Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The General Division did not make any reviewable errors.

Overview

[2] The Appellant, A. O. (Claimant) applied for and received employment insurance (EI) sickness benefits. The Respondent, the Canada Employment Insurance Commission (Commission), investigated and found that the Claimant had worked while receiving benefits and did not report his earnings.

[3] The Commission allocated the Claimant’s earnings to the weeks that he received benefits and there was a resulting overpayment. The Claimant appealed the Commission’s decision to the Tribunal’s General Division. The General Division dismissed the appeal.

[4] The Claimant is now appealing the General Division decision. He argues that the General Division should have adjourned the hearing when he did not attend.

[5] I am dismissing the Claimant’s appeal. The General Division did not make any reviewable errors in its decision.

Preliminary matters

[6] The Claimant did not attend the hearing in this matter. I am satisfied that he received the Notice of Hearing and was aware of the date and time of the hearing.^{Footnote 1} I proceeded in the Claimant’s absence.

Issue

[7] Did the General Division fail to provide a fair process by proceeding with the hearing without the Claimant in attendance?

Analysis

[8] I can intervene in this case only if the General Division made a relevant error. So, I have to consider whether the General Division:^{Footnote 2}

• failed to provide a fair process;
• failed to decide an issue that it should have decided, or decided an issue that it should not have decided;
• misinterpreted or misapplied the law; or
• based its decision on an important mistake about the facts of the case.

The General Division did not make any reviewable errors

The General Division decision

[9] In its decision, the General Division states that it proceeded with the decision without the Claimant in attendance.^{Footnote 3} On the day of the hearing, the Claimant did not attend at the scheduled time. The Tribunal contacted the Claimant and he said that he was scheduled to work and asked that the hearing be rescheduled to May 2023.^{Footnote 4}

[10] The General Division explains that it granted two previous requests to reschedule the hearing. It stated that the Claimant provided no explanation why he could not attend the hearing, other than his work schedule. The Claimant provided no evidence that he tried to get time off work to attend the hearing.^{Footnote 5} The General Division refused the Claimant’s request to reschedule the hearing and proceeded with him.

[11] In his application for leave to appeal, the Claimant argues that the original hearing date was rescheduled by the General Division member. He says that this caused problems because the hearing date was the last day that he was working days. He says that he tried to reach out to have the hearing set on a date he could attend but was ignored.^{Footnote 6}

[12] The Claimant says that the hearing was again scheduled for a time that he was not available. He argues that it was unfair to proceed with a decision without any arguments from him.

[13] The General Division hearing was originally scheduled for February 23, 2023.^{Footnote 7} This hearing had to be rescheduled by the member to April 4th due to a personal emergency.^{Footnote 8} On April 3rd, the Claimant left a voicemail for the Tribunal and asked to have the hearing the following day rescheduled due to his work hours.^{Footnote 9}

[14] The hearing was rescheduled for April 12, 2023.^{Footnote 10} The Claimant contacted the Tribunal on April 6, 2023, and left a voicemail stating that he could not attend the hearing on the 12th and would need the hearing to be scheduled on a Friday afternoon.^{Footnote 11}

[15] A new Notice of Hearing was sent by email on April 11th, for a hearing on the afternoon of April 14th, which was a Friday.^{Footnote 12} The Tribunal was unable to reach the Claimant for a reminder call on April 13th but left him a voicemail.^{Footnote 13}

[16] When the Claimant did not attend the hearing on April 14th, the Tribunal contacted him. He explained that he was on his way to work and could not attend the hearing. He asked for the matter to be rescheduled after May 5, 2023, when his work schedule would change.^{Footnote 14}

[17] The hearing was rescheduled twice as per the Claimant’s requests and rescheduled for a Friday afternoon, as he had requested. I granted the Claimant leave to appeal on the basis that the General Division may have failed to provide a fair process by not adjourning the hearing.

[18] At this stage, the Claimant has the onus of proving that the General Division erred. The Claimant did not file any further written submissions after leave was granted and did not attend the hearing at the scheduled time to make oral arguments.

[19] The Commission, in their written submissions, agreed that the General Division may have erred but said that the appeal should be dismissed. At the hearing, the Commission argued that the Claimant had not established that the General Division failed to provide a fair process.

[20] The Claimant did not provide any further submissions to support why he did not attend the General Division hearing, after it was rescheduled to a Friday afternoon as he requested. I find that the Claimant has not shown that the General Division erred by proceeding with the hearing in his absence.

Conclusion

[21] The General Division properly cited and applied the law when it found that the money received by the Claimant was earnings, and that these earnings were properly allocated by the Commission. It did not make any reviewable errors when it decided to proceed with the hearing without the Claimant.

[22] The appeal is dismissed.