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Decision and Reasons
Decision
[1] The Tribunal refuses leave to appeal to the Appeal Division.
Overview
[2] The Applicant, N. K. (Claimant), made a request for employment insurance benefits. He established a benefit period starting on June 18, 2017. He received benefits. The Canada Revenue Agency later determined that the Claimant had insurable hours between June 19, 2017, and July 15, 2017. Based on this decision, the Canada Employment Insurance Commission (Commission) decided that the Claimant had received earnings and allocated those earnings to the weeks of June 18, 2017; June 25, 2017; July 2, 2017, and July 9, 2017. This resulted in an overpayment of benefits.
[3] The Claimant disputed the Commission’s decision because he told the Commission from the outset that the record of employment was incorrect. The Claimant always maintained that he had earnings after June 16, 2017, even though he was not paid. He argued that he should not pay the overpayment that resulted from the allocation of earnings from June 19, 2017, until July 15, 2017.
[4] The General Division found that the Claimant had an obligation to return the money to the Respondent since he has received money by way of benefits to which he was not entitled. It determined that only the Commission had the power to write-off an overpayment. The General Division concluded that it did not have the authority to offset any overpayment debts because of the Claimant’s alleged damages.
[5] The Appeal Division granted leave to appeal.
[6] In the meantime, the Claimant filed an application to rescind or amend the General Division decision. The General Division dismissed the application. The General Division concluded that the Claimant did not present new facts or prove that the decision was made without knowledge of or include a mistake of a material fact.
[7] The Claimant now seeks leave to appeal to the Appeal Division of the General Division’s decision on the application to rescind or amend.
[8] The Tribunal must decide whether there is some reviewable error of the General Division upon which the appeal might succeed.
[9] The Tribunal refuses leave to appeal because the Claimant’s appeal has no reasonable chance of success.
Issue
[10] Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed?
Analysis
[11] Section 58(1) of the Department of Employment and Social Development Act (DESD Act) specifies the only grounds of appeal of a General Division decision. These reviewable errors are that:
- (a) the General Division: failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- (c) the General Division 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.
[12] An application for leave to appeal is a preliminary step to a hearing on the merits. 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 but must establish that the appeal has a reasonable chance of success based on a reviewable error. In other words, that there is arguably some reviewable error upon which the appeal might succeed.
[13] Therefore, before leave can be granted, the Tribunal needs to be satisfied that the reasons for appeal fall within any of the above-mentioned grounds of appeal and that at least one of the reasons has a reasonable chance of success.
Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed?
[14] In support of his application to rescind or amend the General Division’s decision, the Claimant submitted that the Commission had changed the number of weeks of entitlement to benefits from 28 weeks to 30 weeks and that he had never been paid for the work he performed between June 2017 and July 2017.
[15] In its initial decision, the General Division concluded that the topic of weeks of entitlement to benefits was not under appeal before it. The reconsideration decision under appeal only concerned earnings and allocation of earnings. The General Division concluded that the allocation of earnings had to be performed irrespective of whether or not the Claimant had actually received the sums in question.
[16] Therefore, the Claimant did not raise before the General Division any relevant new facts that either happened after the decision had been rendered or had happened prior to the decision but could not have been discovered by him acting diligently. He also has not demonstrated that the General Division decision was given without knowledge of, or that it was based on a mistake as to, some material fact.
[17] Section 66 of the DESD Act is clearly not intended to enable a claimant to re-argue his appeal before the General Division.
[18] After reviewing the appeal docket, the General Division’s rescind or amend decision and the Claimant’s arguments in support of his request for leave to appeal, the Tribunal finds that the appeal has no reasonable chance of success. The Claimant has not set out reasons that fall into the above-enumerated grounds of appeal that could possibly lead to the reversal of the disputed decision.
Conclusion
[19] The Tribunal refuses leave to appeal to the Appeal Division of the General Division decision rendered on November 21, 2019, dismissing the Claimant’s application to rescind or amend presented under section 66 of the DESD Act.
[20] The Claimant’s appeal of the General Division’s initial decision rendered on August 21, 2019, will follow its course in file AD-19-644.
Representative:
N. K., Self-represented