Employment Insurance (EI)

Decision and Reasons

Decision

[1] The employer, X (Applicant), does not have standing (in other words, the right) to apply for leave to appeal.

Overview

[2] The Canada Employment Insurance Commission (Commission) denied S. S.’s (Claimant), application for regular Employment Insurance because it found that she had voluntarily left her employment without just cause. The Claimant asked the Commission to reconsider but it would not change its decision.

[3] When the Claimant appealed to the General Division of the Social Security Tribunal (Tribunal), the Applicant asked to be added as a party to the proceedings. In a June 4, 2019, decision, the General Division refused to add the Applicant to the appeal. It stated that the Applicant did not have a direct interest in the appeal.

[4] On September 20, 2019, the General Division allowed the Claimant’s appeal. It found that the Claimant had not voluntarily left her employment. After the Claimant succeeded in her appeal, the Applicant sought leave to appeal the General Division’s earlier refusal to add the Applicant as a party. The Applicant’s appeal was late, and the Appeal Division refused to grant an extension of time for the Applicant to appeal.

[5] The Applicant is now seeking leave to appeal the September 20, 2019, decision (the “merit decision”) to the Appeal Division of the Social Security Tribunal (Tribunal). Both the Commission and the Claimant are Respondents.

[6] The Applicant was not the subject of the General Division decision and does not have standing to appeal to the Appeal Division. Therefore, I cannot consider the Applicant’s application for leave to appeal.

Preliminary matters

Can I consider the Claimant’s February 28, 2020, submissions?

[7] I asked the Commission, the Applicant, and the Claimant to provide submissions on whether the Applicant has standing to bring an appeal to the Appeal Division. I asked for a response by February 28, 2020. The Appeal Division received both the Applicant’s and the Claimant’s submissions on February 28, 2020. The Commission did not provide submissions.

[8] Although the Appeal Division received the Claimant’s submissions on February 28, 2020, the Applicant argues that the Claimant filed the submissions too late. It asserts that the Appeal Division received the Claimant’s submissions after its regular office hours and that I should refuse to consider them.

[9] The Applicant is probably basing its argument on the Federal Court’s rules or provincial rules of court. The Tribunal does not have a rule that requires a person to file submissions by a particular time of day. The Tribunal has to follow the Social Security Tribunal Regulations (SST Regulations). Section 7 of the SST Regulations states as follows:

The date of filing of an appeal, application or other document is deemed to be

1. (a) in the case of a document that is filed at the Tribunal’s address or sent by mail or by facsimile, the date indicated by the date received stamp placed on the document by the Tribunal.
2. (b) in the case of a document that is filed by email or in accordance with the Tribunal’s electronic filing procedure, the date receipt indicated by the Tribunal’s time stamp.

[10] The Claimant appears to have emailed her submissions. They were dated February 28, 2020, and date-stamped by the Tribunal on February 28, 2020. According to the SST Regulations, they are deemed to have been received on February 28, 2020. The Claimant’s submissions were not late.

[11] In any event, there is no prejudice to the Applicant. The Appeal Division has since afforded both the Applicant and the Claimant the opportunity to provide supplemental submissions. In addition, the Appeal Division later offered both the Applicant and the Claimant an opportunity to make submissions about Francis v Canada (Attorney General).^{Footnote 1} That decision is a recent Federal Court decision related to the issue of having standing to appeal.

[12] I will consider the Claimant’s February 28, 2020, submissions together with the other submissions I have received from the Claimant and the Applicant.

Does the Applicant have standing to apply for leave to appeal?

[13] An applicant’s standing to appeal to the Appeal Division is governed by section 55 of the Department of Employment and Social Development Act (DESD Act). Section 55 reads as follows:

Any decision of the General Division may be appealed to the Appeal Division by any person who is the subject of the decision and any other prescribed person.

At present, the SST Regulations do not prescribe any other person who may appeal a General Division decision.

[14] I must decide whether the Applicant is a person who is “the subject of the decision” before I can consider the Applicant’s application for leave to appeal on the merit decision.

Applicant’s position

[15] The Applicant argues that it is the “subject of the appeal” even though the General Division found that it did not have a direct interest in the appeal. The Applicant maintains that it has a direct interest in the outcome of the appeal, but it argues that the Appeal Division should find it to be “the subject of the decision,” even if it does not have a direct interest.^{Footnote 2} The Applicant suggests that the Appeal Division should give “the subject of the decision” the meaning it was given by the Appeal Division in X v Canada Employment Insurance Commission and JF (X).^{Footnote 3} The X decision was judicially reviewed by the Federal Court in Francis.^{Footnote 4} and the Court returned the matter to the Appeal Division for a redetermination.^{Footnote 5} However, the Applicant argues that the Federal Court did not explicitly reject the test used by X  to determine the “subject of the appeal.” The Applicant submits that I should apply the test from X or create a similar test.^{Footnote 6}

[16] In X, the Appeal Division formulated a novel test to interpret section 55. It stated:

The person who is subject to the decision of the General Division is a person who is dependent on its decision, affected or possibly affected by it, and liable or prone to suffer something from it.^{Footnote 7}

[17] The Applicant states that it has an interest in the General Division decision because it may affect other legal proceedings in which the Applicant and the Claimant are involved. The General Division found that the Applicant dismissed the Claimant from her employment. The  Claimant has apparently raised an argument in those proceedings that the issue has already been decided by the General Division (a res judicata argument). Therefore, the Applicant argues that the General Division decision may affect its chances of success.

[18] The Applicant also argues that the General Division decision could affect how it accommodates injured employees in the future.

Claimant’s position

[19] The Claimant acknowledges that “the subject of the decision” is a person who may bring an appeal to the Appeal Division. She agrees with the Applicant that this is not the same as having a “direct interest in the decision,” which is what the General Division requires before it will add a person as a party.

[20] The Claimant suggests that the test for standing to appeal to the Appeal Division should actually be narrower than the “direct interest” test that the Tribunal uses to decide whether it should add a person as a party.^{Footnote 8} The Claimant says that the Appeal Division should consider who has participated in the process. She also argues that the test should focus on whom (which person or persons) the decision is primarily about, which she describes as the “primary object of the decision.” In other words, a person should not necessarily be found to be “the subject of the decision” just because he or she is “directly affected.”

[21] In addition, the Claimant argues that it would be “unfair and inconsistent” for the Appeal Division to allow standing to the Applicant to appeal, when the General Division had refused to allow it to participate.^{Footnote 9}

[22] I agree that the Appeal Division cannot determine who may initiate an appeal to the Appeal Division by simply adopting the direct interest test from the “added party” context. “[T]he subject of the decision” is the person who may bring an appeal to the Appeal Division under section 55 of the DESD Act. A person with a direct interest is the person who may be added as a party under section 10 of the SST Regulations.

[23] Section 55 of the DESD Act describes the person with standing to appeal using  significantly different language than section 10 of the SST Regulations because the two sections are intended for different purposes. The Appeal Division uses “the subject of the decision” to determine the standing of a person who wishes to initiate an appeal and to argue that a decision was wrongly decided. The person claiming a “direct interest” in the decision intends to affect the course of someone else’s appeal.

[24] I note that the Applicant is mistaken that the choice of legal test depends on the division of the Tribunal in which the appeal is heard.^{Footnote 10} Whether a person is asking to be added as a party to an appeal at the General Division or to be added at the Appeal Division, the same direct interest test would be applied.^{Footnote 11} Section 55 is not used to determine standing because the applicant is trying to appeal at the Appeal Division rather than the General Division. It uses it because the applicant is trying to start an appeal, rather than join an existing appeal.

[25] The meaning of “the subject of the decision” in section 55 is a matter of interpretation. I will use principles of statutory interpretation as the starting point of my analysis. However, before I begin, I will answer the Applicant’s argument that the Federal Court did not reject the test that X developed, and that I may, or should, follow that test.

Utility of the X test

[26] X is the first decision to articulate a test for whether the Appeal Division should grant standing to appeal to an applicant. When the Federal Court judicially reviewed X, it held that the Appeal Division analysis in X was unreliable because the Appeal Division had not considered the proper language of section 55.^{Footnote 12} Francis was concerned that the Appeal Division mistakenly asked itself who is “subject tothe decision,”^{Footnote 13} and that it had interpreted the standing test as though “subject to the decision” was how section 55 was actually worded.

[27] The Applicant acknowledges that Francis rejected the Appeal Division’s analysis because the Appeal Division failed to determine an employer’s standing based on whether it was “subject to the decision.” However, according to the Applicant, Francis did not reject the test laid out in X.^{Footnote 14}

[28] I disagree. When Francis rejected the analysis by which the Appeal Division arrived at its test, it rejected the test also. Francis found that the Appeal Division made an error of law by not explaining why it departed from the language of section 55 to ask itself who was the person that was “subject to” [my emphasis] the decision.^{Footnote 15} The Federal Court found that this error was significant enough to affect the reliability of the Appeal Division’s analysis.^{Footnote 16} If the Appeal Division’s departure from the language of section 55 was of little consequence, it is unlikely that the Federal Court would have found the Appeal Division to have made an error.^{Footnote 17}

[29] The Claimant suggests that the Appeal Division’s misreading of section 55 of the DESD Act resulted in an overbroad test. She argues that the Appeal Division should not adopt the test from X.

[30] I agree with the Claimant and decline to apply the standing test described in X. The Francis decision did not mention this, but the Appeal Division identified two dictionary definitions of the phrase, “subject to” before constructing its test. It referred to the Black’s Law Dictionary definition of “subject to” as “conditional or dependent on something” and to the Merriam-Webster definition that “subject to” means “affected by or possibly affected by something, liable or prone to suffer something.”^{Footnote 18} The test the Appeal Division employed was an obvious fusion of these two definitions. In my view, the Appeal Division’s test in X was influenced by its misreading of section 55, or by a mistaken view that “any person who is the subject of the decision” means the same thing as “any person who is subject to the decision.” This led the Appeal Division to fashion a test that focused on the effect of the decision on the applicant.

[31] Such a test is not necessarily appropriate to determine whether a person who seeks to appeal a General Division decision is “the subject of the decision” as required by section 55 of the DESD Act.

Statutory interpretation

[32] According to the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re.),^{Footnote 19} statutory interpretation involves a ‘textual, contextual and purposive analysis of the statute or [the] provision in question.’ According to the Court, the words used in a statute should be read, “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” This requires a consideration of three factors:

• The language of the provision
• The context in which the language is used
• The purpose of the legislation or statutory scheme in which the language is found

I. The language of the provision

[33] According to the Applicant, it does not matter whether it is “the subject of the decision” or “subject to the decision” [emphasis added]. Citing Rizzo Shoes, the Applicant stated, ”[W]e must focus on the ordinary meaning of the words of the statute in their immediate context and the scheme of the act as a whole.”^{Footnote 20}

[34] However, the Applicant dispenses with this principle immediately when it suggests that I set aside the manner in which the words “of” and “to” modify the meaning of “subject.” In other words, the Applicant is asking me to ignore the immediate grammatical context, and to consider “subject” independently. It selected several definitions for the word “subject,” and it argues that the Appeal Division should allow it to appeal because it meets these dictionary definitions.^{Footnote 21} I believe the Applicant means me to understand that the dictionary definitions represent the ordinary meaning of “subject” or may be used to inform the meaning of “subject.”

[35] Two of the proposed definitions do not apply because they concern the adjective form of “subject.”^{Footnote 22} Thus, they would only apply in circumstances where the person was “subject to” the decision (and not “the subject of” the decision). Those two definitions are 1) that the subject is one who “suffers a particular liability or exposure,” and 2) that a subject’s actions are “contingent on or under the influence of some later action” (the decision, presumably).

[36] These definitions would give a meaning to “subject” that the grammatical context of section 55 does not support. I consider the distinction between “subject to” and “subject of” to be an important one, just as the Federal Court did in the Francis decision. The Federal Court sent the decision back to the Appeal Division for a redetermination because the Appeal Division ignored the distinction.

[37] Therefore, those dictionary definitions that relate to the phrase “subject to” do not help me to interpret section 55.

[38] The Applicant identified a third dictionary definition for “subject” as “an individual whose reactions or responses are studied.” This meaning of “subject” describes the subject of an experiment or study. It does not apply to these facts and does not help me define who has standing to appeal a General Division decision.

[39] However, two of the proposed definitions relate to the ordinary meaning of “the subject of the decision.” One of the definitions proposed is that the subject is “something concerning which something is said or done.”

Decision is “about” the subject

[40] “[S]omething concerning which something is said or done” is too broad a definition to be the final word on who is “the subject of the decision.” A person could have a minimal or peripheral interest in the decision outcome, or be referenced casually in the decision, and still be “something concerning which something is said or done.” A standing test that defines the subject in this way would not screen out many applicants.

[41] However, this is still a useful definition because it captures the most obvious or plain meaning of subject. The subject should be a person that the decision is about.

[42] The Applicant gives two examples of how a person may qualify as a subject. It suggests that the Appeal Division should consider how frequently the decision refers to a person. It also suggests that the General Division’s use of a person’s statements to reach its decision should be relevant. These examples imply that the Applicant accepts that the “the subject of the decision” should be someone that the decision is about.

[43] For her part, the Claimant argues that “the subject of the decision” must be the “primary object” of the decision. She disputes that “the subject” is a person who may simply, or possibly, be affected, as the Appeal Division had held in X. The Claimant focuses on the fact that section 55 identifies the person who is “the subject,” and not just “a subject.”^{Footnote 23} She argues that the use of the definite article “the” means that the subject of the decision must be specific. At the same time, the Claimant acknowledges that “the person” could be more than one person. In other words, the decision might have more than one “primary” object.

[44] I accept that a decision is more likely to refer to the person who is “the subject of the decision,” and even that the subject is likely to be mentioned several times in the decision. However, I do not agree that any person who is mentioned repeatedly in the decision must be the subject of the decision. I can imagine a criminal or a civil case in which the conviction or judgment turns on the testimony of an eyewitness. The court’s decision may refer to the witness frequently, but that would not make the witness the subject of the decision. I also reject the employer’s second point that a person may be found to be the subject based on whether the General Division relies on evidence the person provides. In my example, the witness’ evidence could have been key to the conviction or judgment but that would not make him or her the subject of the decision.

[45] I agree with the Claimant that the use of “the subject” rather than “a subject” means that the subject must be specific. By this, I mean that the subject must be a person that the decision identifies or be a member of a defined class of persons that the decision identifies. I also accept that use of the definite article together with “subject” suggests that the subject of the decision figures prominently into the decision result.

Decision affects the subject

[46] The other possible definition is that the subject is the “one that is acted on.” This definition suggests that the subject may be known by how he or she is affected by the decision result. The Applicant argues that the General Division’s findings could affect its other legal proceedings, so it should also fall within this definition.

[47] In my view, a plain language reading of “the subject of the decision” suggests that the subject is minimally one whom the decision is about. However, section 55 does not just refer to the subject; it refers to “the subject of the decision” [emphasis added]. A decision is important to its subject or subjects because of how it affects them or may affect them. Therefore, “the subject of a decision” is also one who is, or may be, “acted on” or affected by the decision.

[48] I accept that the effect of the decision on a person is relevant to identifying whether that person is the subject. In my view, the decision may be about a person, but the person would not be the subject if the decision unless the decision affects him or her.

[49] Furthermore, a person cannot be the subject of a decision if the effect on that person is only speculative or merely possible. At the same time, I do not accept that the effect of the decision on a person must first be known before that person could be identified as the subject of the decision. Therefore, I accept that the subject is one who is likely to be affected.

Conclusions on language

[50] The language of section 55 suggests that a person with standing to appeal to the Appeal Division must be a person or member of a class of persons identified in the decision, important in or to the decision, and likely to be affected by the decision.

II. The context in which the language is used

[51] Rizzo Shoes states that the provision must be read in its entire context.

Present context

[52] Section 55 appears in the DESD Act. The Applicant points out that section 20(1) of the DESD Act provides for the appointment of both worker representative and employer representative commissioners to the Canada Employment Insurance Commission. The Applicant suggests that this means that the overall scheme of the DESD Act is to balance the interests of employees and employers and to “analyze the facts provided by both employees and employers.”^{Footnote 24}

[53] I disagree that the overall scheme of the DESD Act is to balance employee and employer interests or to analyze facts from employees and employers. I also do not accept that the selection of commissioners to administer the Employment Insurance scheme has anything to do with the procedural requirements of the Tribunal.

[54] The “overall scheme” of the DESD Act is clearly much broader than mediating the interests of employees and employers. The DESD Act describes the structure of the Department of Employment and Social Development, the Ministry of Labour, the Canada Employment Insurance Commission, and the Tribunal. It also outlines the powers, duties, and functions that fall to each organization. Furthermore, the Tribunal has the power to hear appeals of Canada Pension Plan and Old Age Security decisions as well as Employment Insurance decisions.

[55] I accept that the broader context of the DESD Act suggests that the Appeal Division has the power to establish the criteria or the relevant factors by which it determines who is “the subject of the decision” under section 55. However, the overall scheme of the DESD Act does not otherwise help me to interpret section 55.

[56] In Hillier v Canada (Attorney General), the Federal Court of Appeal interpreted another of the procedural provisions of Part 5 of the DESD Act.^{Footnote 25} In Hillier, the Court was not overly concerned with the overall scheme of the DESD Act.

[57] What is important is how section 55 fits within the administrative appeal scheme. The appeal scheme includes the Commission’s reconsideration process and appeals to the General Division and Appeal Division. Certain sections of the Employment Insurance Act (EI Act) are also relevant context, as is Part 5 of the DESD Act, and some of the SST Regulations that govern the Tribunal’s processes.

[58] A good place to start is section 1 of SST Regulations. It defines a “party” at the Appeal Division. A party includes the appellant, all other parties to the proceeding in the General Division, and any person added as a party under section 10 of the SST Regulations.

[59] On the authority of section 1 of the SST Regulations, I accept that any person who is a party, or who was added as a party at the General Division, has standing to appeal to the Appeal Division.

[60] Section 1 also says that the appellant is a party. However, an applicant only becomes “the appellant” under section 1 of the SST Regulations after the Appeal Division agrees that the applicant is the subject of the decision and has standing to appeal. I do not read section 1 of the SST Regulations to say that the act of filing an appeal to the Appeal Division makes an applicant into a party or grants an applicant standing to appeal. This would make the test in section 55 meaningless.

[61] Section 55 is found in Part 5 of the DESD Act among a number of other provisions governing processes that are specific to the Appeal Division. However, Part 5 also contains procedural provisions for the General Division.

[62] The DESD Act does not expressly identify who has standing to appeal to the General Division. However, section 52 of the DESD Act says that an appeal to the General Division must be brought in the prescribed form and manner. Section 24(1) of the SST Regulations prescribes the form. It requires an appellant to include the date the decision on appeal was “communicated to the appellant.” Section 52(a) of the DESD Act also suggests that the only one who would be bringing an appeal is a person to whom the Commission has communicated the decision. It directs that an appellant must appeal to the General Division within 30 days after the date that the decision was communicated to the appellant.

[63] Section 113 of the EI Act says that the only decisions that may be appealed to the General Division are reconsideration decisions. Presumably, the Commission would not communicate the reconsideration decision to anyone outside of the class of persons who could have requested the reconsideration in the first place (under section 112(1) of the EI Act). According to section 112(1) of the EI Act, the only persons who may request a reconsideration from a decision of the Commission are the “claimant or otherperson who is the subject of a decision of the Commission, or the employer of the claimant” [emphasis added].

[64] For reconsideration purposes, section 112(1) of the EI Act associates “a claimant” and an “other person who is the subject of a decision” in a single phrase. “[T]he employer of the claimant” appears in another phrase, as an apparently distinct category of applicant. This distinguishes an employer’s ability to request a reconsideration from those who may seek a reconsideration because they are the subject of the appeal, including the claimant. If employers were invariably “the subject of the decision,” section 112(1) could have been written as follows: “the claimant, employer, or other person who is the subject of a decision.”

[65] Section 112(1) explicitly gives an employer of the claimant the ability to seek a reconsideration from the Commission. This ability does not dependent on the employer being the subject of the Commission decision. Assuming the Commission communicates the reconsideration decision to the employer, the employer would be able to appeal that decision to the General Division, regardless of whether it was “the subject of the decision.” This admits the possibility that an employer may be able to appeal a reconsideration decision to the General Division without being the subject of the decision.

[66] It also stands in contrast to the single requirement in section 55 that a person must be the subject of the decision to appeal to the Appeal Division. An employer would have to be the subject of the decision in order to appeal to the Appeal Division.

Historical context of section 55

[67] Both the Applicant and the Claimant have made arguments about the meaning of “subject of the decision” based on changes over time in the legislation that governs standing to appeal.

[68] The DESD Act created the Tribunal, including both of its General and Appeal divisions, to consolidate in one body, am ability to hear appeals of decisions made under different statutory benefit schemes. A person’s standing to appeal Employment Insurance decisions from the Board of Referees to the Umpire^{Footnote 26} was once addressed under section 115(1) of an older version of the EI Act.^{Footnote 27} The provision that described who may bring an appeal to the final level of administrative appeal was revised and moved from the EI Act to section 55 of the DESD Act in 2013.

[69] The former section 115(1) described those who had “an appeal as of right.” These included

1. a) the Commission;
2. b) a claimant or other person who is the subject of a decision of the Commission;
3. c) the employer of the claimant; or
4. d) an association of which the claimant or the employer is a member.

Right of employers to appeal

[70] Section 55 of the DESD Act now governs who may appeal to the Appeal Division. Anyone who wishes to appeal to the Appeal Division must be “the subject of the decision” at the General Division. This is clearly different from the list of those who may appeal as of right under Section 115(1) of an older version of the EI Act.^{Footnote 28}

[71] The Applicant believes that the change has opened up the class of those who may appeal. The Applicant cited the ejusdem generis principle. This principle suggests that where a list of specific items is followed by general language, the general language should be “read down” (in other words, the interpretation should be limited) to refer to only items with similar characteristics to those in the list.^{Footnote 29} The Applicant noted that section 55 of the DESD Act did nto recreate the list of those who are explicitly given a right of appeal. According to the Applicant’s reasoning, the removal of the list means that the language should not be read down any longer. Therefore, the “subject of the appeal” would not have to be a person of the same type as those in the list from the older version of the EI Act. The Applicant’s implication is that Parliament meant that all those in the former list would have standing to appeal under section 55. This would include employers and could potentially include others that were not in the section 115(1) list.

[72] However, I do not agree that the ejusdem generis principle applies to these circumstances in the manner proposed by the Applicant. The ejusdem generis principle is a principle that is used to interpret the general language of a statutory provision where that language follows a specific list. Under this principle, the general language should be understood to refer only to the types of things in the preceding list.

[73] While section 115(1) of the older version of the EI Act had a specific list of who could appeal, that list was not followed by general language. “[T]he subject of the decision” of section 55 of the DESD Act is not “general language” retained from section 115(1) of the EI Act. It was once the defining feature of one of those formerly listed as having the right to appeal, and it now describes the only person who may appeal.

[74] Furthermore, the ejusdem generis principle considers the context in which the general language is actually found. It is not meant to be used to interpret the meaning of a statutory provision by considering how it has changed. Ejusdem generis does not allow me to draw an inference from what the new legislative test has adopted or omitted from the former test.

[75] I appreciate that the creation of a new standing test might be viewed as an effort to create a generic standing test appropriate to all types of appeals. Section 115(1) of the older version of the EI Act dealt with standing to appeal decisions to the Umpire, which were about Employment Insurance matters. The Social Security Tribunal still hears Employment Insurance appeals. However, it also hears appeals on other matters. It would make little sense to distinguish an employer’s right of appeal when considering those other matters.

[76] However, I am not convinced that the Tribunal’s expanded jurisdiction means that it did not remove the “appeal by right” for employers as a class intentionally. If Parliament had meant to preserve an appeal by right for employers, it could still have done so. The drafters of section 55 could easily have retained a right of appeal for employers, or for any other particular class of person that might be appropriate to the other types of appeals heard by the SST. Parliament could have inserted such a right as an exception to the requirement that applicants prove that they are the subject of the decision.

[77] I accept that employers no longer have standing to appeal “as of right.” Under the new test, only those who are “the subject of the decision” can be said to have an appeal “as of right.” I agree with the Claimant that it is significant that section 55 no longer refers to the employer specifically. Employers cannot be presumed to be the subject of the decision or to have an appeal “as of right” just because they were formerly included in a list of persons who had a right of appeal.

Ability of employers to appeal

[78] The Applicant argues that the language of section 55 does not exclude employers from making appeals.^{Footnote 30} For her part, the Claimant makes an “implied exclusion” argument. ^{Footnote 31} She observes that the former legislation gave an employer standing to appeal separately from those who were the subject of the decision. According to the Claimant, Parliament has failed to follow this established pattern of expressly referencing the employer. From this, the Claimant suggests that employers and those who are the subject of the decision should be considered to be two mutually exclusive categories. This would mean that employers could not have standing to bring an appeal to the Appeal Division.

[79] I do not accept that employers and those who are the subject of the decision are mutually exclusive. It does not follow that the subject of the decision must exclude employers or that employers cannot possibly be the subject of the decision. The Claimant is correct that section 115(1) of the former EI Act named employers as having the ability to appeal to the Appeal Division and that section 55 now allows an appeal only from those who are the subject of the decision. However, section 115(1) also specifically identified the Commission as having the ability to appeal. It would be absurd to suggest that the Commission cannot be “the subject of the decision” or that it has no ability to appeal to the Appeal Division.

[80] Furthermore, the Appeal Division may hear appeals from General Division decisions that directly prejudice an employer’s rights, independently of the claimant’s entitlement to benefits. For example, the Commission may reconsider its decision and withdraw a penalty it imposed on the employer for making a false statement.^{Footnote 32} In such a situation, the claimant could be convinced that the employer should have to pay for interfering with its benefit claim and appeal that decision. Although the employer might choose not to participate in the appeal to the General Division, it may decide to appeal to the Appeal Division when the General Division re-imposes the penalty. The employer would clearly be “the subject” of a General Division decision where that decision concerns its liability to pay a penalty, even if the employer had not participated at the General Division.

[81] Section 115(1) gave employers of the claimant a right of appeal to the Umpire^{Footnote 33} that was independent of whether they were the subject of the decision. However, employers could also have qualified as the “the subject of the decision” in appropriate circumstances. There is no reason why employers could not also be the subject of the decision in appeals to the Appeal Division.

[82] I accept that section 55 does not prevent an applicant from appealing just because it may be an employer.

Conclusions about the context

[83] The context of section 55 of the DESD Act does little more than confirm that Parliament intends that all applicants for standing to the Appeal Division show that they are the subject of the decision.

[84] Employers are not presumed to be the subject of the decision but are also not excluded from appealing General Division decisions if they can show that they are the subject of the decision.

[85] Some applicants are “the subject” because they were parties at the General Division^{Footnote 34} or because the General Division accepted that they had a direct interest and added them as parties.^{Footnote 35} Other applicants must convince the Appeal Division that they are “the subject of the appeal” in some other way.

III. The purpose of the legislation

[86] According to Rizzo Shoes, statutory interpretation also requires that I read the statutory provision according to Parliament’s intention and purpose.

[87] I have mentioned that it is important to determine how section 55 fits into the administrative appeal scheme. In fact, the purpose of section 55 can only be understood by understanding the overall appeal scheme.

[88] The overall appeal scheme demonstrates two characteristics that I have found useful in considering Parliament’s intentions and what it meant by allowing appeals to the Appeal Division only from “the subject of the appeal.” The appeal scheme demonstrates both an increase in complexity and an increasingly restricted ability to access the appeal process, as a decision is challenged through successive levels of appeal.

Pattern of increasing complexity

[89] At the reconsideration level, the process is simple. On request, a Commission officer reviews the initial Commission decision and has the ability to change or confirm the decision. The process is an information-gathering process, although new issues may arise during the investigation that might affect the outcome. Wherever possible, a Commission agent will speak to the person making the request to get a better understanding of why he or she wants the decision reconsidered. The Commission will usually give the person a chance to respond to any contrary information that it  has or obtains, but a person’s opportunity to participate is limited. There is no formal hearing.

[90] The next step is an appeal to the General Division. This process is a little more involved. The General Division is restricted to considering only those issues arising from the reconsideration decision. There is a more formal hearing process, which is usually fact-driven. By this, I mean that the appellant tries to convince the General Division that the evidence better supports a conclusion that is different from the Commission’s conclusion. All participating parties are given the opportunity to present additional evidence, to argue how that evidence should be interpreted, and to argue how the law applies to the evidence. Parties are also given the opportunity to respond to the evidence against them and the arguments of the other parties.

[91] The process at the Appeal Division is more involved and also more technical. To appeal to the Appeal Division, applicants must first get leave to appeal. This means that an applicant must show the Appeal Division that they have a reasonable chance of success in the appeal, before the Appeal Division will allow the appeal to proceed to a hearing on the merits. The appeal is based on the evidence in the General Division record and new evidence is not allowed. Applicants must focus their arguments on how the General Division made one of a few specific errors that section 58(1) of the DESD Act describes as the grounds of appeal. To get leave and ultimately be successful in the appeal, an applicant would generally need to know how the General Division process unfolded, what evidence was before the General Division, and how the General Division applied the law to the evidence.

Pattern of increasing exclusivity

[92] As the process becomes more complex, it also becomes more exclusive.

[93] The Commission’s reconsideration process has few restrictions. It is open to anyone to whom the Commission communicates an initial decision. This could include anyone who is “the subject of the decision,” as well as the Commission, employers, or even associations in which a claimant or the claimant’s employer is a member, regardless of whether they are the subject of the decision.

[94] The General Division is more restrictive in who may participate. Anyone who could request a reconsideration can also appeal to the General Division, assuming that the Commission communicated the decision to them. However, only the appellant and the respondent have the right to participate at the General Division. Any others who wish to participate must first prove that they were directly affected by the decision or have a “direct interest.”

[95] Like the General Division, the Appeal Division requires a person to have a direct interest to be added as a party. However, the Appeal Division is more restrictive than the General Division when it comes to who it will allow to initiate an appeal. Anyone who was not a party at the General Division must show that they are the subject of the General Division decision.

[96] To give an example of how access to appeal becomes more restrictive as a challenge advances through the levels of appeal, , consider an employer who wishes to appeal a claim for benefits issue. The Commission would likely contact the employer in the course of the initial investigation and decision-making, or at the reconsideration stage. The employer could seek a reconsideration without being the one seeking benefits (or “the subject of the decision”) or it could provide input to a claimant’s reconsideration at any time. If the employer was not satisfied with the reconsideration decision, it could appeal to the General Division. However, if the Claimant or the Commission appealed the reconsideration decision, the employer could not participate unless the General Division added it as a party. For this to happen, the employer would have to convince the General Division that it had a direct interest in the decision.

[97] If the employer participated at the General Division then it would be a party and could appeal to the Appeal Division. However, if the employer did not appeal to the General Division and was never added as a party, it would not have the same “right” to appeal the General Division decision to the Appeal Division as it would have had to appeal the reconsideration decision to the General Division. To appeal to the Appeal Division, it would have to show that it is “the subject of the decision.” In other words, the Appeal Division adds a requirement that the General Division does not have, for those who want to initiate the appeal.

[98] The overall appeal scheme suggests that Parliament intended the Appeal Division to be more selective than to the General Division about who may be permitted to bring an appeal. This is not surprising. Advancing through levels of appeal becomes progressively more exclusive in most administrative or judicial appeal systems.

Consistency and fairness

[99] One purpose of any quasi-judicial appeal scheme is to act predictably. That requires consistency. Another is to act fairly. Therefore, I should interpret “the subject of the appeal” to be consistent with the appeal scheme and in a way that is fair to those with a stake in the appeal.

Consistency

[100] To get involved in an ongoing Tribunal appeal that someone else started, a person does not have to have any previous involvement in the appeal. However, the person must show that he or she has a direct interest in the decision, regardless of whether the appeal is at the General Division or the Appeal Division.^{Footnote 36}

[101] However, if a person is not directly affected by a Commission decision that was appealed to the General Division, that person will not be directly affected by the General Division decision either. It would be inconsistent for the Tribunal to disqualify a person from participating at the General Division, but then allow the person to participate in the appeal from the General Division. Where the General Division has found that a person does not have a direct interest at the General Division, that person cannot participate at the Appeal Division either, because of that finding.

[102] The General Division could add any applicant that it found to have a direct interest as a party at the General Division. As a result, that person would also have the ability to appeal to the Appeal Division. However, in some cases a person seeking to appeal a General Division decision to the Appeal Division may not even have applied to be added to the General Division process. In such a case, the General Division would not have considered whether the person did or did not have a direct interest.

[103] In my view, a person who did not apply to be added to the General Division appeal should not be in a better position at the Appeal Division than a person who tried unsuccessfully to participate at the General Division. If a person would not have been allowed to participate at the General Division, that person should not be allowed to participate at the Appeal Division.

[104] The Tribunal requires a person to demonstrate a direct interest to be added as a party at the General Division. It also requires that a person have a direct interest to be added at the Appeal Division. However, for the Appeal Division process to be consistent with the General Division process, I find that a person who was not a party at the General Division cannot initiate an appeal to the Appeal Division without also demonstrating a direct interest. Having a direct interest is at least one of the requirements for an applicant to qualify as “the subject of the decision.”

Fairness

[105] When none of the parties who participated at the General Division has appealed a General Division decision, the party who obtained some measure of success at the General Division should be entitled to some certainty or finality. It would not be fair to that party to allow a last-minute intervener in the process to appeal to disrupt a decision in which the intervener does not have a direct interest.

[106] However, the Appeal Division allows “the subject of the decision” to make a final appeal even though that person may not have been a party at the General Division. In my view, such an appeal should only be permitted to proceed when the applicant’s interests are directly affected. The Appeal Division should not grant an applicant standing to appeal where the applicant’s purpose is to interfere with the interests of another, or to further its own collateral interests.

[107] In fact, it should be even more difficult to get standing to appeal at the Appeal Division than it is to participate in any way at the General Division. As I noted, the appeal scheme indicates a trend of increasing complexity and exclusivity as a decision is challenged through successive appeals.

[108] A person who was neither an appellant nor a respondent at the General Division must demonstrate a direct interest to be added as a party to participate at the General Division. A person who was neither an appellant nor a respondent at the General Division nor added as a party can still join an appeal at the Appeal Division by demonstrating a direct interest.

[109] However, the Appeal Division should not allow a person to initiate an appeal at the Appeal Division without showing something more than a direct interest.

Subject matter of the appeal

[110] The Tribunal adjudicates appeals of decisions about benefits or sanction decisions that are associated with particular benefit legislation. The Tribunal was created to offer some recourse to those who feel that one of those decisions is unfair to them. It also provides the Commission with the means to defend its decisions.

[111] One of the definitions for “subject” that was offered by the Applicant suggests an additional criterion for “the subject of the decision.” This is the definition that would require the decision to be “about” the subject.

[112] The Claimant connected “the subject of the decision” to the purpose or objective of the decision. She described “the subject of the decision” as the primary object of the decision. I agree with the Claimant that the purpose of the decision is key to determining whom the decision is about.

[113] The purpose of every decision under the EI Act is to determine someone’s entitlement to benefits or liability to penalties or sanctions that are described under the EI Act. That is the subject matter of the decision. It is self-evident that the General Division decision must be “about” the subject matter of the decision. For the decision to be about the subject, the subject must be a person with a direct interest in the subject matter. That means that the “direct interest” should be understood narrowly, to refer to the applicant’s own entitlement to benefits or other rights, or their jeopardy from penalties or other sanctions under the EI Act.

[114] Therefore, it is irrelevant how many times the General Division references the Applicant or the degree to which its information was helpful to the decision. If an applicant had some entitlement or jeopardy under the EI Act that the decision was likely to affect, then the applicant would be the subject of the decision, even if they refused to talk to the Commission and the decision mentions them only in passing. However, an applicant will not be the subject of the decision if their entitlement or jeopardy is not likely to be directly affected by the decision. This is true even if the applicant is mentioned a hundred mentions in the decision or if the decision result depends entirely on the applicant’s information.

Summary of test for standing to appeal

[115] I have considered the language of section 55, the context in which the language is used; and the purpose of the appeal scheme. Any person who was a party at the General Division, regardless of whether the General Division added that person to the appeal process, qualifies as the subject of the decision. A party at the General Division may always appeal the decision to the Appeal Division, even if the appeal does not concern that person’s own rights or benefits, or obligations, costs, or penalties.

[116] In other cases, “the subject of the decision” may be identified by two necessary characteristics:

1. The subject is a person or persons that is likely be directly affected by the decision.
2. The decision must primarily affect the subject’s own entitlement to benefits or their liability for sanctions under the applicable benefit scheme (in this case, the EI Act).

Application to the facts

[117] I acknowledge that the General Division recognized the Applicant by name, and by its position as the former employer of the Claimant. The Applicant is identified in the appeal record and also referenced in the decision. I also acknowledge that the Applicant has maintained a significant interest in participating in the process. It applied to be added as a party at the General Division.

[118] The General Division cited case law that stated that a party has a direct interest when it is directly affected, legal obligations are imposed on it, or it is prejudiced in some direct way.^{Footnote 37} It stated that there was no evidence its decision would impose a legal obligation on the Applicant, bind the Applicant, or otherwise directly prejudice the Applicant.

[119] The General Division refused the Applicant’s application to be added and the Applicant sought leave to appeal that refusal to the Appeal Division. Unfortunately for the Applicant, it did not appeal the General Division’s refusal to allow it to participate until the General Division issued its decision on the merits of the appeal. By then, the Applicant was out of time to appeal. The Appeal Division denied the Applicant an extension of time.

Direct interest in the decision

[120] The Applicant continues to argue that the General Division findings could affect its other legal proceedings and that the decision may affect how it deals with its employees in the future. However, the General Division has already found that the Applicant did not have a direct interest. The Applicant was not a party, and was not added as a party at the General Division level. Regardless of whatever interest the Applicant may have or claim in the General Division decision, the General Division’s determination that the Applicant does not have a direct interest stands.

[121] Since the Applicant did not have a direct interest in the General Division decision when it applied to be added as a party, it has no direct interest in the General Division decision now. Therefore, the Applicant is not the subject of the decision because it does not meet the first criterion.

Affect on applicant’s entitlements or jeopardy under the EI Act

[122] The Applicant does not meet the second criterion either. It has not identified how the General Division decision is likely to affect any right or benefit to which it is entitled or may be entitled under the EI Act and Employment Insurance Regulations (EI Regulations). Nor has it identified how the decision could affect its jeopardy from penalties or other sanctions under the EI Act or EI Regulations.

[123] The General Division decision is about the Claimant’s entitlement to benefits. It does not concern any of the Applicant’s rights, benefits, or jeopardy under the Employment Insurance scheme. It does not require the Applicant to do anything under the EI Act or EI Regulations nor prohibit the Applicant from doing anything.

[124] The Applicant was not seeking a benefit available under the EI Act or EI Regulations, nor the reversal or reduction of any penalty or other sanction. The Applicant has stated that it was principally concerned with how some of the General Division’s findings would affect its ongoing civil litigation and a human rights complaint. These matters are not contemplated by the EI Act and were not within the jurisdiction of the General Division.

[125] The General Division did not consider how some other legal proceeding might make use of its findings; nor was it required to do so. I cannot rule out the possibility that the decision may have some indirect effect on the Applicant’s other legal disputes with the Claimant, but those effects are, at most, indirectly related to any rights or responsibilities the Applicant may have under the EI Act or EI Regulations. Whatever decision flows from those separate proceedings will not change or challenge the General Division’s decision on the Claimant’s entitlement to benefits.

[126] The Applicant has not demonstrated that the General Division decision is likely to affect how it accommodates injured employees. Also, it has not satisfied me that this is a direct effect of the decision or shown that how it accommodates its employees has anything to do with the Applicant’s own entitlements or jeopardy under the Employment Insurance benefit scheme.

[127] I find that the decision is unlikely to affect the Applicant’s entitlements or jeopardy under the Employment Insurance benefit scheme.

[128] I find that the Applicant is not “the subject of the decision” within the meaning of section 55 of the DESD Act.

Response to guidance from Francis

[129] In Francis, the Federal Court said that the Appeal Division should have considered that the employer chose not to participate, and it said that this raised certain questions about the appeal rights of employers. I will address those questions now.

[130] The Federal Court said that the Appeal Division should have asked itself if employers that choose not to participate should have to establish grounds or reasons why they should be allowed to participate at the Appeal Division level.^{Footnote 38} The Federal Court’s question implies that it considered the employer’s neglect of its appeal rights at the General Division to be relevant to whether the employer could be found to be “the subject of the decision” at the Appeal Division. In other words, the employer’s choice not to participate could potentially disqualify it from being “the subject,” even if the Appeal Division might otherwise have found the employer to be the subject according to other factors or criteria.

[131] Francis also asked if employers have full participatory rights at the Appeal Division, or the right to file new evidence or make new arguments, when they did not participate at the General Division. In asking these questions, Francis appears to have been suggesting that the Appeal Division may have granted a limited standing to the employer in the circumstances, where the employer could have appealed but with possible limits on its procedural rights.

[132] As the Federal Court noted, its questions arose out of the particular facts of the case. In this case, the facts are different. First, the Applicant cannot be faulted for neglecting to participate at the General Division. It attempted to participate by applying to be added as a party. Second, the General Division has already found that the Applicant does not have a direct interest and refused to add it as a party. Because the Applicant does not have a direct interest, the General Division refused to add the Applicant as a party.

[133] Therefore, the Applicant’s failure to participate is not a factor in this case, as it was in Francis. However, the General Division’s finding that it does not have a direct interest and its refusal to add the Applicant as a party is a factor here, whereas it was not a factor in Francis.

[134] It is not clear how the Federal Court’s questions could apply in this case. In X (the decision reviewed in Francis), the Appeal Division determined that the employer was the subject of the decision. The Federal Court was understandably interested in what that meant for the employer’s participation. However, I have found that the Applicant is not the subject of the decision and that it cannot appeal to the Appeal Division. I have no reason to consider whether the Applicant should have had full participatory rights, or the ability to make new arguments. These questions would only be relevant if I had found the Applicant to be “the subject of the decision.”

Conclusion

[135] The Applicant does not have standing to appeal to the Appeal Division.

[136] Because I am not allowing the Applicant to appeal, there is no need for me to consider whether I should grant leave to appeal.