Employment Insurance (EI)

Decision and reasons

Decision

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

Overview

[2] The Applicant, J. M. (Claimant), was laid off. He applied for regular Employment Insurance Benefits as a result. A benefit period was established effective July 3, 2016, and the Claimant received regular and sickness benefits until the week ending March 4, 2017.

[3] The Claimant was then incarcerated between March 2, 2017, and November 1, 2017. He did not receive benefits during this period. On his release, he reapplied for benefits, but a benefit period could not be established because he had not accumulated enough hours of insurable employment during his qualifying period.

[4] The Claimant then asked the Commission to extend his July 2016 benefit period so that he could access the sickness benefits that he did not receive because of his incarceration. The Commission refused this request because the Claimant did not meet the criteria set by the Employment Insurance Act (EI Act). The Claimant asked the Commission to reconsider the decision, but it maintained its initial decision. The Claimant appealed the Commission’s decision to the General Division.

[5] The General Division determined that the Claimant failed to establish that he has not been found guilty of the offence for which he was detained. As a result, he is not entitled to an extension of his benefit period under section 10(10)(a) of the EI Act.

[6] In support of his application for leave to appeal, the Claimant argues that he does not understand why he has not been entitled to weeks of sickness benefits since his release from prison. He believes he has accumulated the hours required. He adds that he lost everything and had to declare bankruptcy in 2016. He argues that he is now 68 years old and is no longer able to work. He would like to know where his financial assistance is.

[7] On September 18, 2018, the Tribunal asked the Claimant to explain in detail why he was seeking leave to appeal the decision rendered by the General Division. In his response, the Claimant invited the Tribunal to carefully reread the explanations already provided in his application for leave to appeal.

[8] The Tribunal must determine whether it is arguable that the General Division made a reviewable error based on which the appeal has a reasonable chance of success.

[9] The Tribunal refuses leave to appeal because the appeal has no reasonable chance of success based on any of the grounds of appeal raised by the Claimant.

Issue

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

Analysis

[11] Section 58(1) of the Department of Employment and Social Development Act (DESD Act) specifies the only grounds of appeal of a General Division decision. These 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 had made in a perverse or capricious manner or without regard for the material before it.

[12] 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 his case; he must instead establish that his appeal has a reasonable chance of success. In other words, he must show that there is arguably a reviewable error based on which the appeal might succeed.

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

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

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

[15] In support of his application for leave to appeal, the Claimant declared that he does not understand why he has not been entitled to weeks of sickness benefits since his release from prison. He believes he has accumulated the hours required. He adds that he lost everything and had to declare bankruptcy in 2016. He argues that he is now 68 years old and that he is no longer able to work. He would like to know where his financial support is.

[16] The Tribunal asked the Claimant to explain in detail why he was seeking leave to appeal the decision rendered by the General Division. In his response, the Claimant invited the Tribunal to carefully reread the explanations previously provided in his application for leave to appeal.

[17] As determined by the General Division, the Claimant has not established that he was not found guilty of the offence for which he was detained. As a result, he is not entitled to extend his benefit period under section 10(10)(a) of the EI Act.

[18] As the General Division also underscored, the Commission reviewed the Claimant’s new application for sickness benefits after his release on November 3, 2017, before considering the extension of the benefit period starting July 3, 2016. The Commission determined, however, that the Claimant had not met the necessary conditions for receiving benefits at that time because he did not accumulate any hours of insurable employment during his qualifying period from October 30, 2016, to October 28, 2017. The Claimant also confirmed before the General Division that he has not worked since his lay-off from X in July 2016.

[19] The Tribunal finds that, despite the Tribunal’s specific request of September 18, 2018, the Claimant has not raised any issue of law, fact, or jurisdiction that might lead to the setting aside of the decision under review.

[20] After reviewing 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 no reasonable chance of success.

Conclusion

[21] The Tribunal refuses leave to appeal to the Appeal Division.