Employment Insurance (EI)

Decision

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

Overview

[2] The Applicant (Claimant) applied for employment insurance (EI) regular benefits in July 2021. On November 20, 2021 he left Canada to reside at a second home in the U.S.A. The Respondent (Commission) decided that he was disentitled to benefits because he was outside Canada.

[3] The Claimant appealed this decision to the Tribunal’s General Division. His appeal was dismissed. He now seeks leave to appeal the General Division decision to the Appeal Division. He argues that the General Division made an error of law.

[4] I have to decide whether there is some reviewable error of the General Division on which the appeal might succeed. I am refusing leave to appeal because the Claimant’s appeal has no reasonable chance of success.

Issue

[5] Does the Claimant raise some reviewable error upon which the appeal might succeed?

Analysis

[6] The Department of Employment and Social Development Act (DESD Act) sets out the only grounds of appeal of a General Division decision.^{Footnote 1} An appeal is not a rehearing of the original claim. Instead, I must decide whether the General Division:

1. a) failed to provide a fair process;
2. b) failed to decide an issue that it should have, or decided an issue that it should not have;
3. c) based its decision on an important factual error;^{Footnote 2} or
4. d) made an error in law.^{Footnote 3}

[7] Before the Claimant can move on to the next stage of the appeal, I have to be satisfied that there is a reasonable chance of success based on one or more of these grounds of appeal. A reasonable chance of success means that the Claimant could argue his case and possibly win.

[8] I will grant leave if I am satisfied that at least one of the Claimant’s stated grounds of appeal gives the appeal a reasonable chance of success. It is a lower threshold than the one that must be met when the appeal is heard on the merits later on in the process if leave to appeal is granted.

[9] Before I can grant leave to appeal, I need to be satisfied that the Claimant’s arguments fall within any of the grounds of appeal stated above and that at least one of these arguments has a reasonable chance of success. I should also be aware of other possible grounds of appeal not precisely identified by the Claimant.^{Footnote 4}

Does the Claimant raise some reviewable error upon which the appeal might succeed?

[10] As a general rule, claimants cannot receive EI benefits for periods spent outside of Canada.^{Footnote 5} There are certain exceptions to this found at section 55 of the Employment Insurance Regulations (EI Regulations).

[11] In his application for leave to appeal, the Claimant argues that the General Division made an error of law by finding that it did not have the authority to expand the listed exceptions in section 55. He argues that section 55 of the EI Regulations is not an exhaustive list and the Tribunal has the authority to read-in an exception for individuals who are residing in their second home outside of Canada.

[12] The Claimant argues that a proper statutory interpretation of section 37(b) of the EI Act and section 55 of the EI Regulations requires a broad and liberal interpretation respecting the intentions and objectives of the EI Act. In his view, this interpretation would allow for an exception for claimants residing at a second home outside of Canada to be read-in to section 55.

[13] The Claimant’s argument has no reasonable chance of success. The General Division considered in its decision whether it could expand the exceptions in section 55. At the General Division, the Claimant also argued that section 55 does not say that it is an exhaustive list which leaves the Tribunal with the authority to expand it.

[14] The General Division rejected this argument. It considered the text of section 37(b) of the EI Act, which states “except as may otherwise be prescribed”.^{Footnote 6} Section 55 of the EI Regulations is where the exceptions are prescribed. The General Division found that there is nothing in the language of section 55 to suggest that other circumstances may be taken into consideration. It noted that other sections of the EI Act state when the list is not exhaustive and additional circumstances can be taken into consideration.^{Footnote 7}

[15] The Claimant relies on decisions of the Supreme Court of Canada in support of his position that an additional exception can be read into section 55.^{Footnote 8} However, these decision involved the interpretation of the words used in a provision of legislation. The case law does not support the proposition that an additional exception can be read into legislation where the text does not support such an interpretation. Section 55 of the EI Regulations does provide an exhaustive list of exceptions to the general rule in section 37(b) of the EI Act.^{Footnote 9}

[16] The General Division properly interpreted and applied the law. It considered the Claimant’s arguments that the law, as written, doesn’t recognize that claimants no longer need to be physically present in Canada in order to apply for jobs and attend interviews. The General Division properly found that the Tribunal must apply the law as written.^{Footnote 10} I am not satisfied that the appeal has a reasonable chance of success.

[17] I have also considered other grounds of appeal. After reviewing the record, I have not identified any errors of fact or jurisdiction. There is no arguable case that the General Division failed to provide a fair process.

Conclusion

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