Employment Insurance (EI)

Decision

[1] I am refusing leave (permission) to appeal. The appeal will not proceed.

Overview

[2] V. S. is the Applicant. I will call her the Claimant because she made a claim for Employment Insurance (EI) benefits. When the Respondent, the Canada Employment Insurance Commission (Commission), learned that she had been receiving pension payments while on an EI benefit claim, it decided that they should have been allocated as earnings. This meant that the Commission overpaid the Claimant.

[3] The Claimant asked the Commission to reconsider, but it would not change its decision. She next appealed to the General Division of the Social Security Tribunal, which dismissed her claim. She is now seeking leave to appeal to the Appeal Division.

[4] I am refusing leave to appeal. The Claimant has not made out an arguable case that the General Division acted unfairly, or any other error.

Issue

[5] Is there an arguable case that the General Division acted unfairly?

[6] Is there an arguable case that the General Division made an important error of fact by ignoring or misunderstanding how the Commission’s conduct towards her affected her claim reporting.

I am not giving the Claimant permission to appeal

General principles

[7] For the Claimant’s application for leave to appeal to succeed, her reasons for appealing would have to fit within the “grounds of appeal.” The grounds of appeal identify the kinds of errors that I can consider.

[8] I may consider only the following errors:

1. a) The General Division hearing process was not fair in some way.
2. b) 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 (error of jurisdiction).
3. c) The General Division based its decision on an important error of fact.
4. d) The General Division made an error of law when making its decision.^{Footnote 1}

[9] To grant this application for leave and permit the appeal process to move forward, I must find that there is a reasonable chance of success on one or more grounds of appeal. Other court decisions have equated a reasonable chance of success to an “arguable case.”^{Footnote 2}

Procedural fairness

[10] The Application to the Appeal Division form asked the Claimant to explain why she believed the General Division made an error. The only ground of appeal that the Claimant selected in completing her application to the Appeal Division was the ground of appeal concerned with procedural fairness.

[11] However, she has not made out an arguable case that the General Division acted unfairly.

[12] Procedural fairness is concerned with the fairness of the process. It is not concerned with whether a party feels that the decision result is fair.

[13] Parties before the General Division have a right to certain procedural protections such as the right to be heard and to know the case against them, and the right to an unbiased decision- maker.

[14] The Claimant has not said that she did not have a fair chance to prepare for the hearing or that she did not know what was going on in the hearing. She has not said that the hearing did not give her a fair chance to present her case or to respond to the Commission’s case. She has not complained that the General Division member was biased or that he had already prejudged the matter.

[15] When I read the decision and review the appeal record, I do not see that the General Division did anything, or failed to do anything, that causes me to question the fairness of the process.

Important error of fact

[16] The Claimant selected the error concerned with procedural fairness, but I appreciate that the Claimant is unrepresented. She may not have understood precisely what she should argue.^{Footnote 3}

[17] In her application, the Claimant explained that the General Division had not considered her claims that the Commission gave her incorrect advice, and that it misplaced records of her pension enquiries. She said that these concerns were central to her appeal. Therefore, I have also considered whether the General Division may have made an important error of fact by overlooking or misunderstanding any of this evidence.

[18] There is no arguable case that the General Division made an important error of fact.

[19] The General Division noted the Claimant’s multiple attempts to call the Commission and that the Commission told her repeatedly that she did not have to report her pension payments.^{Footnote 4} It acknowledged and accepted that the Claimant understood, from her conversations with the Commission, that she did not need to report her pension payments.^{Footnote 5}

[20] However, the General Division did not refer to all of her evidence. The Claimant also gave evidence that she had difficulty accessing services from Service Canada, and that the Commission did not have records of her calls.^{Footnote 6} It is possible that other evidence before the General Division may have shown that her understanding was reasonable or that she acted reasonably.

[21] However, the General Division decision was not based on whether the Claimant acted reasonably. None of this evidence could have affected the General Division’s findings. As the General Division correctly noted, “what she may have been told, or may have understood, does not change the law, or prevent it from being applied.”^{Footnote 7}

[22] I can only find that the General Division has made an important error of fact if the General Division based its decision on a finding that ignores or misunderstands relevant evidence, or on a finding that does not follow rationally from the evidence.^{Footnote 8}

[23] To decide that the Claimant’s pension payments should be allocated to weeks of benefits, the General Division needed only to find that the payments were earnings, and that they were allocated according to the law.

[24] The General Division correctly stated that pension income is earnings according to the law,^{Footnote 9} except where a claimant’s pension was payable and paid before the claimant accumulated the hours of insurable employment used to establish their claim. It noted that pension earnings must be allocated to the period in which they are paid or payable.^{Footnote 10}

[25] The Claimant did not dispute that she received pension payments from the Municipal Pension Plan through her employer, or that she first began to receive pension payments on January 28, 2021. The Claimant’s benefit period began on November 29, 2020: That means she accumulated the hours she needed to establish her benefit period prior to November 29, 2020. These facts alone establish that the Claimant’s pension payments were earnings that had to be allocated to the weeks in which they were paid or payable.

[26] The Claimant may have appealed to the General Division because of her concerns with the conduct of Service Canada or the Commission, how she was misled by their advice she received, or because the Commission’s demand for repayment is a financial hardship. I sympathize, but the law does not permit exceptions for compassionate or extenuating circumstances.

[27] The Claimant’s concerns about the Commission’s conduct could not have affected any finding on which the decision relied, so they were not relevant to the General Division’s decision. The General Division is not required to consider - or to show that it considered - evidence that is not relevant to its decision.

[28] There is no arguable case that the General Division made an important error of fact. The Claimant’s appeal has no reasonable chance of success.

Conclusion

[29] I am refusing permission to appeal. This means that the appeal will not proceed.