Employment Insurance (EI)

Decision and reasons

Decision

[1] The Tribunal allows the appeal.

Overview

[2] The Respondent, C. P. (Claimant), travelled outside Canada in October 2017 for a medical test that she had been waiting for since July 2017 and for other treatment related to her health condition. The Appellant, the Canada Employment Insurance Commission (Commission) found that the Claimant was not entitled to receive benefits for the period she was outside Canada. The Claimant disagreed with this decision because she was dealing with significant health issues and could not wait for the testing to be performed in Canada. The Claimant requested that the Commission reconsider its decision; however, it maintained its original decision. The Claimant appealed the Commission decision to the General Division of the Tribunal.

[3] The General Division found that the medical treatment the Claimant underwent in India was not immediately available to her in her area of residence. It concluded that the Claimant’s absence from Canada fell within the exception set out in section 55(1) (a) of the Employment Insurance Regulations (EI Regulations).

[4] The Commission was granted leave to appeal to the Appeal Division. It argues that the General Division made an error in law in finding that the Claimant was entitled to benefits while outside Canada.

[5] The Tribunal must decide whether the General Division erred in law in its interpretation of section 55(1) (a) of the EI Regulations.

[6] The Tribunal allows the appeal.

Issue

[7] Did the General Division err in law in its interpretation of section 55(1) (a) of the EI Regulations?

Analysis

Appeal Division’s mandate

[8] The Federal Court of Appeal has determined that when the Appeal Division hears appeals pursuant to subsection 58(1) of the Department of Employment and Social Development Act, the mandate of the Appeal Division is conferred to it by sections 55 to 69 of that Act.^{Footnote 1}

[9] The Appeal Division acts as an administrative appeal tribunal for decisions rendered by the General Division and does not exercise a superintending power similar to that exercised by a higher court.^{Footnote 2}

[10] Therefore, unless the General Division failed to observe a principle of natural justice, erred in law, 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, the Tribunal must dismiss the appeal.

Issue: Did the General Division erred in law in its interpretation of section 55(1) (a) of the EI Regulations?

[11] The facts of the present case are not in dispute. The Claimant had been suffering health issues since July of 2017, including severe vertigo and dizziness. She sought medical treatment in Canada, including multiple visits with her family doctor. Her physician first sent a request for an MRI in July 2017 but the earliest date she could get the MRI test was November 15, 2017 and a vertigo specialist appointment was booked for January 12, 2018.

[12] The Claimant attempted to get testing on an urgent basis near the end of September and was on the cancellation list for an MRI, but could not get an earlier appointment.

[13] The Claimant considered that her condition was too severe to wait so she travelled to India to get the testing and medical examinations completed more quickly. She left Canada on October 7, 2017, and had the MRI done on October 10, 2017.

[14] The General Division found that the medical treatment the Claimant underwent in India was not immediately available to her in her area of residence. It found that a waiting period of three months did not fall within the meaning of “immediately available”. The General Division concluded that the Claimant’s absence from Canada fell within the exception set out in section 55(1) (a) of the EI Regulations.

[15] The Commission submits that the General Division erred in law in finding that the Claimant was entitled to benefits while outside Canada. It argues that to respect the scheme of the legislation or the intent of section 55(1) (a) EI Regulations, the General Division had to assess the facts within the realities of the medical system in Canada.

[16] Section 55(1)(a) of the EI Regulations reads as follows:

“55 (1) Subject to section 18 of the Act, a claimant who is not a self-employed person is not disentitled from receiving benefits for the reason that the claimant is outside Canada

(a) for the purpose of undergoing, at a hospital, medical clinic or similar facility outside Canada, medical treatment that is not readily or immediately available in the claimant’s area of residence in Canada, if the hospital, clinic or facility is accredited to provide the medical treatment by the appropriate governmental authority outside Canada;”

[17] There is no dispute that the treatment received by the Claimant was readily available in Canada. The Tribunal must decide whether the General Division erred in its interpretation of section 55(1) (a) of the EI Regulations when it concluded that the Claimant’s treatment was not immediately available in the Claimant’s area of residence in Canada.

[18] The Tribunal is of the view that it is impossible to lay down any hard and fast rule as to what is the meaning of the words “immediately available” in all cases. However, these words must be interpreted as being stronger than the expression “within a reasonable time” and imply prompt action.^{Footnote 3}

[19] At the time the Claimant decided to leave Canada on October 4, 2017, she already had a MRI scheduled for November 15, 2017. The Tribunal finds that the General division erred in law when it ignored this evidence and concluded that the treatment was not immediately available in the Claimant’s area of residence in Canada.  Furthermore, the follow-up appointment with a vertigo specialist scheduled for January 12, 2018, is certainly prompt action within the medical system of Canada.

[20] The Tribunal also finds that the medical note of October 3, 2017, does not support the Claimant’s position and the General Division’s conclusion that she had to leave the country for immediate treatment and that she could not wait five weeks for her already scheduled MRI.  It simply states that her symptoms are persistent and that, although she has a scheduled MRI in mid-November 2017, she is leaving to India on an immediate basis to get the investigations and treatment done.^{Footnote 4}

[21] A previous medical note dated September 25, 2017, further indicated that the Claimant was able to return to work on September 27, 2017.^{Footnote 5}

[22] The evidence shows that the Claimant made a personal decision to go to India because she wanted to receive medical treatment faster than in Canada.  This does not mean that the treatment was not “immediately available” in the Claimant’s area of residence in Canada.

[23] For the above-mentioned reasons, the Commission’s appeal is allowed.

Conclusion

[24] The Tribunal allows the appeal.