Employment Insurance (EI)

Decision and Reasons

Decision

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

Overview

[2] The Applicant, X, is seeking leave to appeal the General Division’s decision of November 8, 2019. Leave to appeal is the first step of the appeals process. It means that an applicant has to get permission from the Appeal Division before moving on to the second and final stage of the appeal process.

[3] The General Division determined that the Applicant was out of time when it filed its appeal. The appeal therefore did not go ahead. The Applicant argues that the General Division made several mistakes. It argues that the General Division was not fair in its process. It also argues that the General Division made an important factual error.

[4] I have to be satisfied that the appeal has a reasonable chance of success before granting leave to appeal. I am not satisfied that the appeal has a reasonable chance of success and I am therefore refusing the application for leave to appeal.

Issue

[5] The only issue is whether the appeal has a reasonable chance of success? In other words, is there an arguable case that the process before the General Division was unfair, or that the General Division made an important factual error?

Analysis

[6] Before the Applicant can move on to the next stage of the appeal, I have to be satisfied that the Applicant’s reasons for appeal fall into at least one of the types of errors listed in subsection 58(1) of the Department of Employment and Social Development Act (DESDA). The types of errors are:

1. The General Division was not fair in its processes.
2. The General Division did not decide an issue that it should have decided. Or, it decided something that it did not have the power to decide.
3. The General Division made an error of law when making its decision.
4. The General Division based its decision on an important error of fact.

[7] The appeal has to have a reasonable chance of success. A reasonable chance of success is the same thing as an arguable case at law.^{Footnote 1} This is a relatively low bar because applicants do not have to prove their case; they simply have to show that there is an arguable case.

[8] The Applicant argues that the General Division made several mistakes. It argues that the process before the General Division was unfair. It also argues that the General Division made an important factual error about the status of a claimant. However, the Claimant’s arguments do not directly relate to the General Division’s decision of November 8, 2019. Instead, they relate to another proceeding involving a claimant who worked for the Applicant.

[9] Even so, the Applicant relies on these arguments to explain why it was late in filing a Notice of Appeal with the General Division. Essentially, it is asking for a reassessment. It is asking me to give the decision that it sought at the General Division. However, I do not have any authority to conduct a reassessment. I am limited to considering whether the General Division made the type of mistake listed in subsection 58(1) of the DESDA.

[10] The Applicant does not explain how the General Division was unfair in its process that led to its November 8, 2019 decision. Further, the Applicant also does not point to any factual errors in the November 8, 2019 decision. Indeed, the Applicant agrees with the General Division’s findings that more than one year had passed from the time it received the Respondent’s reconsideration decision to the time it filed an appeal with the General Division.

[11] I have reviewed the underlying record. I do not see that the General Division erred in law, whether or not the error appears on the record. I also do not see any sign that it failed to properly account for any of the evidence before it when it considered whether the Applicant’s appeal was on time.

[12] The General Division found that the Applicant could not file an appeal with the General Division more than one year after the day on which the Respondent had communicated its reconsideration decision to it. The General Division did not make a mistake in this regard. As the General Division noted, subsection 52(2) of the DESDA does not allow a party to bring an appeal more than one year after a reconsideration decision has been communicated to them. The Federal Court confirmed that there is no discretion in this regard.^{Footnote 2}

Conclusion

[13] I am not satisfied that the appeal has a reasonable chance of success. The application for leave to appeal is therefore refused.