Employment Insurance (EI)

Decision

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

Overview

[2] The Applicant, G. S. (Claimant), is a fisher. In 2021, he was unable to find work fishing and was employed in a non-fishing job. When he lost this job, he applied for and received employment insurance (EI) regular benefits. He was able to qualify for regular benefits under temporary measures that were in place at the time.

[3] The Claimant worked as a fisher in 2022 and applied for EI winter fishing benefits. When those benefits ended, he applied for EI summer fishing benefits. The Respondent, the Canada Employment Insurance Commission (Commission) decided that the Claimant did not earn enough income from fishing during his qualifying period to receive EI summer fishing benefits.

[4] The Claimant appealed the Commission’s decision to the Tribunal’s General Division. The General Division dismissed the appeal. It found that the Claimant did not have any income in his qualifying period and could not be paid EI summer fishing benefits.

[5] The Claimant now wants to appeal the General Division decision, but he needs permission for his appeal to move forward. The Claimant argues that the General Division made an error of jurisdiction. He says that the temporary measures should not have prevented him from establishing a benefit period for EI summer fishing benefits.

[6] 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

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

I am not giving the Claimant permission to appeal

[8] The legal test that the Claimant needs to meet on an application for leave to appeal is a low one: Is there any arguable ground on which the appeal might succeed?^{Footnote 1}

[9] To decide this question, I focused on whether the General Division could have made one or more of the relevant errors (or grounds of appeal) listed in the Department of Employment and Social Development Act (DESD Act).^{Footnote 2}

[10] 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 3} or
4. d) made an error in law.^{Footnote 4}

[11] 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. I should also be aware of other possible grounds of appeal not precisely identified by the Claimant.^{Footnote 5}

Background

[12] The Claimant worked from June 21 to July 9, 2021, in non-fishing employment. He applied for regular EI benefits and established a benefit period effective July 11, 2021. He was able to establish a benefit period even though he had only accumulated 150 insurable hours because of temporary measures that were in place during the COVID-19 pandemic.^{Footnote 6}

[13] The Claimant then worked fishing on the following dates:

1. a) May 23 to 25, 2022
2. b) May 28, 2022
3. c) May 30 to June 6, 2022
4. d) June 6 to 11, 2022
5. e) June 12 to 17, 2022.^{Footnote 7}

[14] On June 6, 2022, the Claimant applied for EI winter fishing benefits, to start on May 29, 2022. He used the earnings from the first two periods in May 2022.^{Footnote 8}

[15] The Commission accepted the Claimant’s application. Because his benefit period for regular EI benefits did not end until July 9, 2022, the Commission started the Claimant’s EI winter fishing benefits on July 10, 2022. He was paid EI winter fishing benefits until December 17, 2022.^{Footnote 9}

[16] The Claimant applied for EI summer fishing benefits to start on December 18, 2022, using the earnings from the periods from May 30 to June 17, 2022. The Commission decided that those earnings did not fall within the Claimant’s qualifying period so he could not establish a benefit period for EI summer fishing benefits.^{Footnote 10}

The General Division decision

[17] The General Division considered the requirements that the Claimant had to meet in order to qualify for EI summer fishing benefits. The Claimant had to show that he had at least $2,500 of fishing earnings in his qualifying period.^{Footnote 11} The parties disagreed about when the qualifying period started.^{Footnote 12}

[18] The General Division looked at the EI (Fishing) Regulations, which set out when a qualifying period for EI summer fishing benefits can start.^{Footnote 13} The qualifying period starts on the later of the following dates:

1. a) Sunday of the week in which March 1st falls;
2. b) Sunday of the first week of the last benefit period; and
3. c) The Sunday of the week that is 31 weeks before the application for benefits.^{Footnote 14}

[19] The General Division found that the latest of those three dates was the Sunday of the first week of his last benefit period, which was July 10, 2022.^{Footnote 15}  

[20] The Claimant had established a benefit period for EI regular benefits which ran from July 11, 2021 to July 9, 2022. He could not establish a benefit period for EI winter fishing benefits until the previous benefit period ended.^{Footnote 16} This meant that his last benefit period before he applied for EI summer fishing benefits started on July 10, 2022.

[21] The Claimant did not have any fishing earnings in the period after July 10, 2022, so he did not qualify for EI summer fishing benefits.

No arguable case that the General Division erred

[22] The Claimant argues that the General Division erred by not considering that the temporary measures that allowed him qualify for regular benefits were only intended to be temporary. He says that these measures were meant to support people until they could get back to work. He argues that the temporary measure should have ended when he went back to work and have now cost him an entire EI fishing claim period.^{Footnote 17}

[23] There is no arguable case that the General Division erred by not considering that the temporary measure should have ended when the Claimant returned to work. The Claimant benefited from a temporary measure that gave him a credit of 300 insurable hours and required a lower number of insurable hours to qualify for benefits.

[24] The length of the Claimant’s benefit period, and the requirements to cancel a benefit period were not affected by these temporary measures. The General Division considered the requirements in the legislation for cancelling a benefit period.^{Footnote 18} It found that the Claimant was not able to cancel his benefit period in favour of starting a new one when he applied for EI winter fishing benefits.^{Footnote 19}

[25] The General Division also considered the same arguments that the Claimant is making in his application for leave to appeal. It acknowledged that the Claimant felt that the benefits he received because of the temporary measures should have ended when he returned to fishing.^{Footnote 20} It explained why the law does not allow a claimant to cancel a regular EI benefit period in order to start a claim for fishing benefits.^{Footnote 21}

[26] There is no arguable case that the General Division made an error of law or jurisdiction in its decision. It took into consideration all of the Claimant’s arguments and the relevant evidence. Its decision is consistent with the law.

[27] Aside from the Claimant’s arguments, I have also considered the other grounds of appeal. There is no arguable case that the General Division made any errors of fact or failed to follow procedural fairness.

[28] The Claimant has not identified any errors of the General Division upon which the appeal might succeed. As a result, I am refusing leave to appeal.

Conclusion

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