Employment Insurance (EI)

Decision and reasons

Decision

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

Overview

[2] The Applicant, M. G. (Claimant), made a claim for Employment Insurance benefits on May 25, 2018. The Claimant’s last day of work was December 3, 2017. The claim for benefits was accompanied by a request to antedate his claim to December 3, 2017. The Claimant explained the delay by saying he believed his employer would rehire him.

[3] The Canada Employment Insurance Commission (Commission) refused to antedate the claim, having determined that the Claimant had not shown that there was good cause for submitting his claim late. The Claimant requested a reconsideration of that decision, but the Commission upheld its initial decision. The Claimant appealed the reconsideration decision to the Tribunal’s General Division.

[4] The General Division determined that a reasonable and prudent person would not have waited five months to submit their claim for benefits. They would have made the claim and then made sure to contact their employer about the date of their return to work.

[5] The Claimant now seeks leave to appeal the General Division decision.

[6] In support of his application for leave to appeal, the Claimant argues that the General Division made an error by failing to consider his explanation for the delay valid. He argues that his employer is to blame because it led him to believe he would be rehired.

[7] The Tribunal must decide whether there is an arguable case that the General Division made a reviewable error based on which the appeal has a reasonable chance of success.

[8] The Tribunal refuses leave to appeal because the Claimant has not raised a ground of appeal based on which the appeal has a reasonable chance of success.

Issue

[9] Does the Claimant’s appeal have a reasonable chance of success based on a reviewable error the General Division may have made?

Analysis

[10] Section 58(1) of the 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.

[11] An application for leave to appeal is a preliminary step to a hearing on the merits of the case. 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.

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

[13] This means that the Tribunal must be in a position to determine, in accordance with section 58(1) of the Department of Employment and Social Development Act (DESD Act), whether there is an issue of natural justice, jurisdiction, law, or fact that may lead to 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 the General Division may have made?

[14] In support of his application for leave to appeal, the Claimant argued that the General Division made an error by failing to consider his explanation for the delay valid. He argues that his employer is to blame because it led him to believe that he would be rehired.

[15] The case law has established that waiting in good faith to be recalled by an employer instead of immediately submitting a claim for benefits is certainly commendable, but it does not constitute good cause for the delay within the meaning of the Employment Insurance Act.

[16] As the General Division decided, a reasonable and prudent person in the Claimant’s situation would not have waited five months before submitting a claim for benefits. That person would have applied for benefits and would then have made sure to contact their employer about the date of their return to work.

[17] The Tribunal finds that the Claimant has not raised any issue of law, fact, or jurisdiction that may lead to the setting aside of the decision under review.

[18] On review of the appeal file, the General Division decision, and the arguments in support of the application for leave to appeal, the Tribunal has no choice but to find that the appeal has no reasonable chance of success.

Conclusion

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