Employment Insurance (EI)

Decision

[1] An extension of time to apply for leave to appeal is granted. Leave to appeal is refused. This means the appeal will not proceed.

Overview

[2] The Applicant (Claimant) applied for EI family caregiver benefits. The Respondent, the Canada Employment Insurance Commission (Commission), approved the Claimant’s benefits. He was paid 15 weeks of family caregiver benefits followed by two weeks of sickness benefits. A couple of months later, the Commission told the Claimant that he had not worked enough hours to qualify. It asked him to repay the benefits he had received. The Claimant appealed the Commission’s reconsideration decision to the General Division.

[3] The General Division concluded that the Commission could review the Claimant’s claim because it was within the allowed 36 months. It concluded that the Claimant did not have enough hours to qualify and therefore did not qualify for EI family caregiver benefits. The General Division concluded that it did not have the authority to write-off the Claimant’s debt.

[4] The Claimant now seeks leave to appeal of the General Division’s decision to the Appeal Division. He submits that the General Division did not decide the proper issue. He puts forward that he knows he does not have enough hours to qualify but argues that it was the Commission’s error and that he should not have to repay the benefits.

[5] I must decide whether I am granting an extension of time to apply for leave to appeal. If I do, I must decide whether there is some reviewable error of the General Division upon which the appeal might succeed.

[6] I am granting the Claimant an extension of time to apply for leave to appeal but refusing leave to appeal because the Claimant’s appeal has no reasonable chance of success.

Issues

[7] Issue 1: Was the application for leave to appeal filed on time?

[8] Issue 2: Does the Claimant’s appeal have a reasonable chance of success based on a reviewable error the General Division may have made?

Analysis

[9] 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.

[10] 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.

[11] 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.

Issue 1: Was the application for leave to appeal filed on time?

[12] No. The Claimant received the General Division decision on September 27, 2021. The Claimant filed his application for leave to appeal on November 2, 2021. The Claimant explains that he always wanted to appeal within the delay but started a new position in a hospital and was overwhelmed with the COVID situation.

[13] I find that it is in the interest of justice to grant the Claimant an extension of time to apply for leave to appeal. The delay is not excessive, and the extension of time does not prejudice the Commission.^{Footnote 1}

Issue 2: Does the Claimant’s appeal have a reasonable chance of success based on a reviewable error the General Division may have made?

[14] The General Division concluded that the Claimant did not have enough hours to qualify for EI family caregiver benefits.

[15] In support of his application for leave to appeal, the Claimant submits that the General Division did not decide the proper issue. He puts forward that he knows he does not have enough hours to qualify but argues that it was the Commission’s error and that he should not have to repay the benefits.

[16] As stated by the General Division, the Federal Court of Appeal has clearly and consistently found that a claimant who receives money to which they are not entitled, even as a result of a mistake by the Commission, is not excused from having to repay it.^{Footnote 2}

[17] Furthermore, the legislation does not allow discrepancy and does not give the Tribunal discretion in its application.^{Footnote 3}

[18] Unfortunately, for the Claimant, he received benefits, which he was not entitled to receive. Therefore, he is liable to repay those amounts.

[19] In his application for leave to appeal, the Claimant has not identified any reviewable errors such as jurisdiction or any failure by the General Division to observe a principle of natural justice. He has not identified errors in law nor identified any erroneous findings of fact, which the General Division may have made in a perverse or capricious manner or without regard for the material before it, in coming to its decision.

[20] After reviewing the docket of appeal, the decision of the General Division and considering the arguments of the Claimant in support of his request for leave to appeal, I find that the appeal has no reasonable chance of success.

Conclusion

[21] An extension of time to apply for leave to appeal is granted. Leave to appeal is refused. This means the appeal will not proceed.