is unclear how the General Division is to know what evidence exists when it is independent and unrelated to the parties.

[36] The Claimant suggests that she did not have a fair hearing because the Commission failed to provide her with a complete file copy. In particular, the hearing file does not document all of her communications with the Commission. She argues that the information is vital to establishing that the Commission consistently violated her rights to receive information but, more importantly, it would have established that the debt arose because of the Commission’s errors. She argues that she should not be held responsible for the Commission’s errors that resulted in the debt.

[37] As I have noted above, new evidence is generally not admissible on appeal to the Appeal Division, except in limited circumstances.^{Footnote 5} In Sharma, the Federal Court of Appeal identified the three exceptions. Although Sharma dealt with an application for judicial review, the same principles apply. The Appeal Division is not to consider new evidence that should have been placed before the General Division. The Court of Appeal also determined that the new evidence should be excluded if it “does not provide general background information, highlight the complete lack of evidence before the decision-maker on a particular finding, or point out defects not evident in the record.” The Court of Appeal ruled the new evidence inadmissible because the new evidence provided additional information that was available at the time of the hearing before the General Division.

[38] The Claimant asserts that there was documentation missing from the file in the proceedings before the General Division and that once she learned that it was missing, she requested copies from the Commission. Much like Sharma, documentation of this nature is inadmissible because it would have been available at the time the General Division rendered its decision, if the Claimant had taken steps to obtain it in a timely manner. When the Social Security Tribunal notified the Claimant of its intention to proceed by way of summary dismissal, the Claimant could have requested an extension of time to obtain the documents.

[39] As it is, the Claimant has been unable to obtain these records from the Commission. Even so, the Claimant could have provided the General Division with statements attesting to the conversations that she held with the Commission.

[40] In her letter dated June 4, 2018, the Claimant states that she requested a copy of her file from the Tribunal (although she does not specify when she made this request). She received the requested information on May 25, 2018, and noticed that the file contains inaccuracies and that notes of conversations are still missing. She argues that these conversations are vital to establishing her entitlement to a write-off of the debt:

1. Some of the missing documentation would have showed that she received conflicting information in conversations with two different agents from the Commission. She claims that this establishes that the Commission is unable to interpret its own policies. She argues that the Commission should be responsible for any errors on her file.
2. One of her conversations establishes that the Commission misled her and gave her inaccurate information upon which she relied.
3. In another conversation, an agent advised her against going to the Federal Court of Canada because it would be sufficient for her to appeal the Commission’s reconsideration decision directly to the General Division.
4. In another conversation, she sought to confirm that the benefits she had received in 2016 were appropriate, given that she had been previously advised that she was unable to receive any benefits. She relies on this conversation to prove that she had exercised due diligence.
5. The documentation suggests that an agent contacted her twice without any success and that she failed to make any attempts to contact the agent in response. The Claimant strenuously denies this, claiming that she tried to call him multiple times. The Claimant asserts that her multiple attempts to contact the Commission also show that she exercised due diligence.

[41] Even if this documentation—or statements attesting to these conversations—had been before the General Division, it would have been immaterial to the issue of the Claimant’s debt or to her request for a write-off by the General Division. The underlying issue before the General Division was whether it had any jurisdiction to order a write-off of the debt: neither due diligence by the Claimant nor any errors committed by the Commission conferred any jurisdiction on the General Division to waive the debt, whether under s. 112.1 of the Employment Insurance Act, s. 3(1)(b) of the Social Security Tribunal Regulations,or any other legislative provisions. Section 112.1 of the Employment Insurance Act describes the types of Commission decisions that are not subject to review. The section does not provide for any exceptions, even where claimants show due diligence or where the Commission might have made any errors or misinformed claimants.

[42] The Claimant maintains that there was a breach of the principles of natural justice. However, natural justice is concerned with ensuring that claimants have a fair opportunity to present their case and that proceedings are fair and free of any bias.

[43] Under s. 58(1)(a) of the DESDA, a breach of the principles of natural justice relates to issues of procedural fairness before the General Division. That is not the case here, because the Claimant’s allegations do not address any issues of procedural fairness or natural justice as they relate to the General Division. The General Division was neither responsible for responding to the Claimant’s requests for personal information, nor for ensuring the completeness of her case or the accuracy of any documentation. The Claimant has not pointed to or provided any details to suggest that the General Division might have deprived her of an opportunity to fully and fairly present her case or that it might have exhibited any bias against her. Indeed, the evidence in the hearing file shows that the General Division invited submissions from the Claimant, including any submissions explaining why her appeal had a reasonable chance of success.

Relief sought

[44] The Claimant argues that the Appeal Division should consider her appeal and render a decision regarding her request for a write-off of the debt. She submits that the Appeal Division—and, for that matter, the General Division—has wide discretionary authority to render such a decision. She argues that such an outcome would be appropriate because she is not responsible for creating the overpayment. Indeed, she had been quite diligent in contacting the Commission to ensure that it had appropriately made payments to her.

[45] As I have indicated above, neither section 112.1 of the Employment Insurance Act nor s. 3(1)(b) of the Social Security Tribunal Regulations confer jurisdiction on the Appeal Division—or the General Division—to grant the relief that the Claimant is asking for. Similarly, there is no defence of due diligence available to her under the Employment Insurance Act. Finally, the fact that there was missing information from the hearing file in the proceedings before the General Division was an irrelevant consideration because that information had no bearing on the outcome.

Conclusion

[46] I find no error in the General Division’s interpretation and application of s. 112.1 of the Employment Insurance Act. I also find that the General Division did not have any jurisdiction to order a write-off under s. 3(1)(b) of the Social Security Tribunal Regulations. The defence of due diligence was not available, either, so the General Division did not fail to consider it.

[47] I find that the General Division properly concluded that the appeal had no reasonable chance of success and that it properly summarily dismissed the matter. Accordingly, the appeal before me is dismissed. The Claimant’s recourse lies elsewhere.