Employment Insurance (EI)
Decision Information
The Claimant didn’t accumulate enough insurable hours to receive benefits under the EI Act. So, she asked the Commission to antedate her claim so that she could push back her qualifying period and have the hours she needed. But the Commission refused, and it upheld its decision on reconsideration. The General Division (GD) dismissed the Claimant’s appeal, finding that she didn’t have good cause for the delay in making her claim. The GD also pointed out that “antedating” is done only in exceptional circumstances. The Appeal Division (AD) then refused the Claimant leave to appeal. It found that a reasonable and prudent person in her situation would have taken the necessary steps to get information from the Commission and file a claim for benefits as soon as possible. The Claimant applied to the Federal Court (FC) for judicial review of this decision.
The FC held that the Federal Court of Appeal has ruled many times that the Claimant’s situation isn’t “good cause for the delay” within the meaning of the EI Act. Except in exceptional circumstances, people in the Claimant’s situation are expected to look into their obligations under the Act in a timely manner. As a result, the Claimant didn’t satisfy the FC that the AD’s decision was unreasonable. The FC has dismissed the application for judicial review.
Decision Content
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Decision and Reasons
Decision
[1] The Tribunal refuses leave to appeal to the Appeal Division.
Overview
[2] The Applicant, C. B. (Claimant), stopped working for her employer on April 30, 2019. She waited until July 16, 2019, to file a claim for Employment Insurance benefits. The Canada Employment Insurance Commission (Commission) determined that the Claimant did not have good cause for the delay in filing her claim. 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.
[3] The General Division determined that waiting for a Record of Employment from her employer did not constitute good cause for the delay in filing her claim for benefits. It found that a reasonable and prudent person would have taken the necessary steps to obtain information from the Commission and file a claim for benefits without delay.
[4] The Claimant now seeks leave to appeal the General Division decision. She argues that she set aside her priorities to help an aging person. The Claimant submits that she has no legal obligation to know the law and that she acted honestly and transparently.
[5] The Tribunal sent the Claimant a letter so she could explain her grounds of appeal in detail. However, she did not respond to the Tribunal’s request.
[6] 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.
[7] The Tribunal refuses leave to appeal because the Claimant has not raised a ground of appeal based on which the appeal might succeed.
Issue
[8] Does the Claimant’s appeal have a reasonable chance of success based on a reviewable error the General Division may have made?
Analysis
[9] 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 made in a perverse or capricious manner or without regard for the material before it.
[10] 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 at the hearing of the appeal on the merits. At the leave to appeal stage, the Claimant does not have to prove her case; she must instead establish that the appeal has a reasonable chance of success. In other words, she must show that there is arguably a reviewable error based on which the appeal might succeed.
[11] The Tribunal will grant leave to appeal if it is satisfied that at least one of the Claimant’s stated grounds of appeal gives the appeal a reasonable chance of success.
[12] This means that the Tribunal must be in a position to determine, in accordance with section 58(1) of the DESD Act, whether there is an issue of natural justice, jurisdiction, law, or fact that could lead to the setting aside of the decision under review.
Does the Claimant’s appeal have a reasonable chance of success based on a reviewable error the General Division may have made?
[13] The Claimant argues that she set aside her priorities to help an aging person. She submits that she has no legal obligation to know the law and that she acted honestly and transparently.
[14] The Claimant stated to the Commission numerous times that she had delayed in filing her claim because she thought she needed her Record of Employment.Footnote 1
[15] Unfortunately for the Claimant, the Federal Court of Appeal has decided on numerous occasions that claimants who delay in filing a claim because their employer failed to issue a Record of Employment or issued a Record of Employment late do not have good cause for the delay.Footnote 2
[16] As the General Division decided, a reasonable and prudent person in the Claimant’s situation would have taken the necessary steps to obtain information from the Commission and file a claim without delay.
[17] After reviewing 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
[18] The Tribunal refuses leave to appeal to the Appeal Division.
Representative:
C. B., self-represented