Employment Insurance (EI)

Decision and reasons

Decision

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

Overview

[2] The Applicant, S. K. (Claimant), was dismissed from her employment for having claimed group insurance benefits to which she was not entitled. When she applied for Employment Insurance benefits, the Respondent, the Canada Employment Insurance Commission (Commission), refused her claim, finding that she had been dismissed for misconduct.

[3] The Claimant requested a reconsideration, but the Commission maintained its original decision. She then appealed to the General Division of the Social Security Tribunal. The General Division dismissed her appeal, and she now seeks leave to appeal to the Appeal Division.

[4] The Claimant has no reasonable chance of success on appeal. She has not pointed to any evidence that was ignored or misunderstood and has not raised an arguable case that the General Division erred under section 58(1) of the Department of Employment and Social Development Act (DESD Act).

Preliminary matters

[5] The Tribunal received the original application for leave to appeal on December 23, 2018: within 30 days of the date that the decision could be deemed to have been communicated to the Claimant. However, the application was not considered complete until January 29, 2019, and it was therefore processed as a late application. However, as a result of changes to the Appeal Division’s application review process, the Appeal Division determined on February 14, 2019, that the appeal had not been filed late. Therefore, I am authorized to consider the leave to appeal application.

Issue

[6] Is there an arguable case that the General Division based its decision on findings that ignored or misunderstood the evidence that was before it?

Analysis

[7] The Appeal Division may intervene in a General Division decision only if the Appeal Division 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.

[8] The grounds of appeal in section 58(1) of the DESD Act are as follows:

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.

[9] To grant this application for leave and to allow the appeal process to move forward, I must first find that there is a reasonable chance of success based on one or more of the grounds of appeal. A reasonable chance of success has been equated to an arguable case.^{Footnote 1}

Is there an arguable case that the General Division based its decision on findings that ignored or misunderstood the evidence that was before it?

[10] In her leave to appeal application, the Claimant reasserted a number of facts that she had submitted in her appeal to the General Division. She did not identify a ground of appeal, but she did state that, “assumptions regarding [her] case were made during the appeal”.^{Footnote 2}

[11] The Claimant did not detail the “assumptions” with which she disagreed, but I have reviewed the file to determine whether there is an arguable case that any evidence was mistaken or overlooked. As stated by the Federal Court in Karadeolian v Canada (Attorney General),^{Footnote 3} “the Tribunal must be wary of mechanistically applying the language of section 58 of the [DESD Act] when it performs its gatekeeping function. It should not be trapped by the precise grounds for appeal advanced by a self-represented party.”

[12] The Claimant has not disputed that she made false claims to the benefit insurance provider, but she stated in both her appeal to the General Division and in her application for leave in this appeal that she did not intend to defraud the insurance company and that she was not aware that she could be terminated as a result of her actions. Therefore, I have paid particular attention to the General Division’s findings concerning these matters.

[13] The General Division acknowledged the Claimant’s testimony that she did not know her actions were fraudulent and did not intend to commit fraud.^{Footnote 4} The General Division also acknowledged her testimony that she claimed the services early so that they could be claimed under her current year’s benefits, but with the intention of obtaining the services later.^{Footnote 5} It was undisputed that the Claimant had certified that she had received the services for which she was making the insurance claim, on each of the claims that she submitted. It is also apparent that the General Division understood the Claimant to assert that she had not actually read the certification statement before agreeing to it.^{Footnote 6} The decision noted the Claimant’s statement that the online claim process did not require receipts and that she entered false dates for insured services because the system prevented her from entering future dates. The General Division referred to the Claimant’s admission that she had given access to the claim system to her significant other, who had submitted claims under her name.

[14] The General Division still found that the Claimant had put in false information regarding dates and claiming reimbursement for services not yet received.^{Footnote 7} The General Division recognized that Claimant did not “answer with confidence” that she had seen the Code but it noted that she had testified to the effect that she knew she had to abide by the fraud section of the Code. It found that the Claimant was aware of the employer’s Code^{Footnote 8} and that she knew she was required to follow the Code,^{Footnote 9} that the Code stated that she could be terminated for fraud,^{Footnote 10} and that the Code defined what it meant by fraud.^{Footnote 11}

[15] The Claimant rejected the characterization of her actions as misconduct, testifying that she had not taken the submission of claims seriously and that she immediately reimbursed the insurance company after it contacted her about the false claims. She also said that she had no training in submitting her benefit claims and that the fraud section of the employer’s code of conduct (Code) was generic and did not specifically address the submission of benefit claims.

[16] The General Division took note of the Claimant’s explanation but, in the end, the General Division was of the view that the Claimant’s actions met the Code’s definition of fraud.^{Footnote 12} It further determined that the Claimant’s actions were deliberate, that they represented a breach in her duty to her employer, and that she knew or ought to have known that her conduct could lead to her dismissal.

[17] The Claimant may not agree with the manner in which the General Division weighed or assessed the evidence, including the inferences drawn from the facts, but she has not pointed to any evidence that was ignored or misunderstood, or to any unfounded assumption. The Appeal Division can only intervene in a decision of the General Division if the General Division has made an error under section 58(1) of the DESD Act. It is not the role of the Appeal Division to reweigh the evidence to reach different conclusions.^{Footnote 13}

[18] I have reviewed the record, and I have not been able to find an arguable case that the General Division made any erroneous finding of fact in relation to evidence that was ignored or misunderstood. I have found no significant error or omission related to any of the General Division’s findings, including findings that the conduct actually occurred; that the Claimant breached a duty owed to the employer; that the Claimant’s conduct was deliberate or intentional; that the Claimant knew or ought to have known she could be dismissed for the conduct, and; that the employer, in fact, dismissed the Claimant for her conduct.

[19] There is no arguable case that the General Division made any error under section 58(1)(c) of the DESD Act. The Claimant has no reasonable chance of success on appeal.

Conclusion

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