Employment Insurance (EI)

Decision and reasons

Decision

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

Background

[2] The Applicant, D. B. (Claimant), worked on a seasonal basis as a bus driver for a transportation company. While working on a part-time basis, he applied for Employment Insurance regular benefits. In a letter dated November 27, 2017, the Respondent, the Canada Employment Insurance Commission (Commission), determined that it was unable to pay him Employment Insurance benefits from October 23, 2017, because, other than his part-time employment, he had failed to prove his availability for other work.^{Footnote 1}

[3] The Claimant sought a reconsideration of the Commission’s decision, citing that a Commission agent had advised him to complete reports.^{Footnote 2} The Commission maintained its earlier decision.^{Footnote 3} The Claimant appealed the Commission’s reconsideration decision to the General Division. The General Division dismissed the Claimant’s appeal, having determined that the Claimant’s efforts to return to the labour market after October 23, 2017 failed to demonstrate that he was available for work.

[4] The Claimant seeks leave to appeal the General Division’s decision on the ground that the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction and that it based its decision on an erroneous finding of fact without regard for the material. I must now decide whether the appeal has a reasonable chance of success, that is, whether there is an arguable case based on any of these arguments.

[5] The application for leave to appeal is refused because the Claimant has not satisfied me that the appeal has a reasonable chance of success. For the most part, he is seeking a reassessment or a re-hearing on the issue of the repayment, which is not a ground of appeal under ss. 58(1) of the Department of Employment and Social Development Act (DESDA).

Issues

[6] The issues before me are as follows:

Analysis

[7] 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.

[8] Before granting leave to appeal, I need to be satisfied that the reasons for appeal fall within the grounds of appeal set out under ss. 58(1) of the DESDA and that the appeal has a reasonable chance of success. This is a relatively low bar. Claimants do not have to prove their case; they simply have to establish that the appeal has a reasonable chance of success based on a reviewable error. The Federal Court endorsed this approach in Joseph v. Canada (Attorney General).^{Footnote 4}

Issue 1: Is there an arguable case that the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction?

[9] The Claimant submits that General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction.

[10] 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. Here, the Claimant’s allegations do not address any issues of procedural fairness or natural justice as they relate to the General Division. The Claimant has not pointed to nor provided any details to support his allegations, nor do I see any evidence to suggest that the General Division might have deprived him of an opportunity to fully and fairly present his case or that it might have exhibited any bias against him.

Issue 2: Is there an arguable case that the General Division based its decision on any erroneous findings of fact without regard for the material when it determined that the Claimant had “not looked for work?”

[11] The Claimant suggests that the General Division based its decision on an erroneous finding that he “had not looked for work” or, from what I understand, that he had not made reasonable and customary efforts to obtain suitable employment. He states that he now has a second job, which he suggests is conclusive proof that he had been looking for work. He notes that some of his applications had been submitted online. He also notes that it is much harder to find employment at age 50, though this has not discouraged him from looking.

[12] Essentially, the Claimant is seeking a reassessment or a re-hearing on the issue of whether he had made reasonable and customary efforts to obtain suitable employment. However, ss. 58(1) of the DESDA provides for only limited grounds of appeal. The subsection does not allow for a reassessment of the evidence or a re-hearing of the matter.

[13] Apart from this, the General Division acknowledged that the Claimant had been looking for work and that he had made several applications for suitable work. However, the General Division determined that the Claimant’s efforts were insufficient for the purposes of the requirements under s. 9.011 of the Employment Insurance Regulations because it found that he had not shown sustained efforts. It was irrelevant to the General Division’s determination that the Claimant had been applying online, that he is 50 years old, and that he has now found employment.

[14] All in all, I find that the General Division properly identified and applied the appropriate legal test for determining whether an overpayment arose. I also find that it did not overlook any errors of law, whether or not they appear on the record, or misconstrue any key information. Accordingly, I am not satisfied that the appeal has a reasonable chance of success. And, as the Federal Court of Appeal held in Cameron v. Canada (Attorney General),^{Footnote 5} there is no basis for me to intervene when the Claimant disagrees with the application of settled principles to the facts of his case.

Conclusion

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