Employment Insurance (EI)

Decision and reasons

Decision

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

Overview

[2] The Applicant, T. W.  (Claimant), was laid off from her employment as an educational assistant in the spring of 2016, but she accepted an offer to return to work in the fall. In the meantime, she filed a claim for, and received, Employment Insurance benefits. After that summer, the Respondent, the Canada Employment Insurance Commission (Commission), investigated her claim. The Commission determined that the Claimant had not been available for work during the summer of 2016, and it declared an overpayment. When the Claimant requested a reconsideration, the Commission maintained its original decision. The Claimant appealed to the General Division of the Social Security Tribunal, but her appeal was dismissed. She now seeks leave to appeal to the Appeal Division.

[3] The Claimant has no reasonable chance of success on appeal. There is no arguable case that the General Division failed to observe a principle of natural justice or made a jurisdictional error, that it erred in law, or that it made an erroneous finding of fact.

Issues

[4] Is there an arguable case that the General Division erred in law by finding that the Claimant’s search for temporary employment unduly limited her chances of returning to the labour market?

[5] Is there an arguable case that the General Division failed to observe a principle of natural justice or that it made an error of jurisdiction?

[6] Is there an arguable case that the General Division based its decision (that the Claimant was not available for work) on erroneous findings that it made in a perverse or capricious manner or without regard for the material before it?

Analysis

General principles

[7] The Appeal Division’s task is more restricted than that of the General Division. The General Division is required to consider and weigh the evidence before it and to make findings of fact. In doing so, the General Division applies the law to the facts and reaches conclusions on the substantive issues raised by the appeal.

[8] However, the Appeal Division may intervene in a General Division decision only if it finds that the General Division has made one of the types of errors described by the “grounds of appeal” in section 58(1) of the Department of Employment and Social Development Act (DESD Act).

[9] There are only three grounds of appeal:

1. The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. 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.

[10] 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.

[11] 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 erred in law by finding that the Claimant’s search for temporary employment unduly limited her chances of returning to the labour market?

[12] Section 18(1)(a) of the Employment Insurance Act (EI Act) states that a claimant is not entitled to benefits for a working day in a benefit period for which the claimant fails to prove that on that day they were capable of and available for work and unable to obtain suitable employment.

[13] As the General Division noted, the Federal Court of Appeal has consistently held that, to determine availability, the following must be considered:

1. A desire to return to the labour market as soon as a suitable job is offered;
2. An expression of that desire by efforts to find a suitable job; and
3. An absence of personal conditions that might unduly limit chances of returning to the labour market.^{Footnote 2}

[14] There was no dispute that the Claimant was seasonally unemployed in the summer of 2016 and that she had a job to return at the end of that summer. Furthermore, the General Division accepted that the Claimant had been looking for temporary summer employment to some extent.^{Footnote 3} However, the General Division still found that the Claimant had unduly limited her chances of returning to the labour market by restricting her job search efforts to temporary summer employment.^{Footnote 4}

[15] The Claimant is of the view that the General Division erred in law because of what she discovered at chapter 10.8.2 of the Digest of Benefit Entitlement Principles (Digest).^{Footnote 5} She highlighted a passage from the Digest that states that “claimants [who are laid off for a short period of time and] who have an assurance of either returning to work with their former employer or of commencing work with a new employer in the near future, must be willing to seek and accept suitable temporary work in the meantime” [Claimant’s emphasis].

[16] The General Division is required to follow the EI Act, the Employment Insurance Regulations, and applicable case authority from the Federal Court and Federal Court of Appeal. However, the Digest is not part of the body of law that the General Division is obliged to follow. Therefore, there is no arguable case that the General Division erred in law because its decision is not consistent with the Digest.

[17] Having said that, I note that the Claimant has chosen to highlight a passage that cannot be properly understood without reading the very next sentence, where it is noted: “In addition, [claimants laid off for a short period of time] must continue to be willing to seek and accept suitable temporary or permanent work elsewhere until they are scheduled to return to their former employer or commence the new employment”^{Footnote 6} [my emphasis]. The Digest does not support the Claimant’s position that the General Division erred in law.

[18] When the General Division found that the Claimant was unduly limiting her chances by seeking only temporary employment, it applied settled law to the facts to determine what is termed a” mixed question of fact and law”. As stated in the recent case of Quadir v Canada (Attorney General),^{Footnote 7} the Appeal Division does not have jurisdiction over questions of mixed fact and law.

[19] Therefore, there is no arguable case that the General Division erred in law under section 58(1)(b) of the DESD Act by finding that the Claimant unduly limited her chances of returning to the labour market.

Issue 2: Is there an arguable case that the General Division failed to observe a principle of natural justice or that it made an error of jurisdiction?

[20] The Claimant also indicated on her application for leave to appeal that she believes the General Division failed to observe a principle of natural justice or that it made an error of jurisdiction.

[21] Natural justice refers to fairness of process and includes such procedural protections 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. The Claimant has not raised a concern about the adequacy of the notice of the General Division hearing, the pre-hearing disclosure of documents, the manner in which the General Division hearing was conducted or 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. She has not suggested that the General Division member was biased or that he had prejudged the matter, either.

[22] There is no arguable case that the General Division failed to observe a principle of natural justice. Likewise, the Claimant has not identified how the General Division either refused to exercise its jurisdiction or acted beyond its jurisdiction.  Therefore there is no arguable case that the General Division erred under section 58(1)(a) of the DESD Act.

Issue 3: Is there an arguable case that the General Division based its decision that the Claimant was not available for work on erroneous findings that it made in a perverse or capricious manner or without regard for the material before it?

[23] The Claimant did not specifically argue this ground. However, following the lead of the courts in cases such as Karadeolian v Canada (Attorney General),^{Footnote 8} I have reviewed the file to see if the General Division ignored or misunderstood any relevant evidence. This would be any evidence that could be relevant to the General Division’s findings that the Claimant had a desire to return to the labour market as soon as a suitable job was offered; that she expressed this desire through efforts to find a suitable job; and that she did not place personal conditions on her job search that might have unduly limited her chances of returning to the labour market.

[24] In my review, I have not discovered any incidence of ignored or apparently misunderstood evidence and I therefore find that there is no arguable case under section 58(1)(c) of the DESD Act that 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.

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

Conclusion

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