Employment Insurance (EI)

Decision

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

Overview

[2] The Applicant (Claimant) stopped working on August 22, 2022, due to an illness. She applied for EI sickness benefits on November 23, 2022.

[3] The Claimant’s benefit period was established and commenced on November 20, 2022. The Claimant argued that she qualified to establish her benefit period effective December 18, 2022, so she should be entitled to 26 weeks of sickness benefits under the new legislation.

[4] Upon reconsideration, the Respondent (Commission) maintained that the Claimant qualified for and established her benefit period effective November 20, 2022. So, she was only entitled to 15 weeks of sickness benefits. The Claimant disagreed and appealed to the General Division.

[5] The General Division found that the Claimant was covered by the old law. She was therefore entitled to a maximum of 15 weeks of EI sickness benefits. It dismissed the Claimant’s appeal.

[6] The Claimant now seeks leave to appeal of the General Division’s decision to the Appeal Division. The Claimant submits that the General Division did not decide an issue that it should have decided.

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

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

Issue

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

Analysis

[10] 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. 1. The General Division hearing process was not fair in some way.
2. 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. 3. The General Division based its decision on an important error of fact.
4. 4. The General Division made an error of law when making its decision.

[11] An application for leave to appeal is a preliminary step to a hearing on the merits. The Claimant must meet this initial hurdle, but it is lower than the one of the hearing of the appeal on the merits. At the leave to appeal stage, the Claimant does not have to prove her case but must establish that the appeal has a reasonable chance of success based on a reviewable error. 

[12] In other words, 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 in appeal, in order to grant leave.

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

[13] The Claimant submits that the General Division did not decide an issue that it should have decided.

[14] The Claimant submits that her EI officer misinformed her and caused her injury, as it was reliance on this misinformation that disqualified her from receiving an additional 11 weeks of sickness benefits totaling $7,018.00 before tax. The Claimant submits that there is nothing anywhere that warns claimants that the EI officers act with impunity and cannot be held accountable for any wrongful advice they give to claimants.

[15] The Claimant wants the General Division decision set aside on the basis that the Commission’s actions were possibly an unlawful abuse of power.

[16] The question the General Division had to decide was this: was the Claimant entitled under the Employment Insurance Act (EI Act) to receive 26 weeks of sickness benefits? Unfortunately, for the Claimant, the answer is no.

[17] The Claimant stopped working on August 22, 2022, due to an illness. She applied for EI sickness benefits on November 23, 2022. The Claimant’s benefit period was established and commenced on November 20, 2022. After serving a one-week unpaid waiting period, the Claimant was paid a total of 15 weeks of sickness benefits from November 27, 2022, to March 11, 2023.

[18] To be entitled to 26 weeks of sickness benefits, a benefit period must begin on or after December 18, 2022, the date of the change to the EI Act. In the present case, the Claimant’s benefit period started prior to December 18, 2022. She was only entitled to 15 weeks.

[19] The Federal Court of Appeal in Romero and Tjong has long established that neither the General Division, nor the Appeal Division, has the authority to transform the issue before it into an issue relating to the Commission’s liability and assessment of damages a claimant might have suffered because of an alleged error on the part of the Commission. This does not mean the Claimant is not right. It simply means that this is an issue that must be debated by the parties in another forum.^{Footnote 1}

[20] After reviewing the appeal file, the General Division decision, and the Claimant’s arguments, I find that the General Division considered the evidence before it and properly applied the law in deciding that the Claimant was entitled to 15 weeks of sickness benefits. It is for the Courts to decide whether the Commission is liable for the damages the Claimant alleges she has suffered.

[21] I have no choice but to find that the appeal has no reasonable chance of success.

Conclusion

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