Employment Insurance (EI)

Decision

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

Overview

[2] The Applicant (Claimant) applied for Employment Insurance (EI) regular benefits and reported that he was outside of Canada. The, Respondent, the Canada Employment Insurance Commission (Commission), decided that the Claimant was disentitled from receiving EI regular benefits from September 28, 2020, to July 30, 2021, because he was outside of Canada and not available for work. Upon reconsideration, the Commission maintained its initial decision. The Claimant appealed the reconsideration decision to the General Division.

[3] The General Division found that the Claimant left Canada on August 19, 2020, and returned August 2, 2021. It found that the Claimant did not meet any exceptions mentioned in the law. It also concluded that the Claimant was not available for work within the meaning of the law. The General Division concluded that the Claimant remained disentitled to EI benefits from September 28, 2020, to July 30, 2021.

[4] The Claimant now seeks leave to appeal of the General Division’s decision to the Appeal Division. He submits that he was supposed to come back to Canada on November 25, 2020, but the flights he tried to take were always cancelled because of the pandemic. The Claimant submits that he should be eligible from November 25, 2020, because the situation was out of his control. He puts forward that he was in constant communication with his managers from work for signs to return to work.

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

[6] I am refusing leave to appeal because the Claimant’s appeal has no reasonable chance of success.

Issue

[7] Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed?

Analysis

[8] 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.

[9] 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.

[10] 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?

[11] In support of his application for leave to appeal, the Claimant submits that he was supposed to come back to Canada on November 25, 2020, but the flights were constantly cancelled because of the pandemic. The Claimant submits that he should be eligible from November 25, 2020, because the situation was out of his control. He puts forward that he was in constant communication with his managers from work for signs to return to work.

[12] There is no dispute that the Claimant left Canada on August 19, 2020, and returned August 2, 2021.

[13] The law stipulates without ambiguity that a claimant is not entitled to receive benefits for any period during which the claimant is not in Canada,^{Footnote 1} unless the claimant falls under one of the exceptions set out in in the law.^{Footnote 2}

[14] Furthermore, even if a claimant meets an exception, they must still demonstrate their availability to work even though they are outside Canada.^{Footnote 3}

[15] The evidence before the General Division shows that the Claimant was not capable of returning to Canada within a reasonable time, if he had been invited to attend an interview or offered a position.

[16] As stated by the General Division, the Tribunal does not have the authority to vary the exceptions prescribed by law because the Claimant had difficulty returning to Canada during the pandemic. Only Parliament has the authority to do so.

[17] After reviewing the appeal docket and the General Division’s decision as well as considering the Claimant’s arguments in support of his request for leave to appeal, I have no choice but to find that the appeal has no reasonable chance of success.

Conclusion

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