Employment Insurance (EI)

Decision

[1] I am refusing leave (permission) to appeal because the Claimant doesn’t have an arguable case. The appeal will not proceed.

Overview

[2] J. P. is the Claimant. He applied for Employment Insurance (EI) regular benefits. The Canada Employment Insurance Commission (Commission) started a claim and paid him beginning on February 14, 2021.^{Footnote 1}

[3] The Commission later conducted a review of the file. It decided that the Claimant was not entitled to EI benefits from February 14, 2021, because he did not have an interruption of earnings.^{Footnote 2} The Commission cancelled the claim and established an overpayment.

[4] The Tribunal’s General Division dismissed the Claimant’s appeal because it found that he didn’t suffer an interruption of earnings prior to the start of the February 14, 2021, benefit period.

[5] The Claimant wants to appeal the General Division decision to the Appeal Division. He needs permission for the appeal to move forward.

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

Issue

[7] Is there an arguable case that the General Division made an error of law?

[8] Is there an arguable case that the General Division did not provide a fair process when it failed to explain temporary changes in the waiting period?

[9] Is there an arguable case that the General Division made a reviewable error in this case?

Analysis

The test for getting permission to appeal

[10] An appeal can only proceed if the Appeal Division gives permission to appeal.^{Footnote 3} I must be satisfied that the appeal has a reasonable chance of success.^{Footnote 4} This means that there must be some arguable ground upon which the appeal might succeed.^{Footnote 5}

[11] To meet this legal test, the Claimant must establish that the General Division may have made an error recognized by the law.^{Footnote 6} If the Claimant’s arguments do not deal with one of these specific errors, the appeal has no reasonable chance of success and I must refuse permission to appeal.^{Footnote 7}

[12] In this case, the Claimant selected two grounds of appeal on his Application to the Appeal Division. He said the General Division made an error of fact and an error of law. He didn’t specify which of his arguments were intended to relate to errors of fact or law, so I considered the statements and found that all of his grounds can be best described as alleged errors of law, and an allegation of an unfair process.

There is no arguable case that the General Division made an error of law

The “waiting period” and an “interruption of earnings” are not the same

[13] The Claimant submits that the General Division made a mistake when it found that he didn’t meet the criteria to establish that he experienced an interruption of earnings.^{Footnote 8} He says the General Division ignored the fact that the waiting period and the seven-day interruption in earnings refer to the same time.^{Footnote 9} He says that since the waiting period was waived for claims established from January 31, 2021, until September 25, 2021, the requirement of a seven-day interruption of earnings was also eliminated.

[14] The Claimant is alleging that the General Division made a legal mistake by not recognizing that the waiting period and an interruption of earnings are the same period.

[15] The General Division specifically addressed the Claimant’s argument that the waiting period and an interruption of earnings are the same. It found that while the Federal Government may have waived the EI waiting period for a specific time during the pandemic, this was not relevant to the issue of whether there was an interruption of earnings. It said the waiting period occurs after the beginning of a benefit period, but an interruption of earnings occurs before a benefit period starts.^{Footnote 10} It also referred to the two separate sections of law that establish both concepts.^{Footnote 11}

[16] The Employment Insurance Act says that to qualify for benefits, a person must have an interruption of earnings.^{Footnote 12} The Employment Insurance Regulations say that an interruption of earnings occurs when three criteria are met:

1. a) The claimant is laid off or terminated from their employment
2. b) The claimant doesn’t work for seven consecutive days for the employer and
3. c) The claimant doesn’t receive any earnings from the employment.

[17] There are other circumstances where an interruption of earnings may exist, but the General Division considered them and found they didn’t apply.^{Footnote 13}

[18] The law says the waiting period is a one-week period where the Claimant isn’t paid benefits, after establishing a claim.^{Footnote 14} It is similar to the concept of a deductible in other types of insurance. The Federal Government temporarily waived the waiting period to allow people who qualified for EI benefits to receive them immediately, without the requirement of serving one unpaid week.

[19] There is no arguable case that the General Division made an error of law when it found that the waiting period and an interruption of earnings are different concepts and relate to different time periods because the decision is supported by the law.

The waiting period is not an issue in this case

[20] The Claimant also says the General Division made an error of law when it decided that the waiving of the waiting period during the COVID-19 pandemic was not relevant to whether the Claimant experienced an interruption of earnings.^{Footnote 15}

[21] The General Division explained the meaning of the term, “interruption of earnings,” and why the waiting period was not an issue in the case.^{Footnote 16} It also explained that to qualify for EI regular benefits, a claimant must suffer an interruption of earnings and have enough hours of insurable employment.^{Footnote 17} The Claimant said that he didn’t have a period of seven consecutive days without work or earnings in the qualifying period.^{Footnote 18} The General Division made its decision based on this evidence.

[22] The General Division found the waiting period is a one-week period at the beginning of a claim, when claimant cannot receive benefits. This was briefly waived during the COVID-19 pandemic. The requirement to have an interruption of earnings, with at least seven days without work done or earnings made, is a different concept than the waiting period. There was no waiver allowing that claims for EI benefits could be started without an interruption of earnings.

[23] There is no arguable case that the General Division made an error of law when it decided the waiver of the waiting period was not an issue under appeal. While the Claimant raised this issue in the context of supporting his contention that he didn’t have to have an interruption of earnings, the General Division did not make a mistake when it found the law didn’t support that interpretation.

The General Division did not ignore relevant evidence

[24] The Claimant also submitted that the General Division made a mistake when it decided that there was “no evidence to support that the Commission ignored relevant factors, considered irrelevant factors, failed to act in good faith, or acted in a manner that was discriminatory.”^{Footnote 19}

[25] The Claimant says that during the period when the waiting period was waived, the Parliamentary Budget Committee reported on the cost of the waiver. He said the cost of the policy across multiple types of EI benefits was calculated, and if the “7-day period of interruption of earning was not waived there would be no additional cost to the EI budget.”^{Footnote 20} He referred to his submission to the General Division, saying the evidence was ignored.^{Footnote 21}

[26] There is no arguable case that the General Division ignored relevant evidence. The General Division doesn’t have to refer to every piece of evidence in a file; it is presumed to have considered everything.^{Footnote 22} The General Division acknowledged the argument about waiving the waiting period, but found it wasn’t relevant because the issue was an interruption of earnings.^{Footnote 23} As such, the General Division wasn’t required to specifically mention evidence related to the waiting period.

There is no arguable case that the General Division didn’t provide a fair process when it failed to explain temporary changes in the waiting period

[27] The Claimant said that one of the reasons he appealed was because the General Division did not provide a legal definition of “waiting week waived” in the context of the COVID-19 pandemic, and didn’t address “what the Minister of Employment intended by the Government of Canada’s announcement.”^{Footnote 24} In another document, he explained that he wanted to know, “what purpose did the Federal government’s Cabinet Minister for Employment Carla Qualtrough mean or intend. That announcement was made January 29, 2021, effective from January 31, 2021, until September 25, 2021.”^{Footnote 25}

[28] There is no arguable case that the General Division was procedurally unfair. The issue in this appeal was an interruption of earnings. Since the waiting period was not under appeal, the General Division didn’t make a mistake by not explaining it.

[29] Further, the Claimant is referring to statements made by the Federal Government. The General Division could not have answered the Claimant’s question about what the Government or a specific Minister meant. The Tribunal does not speak for the Government or any of its Ministers. It is clear from the dates provided by the Claimant that he is asking about statements made relative to the waiver of the waiting period. Again, this was not an issue in the appeal, so the General Division could not have made a mistake by not responding to this submission.

There is no arguable case that the General Division made a reviewable error

[30] I reviewed the entire file to make sure the General Division didn’t make a mistake. I considered the documents in the file, examined the decision under appeal, and satisfied myself that the General Division did not misinterpret or fail to properly consider any relevant evidence.^{Footnote 26}

[31] The Tribunal must follow the law, including the Department of Employment and Social Development Act. It provides rules for appeals to the Appeal Division. The Appeal Division does not provide an opportunity for the parties to re-argue their case. It determines whether the General Division made an error under the law.

[32] There is no arguable case that the General Division made a reviewable error in this case.

[33] The Claimant’s representative asked the Tribunal how to appeal to the Court.^{Footnote 27} If the Claimant is not satisfied with this decision, he may bring an application for judicial review before the Federal Court of Canada.

Conclusion

[34] This appeal has no reasonable chance of success. For that reason, I’m refusing permission to appeal.

[35] This means that the appeal will not proceed.