Employment Insurance (EI)

Decision

[1] Leave to appeal is refused. The appeal will not proceed.

Overview

[2] In December 2020, the Applicant (Claimant) was laid off from her job as a retail store manager because of Covid-19 public health measures. She established an initial claim for regular EI benefits as of December 6, 2020. Based on the Covid-19 emergency response measures in force at that time, the Claimant was deemed to have an additional 300 hours of insurable employment in her qualifying period. This was in excess of what she needed to qualify for benefits.

[3] In April 2021, the Claimant applied for 15 weeks of EI maternity benefits and 35 weeks of EI parental benefits for the child she was expecting on April 14, 2021. The Respondent (Commission) renewed her December 6, 2020, claim. She would receive 15 weeks of maternity benefits and 19 weeks of parental benefits. She would not receive the 35 weeks of EI parental benefits she applied for, because the benefit period on her renewal claim could not extend beyond December 4, 2021.

[4] The Claimant asked the Commission if she could carry forward the one-time credit of insurable hours. She wanted to use it to help her qualify on a new claim so she could receive the full 35 weeks of parental benefits. The Commission denied her request because the law does not allow a claimant to choose which benefit period the one-time credit of insurable hours will apply. The Claimant appealed the reconsideration decision to the General Division.

[5] The General Division found that the Commission correctly applied a one-time credit of 300 hours of insurable employment to the initial claim for regular EI benefits that the Claimant established as of December 6, 2020. It found that the Claimant could not carry the one-time credit of hours forward to establish a subsequent claim for EI benefits.

[6] The Claimant seeks leave to appeal of the General Division’s decision to the Appeal Division. She submits that the General Division is not valid or fair considering her situation.

[7] I sent a letter to the Claimant requesting that she explain in detail her grounds of appeal. The Claimant did not reply within the allowed time.

[8] I must decide whether there is some reviewable error of the General Division upon which the appeal might succeed.

[9] I am refusing 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 specifies the only grounds of appeal of a General Division decision. These reviewable errors are that:

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

[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.

[13] At the leave to appeal stage, the Claimant does not have to prove her 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.

[14] Therefore, before I can grant leave, I need 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?

[15] The Claimant, in support of her application for leave to appeal, submits that the General Division decision is not valid or fair considering her situation.

[16] The Claimant stopped working due to a shortage of work. She established an initial benefit period effective December 6, 2020.

[17] The law provides that a claimant who makes an initial claim for regular benefits on or after September 27, 2020, or in relation to an interruption of earnings that occurs on or after that date, is deemed to have in their qualifying period an additional 300 hours of insurable employment.^{Footnote 1}

[18] The law does not provide an option to apply the additional hours to a future claim when the claimant establishes sufficient hours within the qualifying period to meet the entry rate to qualify for benefits without the credit of hours.

[19] The Claimant’s one-time credit of hours was correctly applied to the qualifying period of her December 6, 2020, claim for regular EI benefits. As such, it is not available for use to qualify on a subsequent claim for EI benefits.

[20] Despite my sympathy for the Claimant, the General Division could not have granted her request to carry forward the one-time credit of hours without committing an error of law. Neither the General Division nor the Appeal Division has the authority to deviate from the rules Parliament established for granting benefits.

[21] I find that the Claimant has not raised any issue of fact, law, or jurisdiction that could justify setting aside the decision under review.

[22] After reviewing the appeal file, the General Division decision, and the arguments in support of the application for leave to appeal, I have no choice but to find that the appeal has no reasonable chance of success.

Conclusion

[23] Leave to appeal is refused. This means the appeal will not proceed.