Employment Insurance (EI)

Decision and reasons

Decision

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

Overview

[2] The Applicant, C. F. (Claimant), left her employment on February 23, 2017, because she believed she was being treated badly by her employer and it was affecting her health. She did not immediately apply for Employment Insurance benefits because she understood that she would not qualify unless she could prove that she had just cause for leaving her employment. She delayed filing an application to await the outcome of her Human Rights complaint. She believed it would help her establish that she was being harassed and discriminated against and that she therefore had just cause for leaving her employment. She finally applied for benefits on December 19, 2017.

[3] The Respondent, the Canada Employment Insurance Commission (Commission), determined that the Claimant’s qualifying period was from November 20, 2017, to December 16, 2017. The Commission denied her application on the basis that she had insufficient hours of insurable employment to qualify for benefits within the qualifying period. The Claimant sought a reconsideration in which she explained the reason for her delay, and she requested that the Commission take her qualifying period to be the period from February 23, 2016, to February 23, 2017. She also identified certain periods in which she had been unable to work due to illness, one of which fell within what the Commission had determined to be the qualifying period.

[4] After the Claimant requested a reconsideration, the Commission changed its decision, but only to allow a four-week extension of her qualifying period to offset her hospitalization from October 17, 2017, to November 23, 2017. This increased the Claimant’s hours of insurable employment but not by enough to allow the Claimant to qualify for benefits. The reconsideration decision granted an extension to the previously determined qualifying period, implying that the antedate request was denied.

[5] The Claimant appealed to the General Division of the Social Security Tribunal, arguing that she had good cause for the delay in her application. The General Division dismissed her appeal, and the Claimant now seeks leave to appeal to the Appeal Division.

[6] There is no reasonable chance of success. The Claimant selected all three possible grounds of appeal in her application for leave. However, the Claimant failed to point to any particular error of natural justice, she failed to make an arguable case that the General Division erred in law, and I have been unable to discover any error of fact.

Issues

[7] Is there an arguable case that the General Division failed to observe a principle of natural justice or made an error of jurisdiction under s. 58(1)(a) of the Department of Employment and Social Development Act (DESD Act)?

[8] Is there an arguable case that the General Division erred in law under s. 58(1)(b) of the DESD Act by requiring the Claimant to have taken reasonably prompt steps to protect her benefits or by failing to consider her claim for benefits under s. 21 of the Employment Insurance Act (EI Act)?

[9] Is there an arguable case that the General Division erred in law under s. 58(1)(b) of the DESD Act by requiring the Claimant to have applied at a time when she could not have qualified for benefits?

[10] Is there an arguable case that the General Division made an error of fact by failing to consider the evidence of the Claimant’s efforts by which she confirmed that she would not have qualified for regular or special benefits as of February 23, 2017?

[11] Is there an arguable case that the General Division made an error of fact under s. 58(1)(c) of the DESD Act by failing to consider the Claimant’s medical evidence?

Analysis

General principles

[12] 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 that is 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.

[13] In contrast, the Appeal Division cannot intervene in a General Division decision unless it finds that the General Division has made one of the errors described by the grounds of appeal in s. 58(1) of the DESD Act 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.

[14] 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.

[15] To grant this application for leave and permit the appeal process to move forward, I must find that there is a reasonable chance of success on one or more grounds of appeal. A reasonable chance of success has been equated to an arguable case.^{Footnote 1}

Issue 1: Is there an arguable case that the General Division failed to observe a principle of natural justice or made an error of jurisdiction?

[16] In her application for leave to appeal, the Claimant indicates that the General Division had failed to observe a principle of natural justice or acted beyond or refused to exercise its jurisdiction.

[17] Natural justice is not concerned with whether the decision or result is fair. It refers to the fairness of the decision-making process. Natural justice includes procedural protections, such as the right to an unbiased decision-maker and the right of parties to be heard and to know the case against them. The Claimant has not raised a concern about the adequacy of notice of the hearing, the pre-hearing disclosure of documents, the manner in which the hearing was conducted, her understanding of the process, or any other action or procedure that could have affected her right to be heard or to answer the case. Nor has she suggested that the General Division member was biased or had prejudged the matter. So, there is no arguable case that the General Division failed to observe a principle of natural justice.

[18] Similarly, the Claimant has not suggested in what manner the General Division may have exceeded its jurisdiction or failed to exercise its jurisdiction. So, the Claimant has not raised an arguable case that the General Division made an error of jurisdiction.

[19] Therefore, there is no arguable case that the General Division erred under s. 58(1)(a) of the DESD Act.

Issue 2: Is there an arguable case that the General Division erred in law by requiring the Claimant to have taken reasonably prompt steps to protect her benefits or by failing to consider her claim for benefits under s. 21 of the EI Act?

[20] The Claimant asserts that the General Division erred in law when it found that she was expected to take “‘reasonably prompt steps’ to protect her benefits.” She believes that the General Division should have considered her claim under s. 21(1) of the EI Act, and that she would not have to take reasonably prompt steps to protect s. 21 benefits.

[21] Section 21 of the EI Act addresses what are called special benefits, which would include benefits during periods of illness. Although the Claimant has argued that she was suffering from stress and anxiety at the time she left her employment, the Claimant’s application for benefits was an application for regular benefits and she sought an antedate of that regular benefit application. Accordingly, the Commission adjudicated her claim as a claim for regular benefits. The Claimant’s request to antedate her claim that was implied within her request for reconsideration remained a request to antedate her regular benefit claim. As a result, the Commission denied regular benefits, and an antedate of regular benefits. The issue of the Claimant’s entitlement to special benefits was not before the General Division.

[22] In any event, the requirement in s. 10(4) of the EI Act that a claimant show they have good cause throughout the entire period of the delay is just as applicable when an antedate is requested for special benefits as it is when the request is made for regular benefits. In previous decisions, the Federal Court of Appeal has held that a claimant must show that they did what a “reasonable and prudent person would have done in the same circumstances” to show good cause for delay in applying for benefits^{Footnote 2} and that a claimant must take “reasonably prompt steps to determine [the Claimant’s ] entitlement to Employment Insurance benefits^{Footnote 3} or “‘reasonably prompt steps’ to understand [his or her] obligations under the [EI Act]”.^{Footnote 4}. The principles taken from these decisons are just as applicable to the determination of good cause for special benefit claims as for regular benefit claims.

[23] There is no arguable case that the General Division erred in law by requiring the Claimant to have taken reasonably prompt steps to protect her benefits or by failing to consider her claim for benefits under s. 21(1) of the EI Act.

Issue 3: Is there an arguable case that the General Division erred in law by requiring the Claimant to have applied at a time when she would not have qualified for benefits?

[24] The Claimant also submits that she was familiar with the EI Act and Employment Insurance Regulations. She states that she had understood that she “would not have had any rights to receive benefits” because her employer had reported that she had voluntarily left employment^{Footnote 5}. The Claimant argues that the General Division erred by failing to acknowledge that she delayed her application because she could not have qualified for benefits earlier.

[25] If the Claimant understood that she could not have qualified for benefits because her employer had claimed that she quit her employment, she was mistaken. Claimants are not disqualified from receiving benefits because they quit (voluntarily left their employment). According to s. 30 of the EI Act, claimants are disqualified only if they leave their employment voluntarily without just cause.The Claimant had observed in her submissions that “the onus therefore, shifts to me the claimant to show that I had just cause for leaving.”^{Footnote 6} It appears from this that the Claimant did not understand that she could not qualify when she left her employment but that she presupposed that she could not prove she would qualify. She chose to delay her application until she had better evidence that she had just cause for leaving her employment.

[26] Investigating, collecting evidence, and weighing the evidence to make the initial decision as to whether the Claimant voluntarily left her employment without just cause is a task which is reserved to the Commission. The EI Act does not expect or allow claimants to defer their applications just because they are not yet ready to file them, and there are sound policy reasons for requiring claimants to file their applications in a timely manner. As noted by the Federal Court of Appeal in Canada (Attorney General) v. Chalk:^{Footnote 7}

[T]he rationale for the requirement that an application for benefits be made in a timely fashion is that the retroactive payment of benefits impedes the Commission’s ability to monitor the administration of the applicant’s benefits. As a result, issues such as availability for work, and the effect of any earnings which the applicant may have, cannot be dealt with as they occur.

[27] There is no arguable case that the General Division erred in law by requiring the Claimant to have applied at a time when she understood that she would not or could not have qualified for benefits.

[28] If the Claimant is arguing that the General Division erred in law by not accepting that it was reasonable for her to delay her application while she awaited additional evidence to come out of her Human Rights complaint, this is not an argument that addresses an extricable error of law. Rather, this is a question of mixed fact and law.^{Footnote 8} The Federal Court of Appeal in Quadir v. Canada (Attorney General) has confirmed that the Appeal Division does not have jurisdiction to consider questions of mixed fact and law.^{Footnote 9}

[29] There is no arguable case that the General Division erred in law under s. 58(1)(b) of the DESD Act by finding it unreasonable that the Claimant delayed her application for benefits.

Issue 4: Is there an arguable case that the General Division made an error of fact by failing to consider the evidence of the Claimant’s efforts by which she confirmed that she would not have qualified for regular or special benefits as of February 23, 2017?

[30] At paragraph 21 of the General Division decision, the General Division noted the Claimant’s submission that she had researched her eligibility and determined that she would not qualify for benefits. It nonetheless determined that the Claimant did not act as a reasonable person when she relied only on information gathered from the Service Canada website and that a reasonable person would have “inquired about her benefit entitlement or made her claim at the time she lost her employment and allowed the Commission to determine whether the reason for separation […] made her ineligible for benefits.”^{Footnote 10}

[31] The Claimant may disagree with the General Division’s conclusion that her actions were not what a reasonable and prudent person would have done, on the basis of her own research and her stated knowledge of, and experience with, Employment Insurance benefits, but this does not disclose a valid ground of appeal.^{Footnote 11}

[32] There is no arguable case that the General Division ignored her explanation as to why she believed she would not have qualified if she had applied earlier or that it erred under s. 58(1)(c) of the DESD Act.

Issue 5: Is there an arguable case that the General Division made an error of fact by failing to consider the Claimant’s medical evidence?

[33] The Claimant provided the General Division with a note from a doctor dated February 17, 2017, that states that she is unable to work from that date forward. She argues that this was additional evidence for why she left her employment but that the General Division did not take this into account.

[34] The General Division referred to this note at paragraph 23 of the decision. It also noted the Claimant’s testimony that her medical condition was not relevant to the reason she delayed her application. As a result, the General Division found that her medical condition did not prevent her from taking action when her employment ended. This was the issue on appeal. The reason the Claimant left her employment was not the issue on appeal. There is no arguable case that the General Division made an erroneous finding of fact by failing to consider how the medical evidence might substantiate the Claimant’s reasons for leaving her employment.

[35] The appeal has no reasonable chance of success.

Conclusion

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