Employment Insurance (EI)

Decision and reasons

Decision

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

Overview

[2] The Applicant, J. B. (Claimant), applied for Employment Insurance benefits and established a benefit period. The Respondent, the Canada Employment Insurance Commission (Commission), later investigated and determined that the Appellant had voluntarily left his employment without just cause. As a result, the Claimant was disqualified from receiving benefits, which resulting in an overpayment of benefits. The Commission also discovered that the Claimant had been working at the same time that he was receiving benefits. He completed a number of Employment Insurance benefit reports in which he declared that he was not working or receiving earnings in the same period. Therefore, the Commission determined that the Claimant had knowingly made false statements, and it assessed a penalty and imposed a very serious Notice of Violation.

[3] The Claimant asked the Commission to reconsider. The Commission maintained its decision on the overpayment, but it reduced the penalty based on the Claimant’s difficult circumstances. The Claimant appealed to the General Division of the Social Security Tribunal, but his appeal was dismissed. He now seeks leave to appeal to the Appeal Division.

[4] The Claimant has no reasonable chance of success on appeal. The Claimant did not point to any error made by the General Division, and I have been unable to discover any evidence that the General Division ignored or misunderstood when making its decision. Therefore, there is no arguable case that the General Division erred under section 58(1) of the Department of Employment and Social Development Act (DESD Act).

Issues

[5] Is there an arguable case that the General Division erred in law by requiring the Claimant to repay all of the benefits paid out under the claim?

[6] Is there an arguable case 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 to the material before it?

Analysis

[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 that is 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 decision of the General Division only if it can find that the General Division has made one of the types of errors described by the “grounds of appeal” in section 58(1) of the DESD Act.

[9] The only grounds of appeal are as follows:

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 requiring the Claimant to repay all of the benefits that had been paid out under the claim?

[12] The Claimant did not select any ground of appeal in the “Reason for your Appeal” section of his application for leave to appeal. However, he did not identify any legal or factual error in the analysis or conclusions of the General Division. Where he is asked to give examples of General Division errors, the Claimant stated, “They use two methods of calculation which [he feels] is biased.”^{Footnote 2} I must presume that the Claimant is disputing the manner in which the Commission calculated his repayment and penalty.

[13] Looking back at his appeal to the General Division, I note that the Claimant stated that he should only have to repay the benefit amount that he should not have received (and the penalty). He said that he was not working the whole time that he was on benefits but that the Commission wants the “whole claim back.”^{Footnote 3} This suggests to me that the Claimant’s continuing concern with the “two methods of calculation” is a request that the Appeal Division find that it was an error for the General Division to have accepted that all of the benefits paid to the Claimant should be repaid, and not just benefits during the periods in which the Claimant worked.

[14] Section 30(1) of the Employment Insurance Act (EI Act) states that a claimant is disqualified from receiving benefits if the claimant cannot prove just cause for leaving his or her employment. According to section 29 of the EI Act, “just cause” can only be found where a claimant has no reasonable alternative to leaving, having regard to all the circumstances. Section 30(2) of the EI Act states that the disqualification is effective for each week of the claimant’s benefit period and that it is not affected by any subsequent loss of employment during the benefit period.

[15] The Claimant’s benefit period was established effective October 5, 2015. Shortly afterwards, the Claimant accepted employment and worked from October 26, 2015, to November 9, 2015, when he quit his job. The Commission found that he had have voluntarily left his employment without just cause. As a result, the Claimant was disqualified from receiving any more benefits within the benefit period established effective October 5, 2015.

[16] By itself, section 30(3) of the EI Act would have permitted the Claimant to retain benefits he received up to November 6, 2015. However, because the Claimant had earnings from employment between October 26, 2015, and November 6, 2015, the Commission had to allocate those earnings to the two weeks in which they were earned, as per section 36(4) of the Employment Insurance Regulations (Regulations). Benefits that have been paid in periods in which earnings are allocated are also recoverable by the Commission (up to the amount of the earnings allocated).

[17] I presume that the other method of calculation to which the Claimant refers is the authority of the Commission to allocate earnings under section 36(4) of the Regulations. The Commission would have allocated all of the Claimant’s earnings during the period in which he was receiving benefits to the weeks in which he performed services for those earnings. If the Claimant had not been disqualified under section 30 of the EI Act, the Commission would have only sought repayment of benefits paid to the Claimant in periods in which he was in receipt of claim benefits and also had earnings from employment.

[18] The Claimant was required to pay back benefits he received prior to November 8, 2015, up to the amount of his earnings from employment as they were allocated. However, because he was disqualified, he was also required to repay all of the benefits he received from November 8, 2015 when he was disqualified, through to the end of the Claimant’s benefit period that had been established earlier. The Commission still allocated the various amounts the Claimant earned after his disqualification to the weeks in which they were earned, but the purpose of that allocation was not to recover the benefits paid in the specific weeks in which the Claimant had earnings; the purpose was to allow the Commission to calculate the appropriate penalty for having knowingly made false statements.

[19] There is no arguable case that the General Division erred in law under section 58(1)(b) of the DESD Act by accepting the manner in which the Commission calculated and allocated earnings. The General Division had no authority to disregard the EI Act and Regulations or to make a decision contrary to the EI Act or Regulations.

Issue 2: Is there an arguable case 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 to the material before it?

[20] The Claimant’s only reference to the actual General Division decision is to paragraph 53 of the decision.^{Footnote 4} In that paragraph, the General Division simply acknowledged that the Commission considered some of the Claimant’s personal circumstances when it reduced the amount of his penalty, from 50% of the overpayment that would have resulted from the Claimant’s false statements, to 20% of that same overpayment amount.

[21] The reconsideration decision of the Commission took into account that the Claimant needed the money, feared the prospect of homelessness while caring for his child, and that he panicked.^{Footnote 5} This reflects what he told the Commission on May 9, 2017. The reconsideration decision of May 9, 2017 indicates a reduction of the penalty from $3,109.00 to $1,243.00.^{Footnote 6} I see no error in the General Division’s understanding of the facts in relation to the penalty reduction.

[22] The Claimant has not identified any evidence that the General Division ignored or explained how the General Division misunderstood any evidence in its analysis. Nor has the Claimant explained how the General Division’s conclusions on the evidence might be considered perverse or capricious.

[23] Following the direction of the Federal Court in cases such as Karadeolian v Canada (Attorney General),^{Footnote 7} I have reviewed the record for other evidence that might have been overlooked or misunderstood, but I am unable to discover an arguable case in relation to such an error.

[24] An appeal before the Appeal Division is not an appeal where a de novo hearing is held—that is, where a party can resubmit its evidence and hope for a different decision.^{Footnote 8} Similarly, the Claimant has no reasonable chance of success in arguing that the General Division should have weighed the evidence differently to reach a different conclusion.^{Footnote 9} I understand that the Claimant disagrees with the General Division’s findings, but simply disagreeing with the findings does not disclose a valid ground of appeal under section 58(1) of the DESD Act.^{Footnote 10}

[25] I find that the Claimant has failed to make an arguable case 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.

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

Conclusion

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