Employment Insurance (EI)

Decision

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

Overview

[2] B. R. is the Claimant. I will call them the Claimant because this application is about their claim for EI benefits.

[3] The Claimant and their wife had a baby on November 18, 2021. Their wife applied for the Employment Insurance parental benefit. She waived the waiting period, chose the extended benefit, and received 61 weeks of benefits. The Claimant applied for parental benefits on February 4, 2022. They asked for five weeks of standard benefits and received what they asked for.

[4] In October 2023, the Respondent, the Canada Employment Insurance Commission (Commission), reviewed their claim and determined that the Claimant should have had to serve a one-week waiting period and should have received the extended benefit. It declared an overpayment of $1275.00.

[5] The Claimant disagreed and asked the Commission to reconsider but the Commission would not change its decision. When they appealed to the General Division of the Social Security Tribunal (Tribunal), the General Division dismissed their appeal. They are now asking the Appeal Division for permission to appeal.

[6] I am refusing leave to appeal. The Claimant has not made out an arguable case that the General Division made an error that I may consider.

Issues

[7] The issues in this application are as follows:

1. a) Is there an arguable case that the General Division made an error of procedural fairness by
1. i. not accommodating the Claimant’s reading disability?
2. ii. not obtaining and providing a recording of a phone conversation that the Claimant had with a government official?
2. b) Is there an arguable case that the General Division made an error of law in how it interpreted the sharing of parental benefits?
3. c) Is there an arguable case that the General Division made an important error of fact by overlooking or misunderstanding the Claimant’s testimony related to what they were told by a government official?

I am not giving the Claimant permission to appeal

General principles

[8] For the Claimant’s application for leave to appeal to succeed, their 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.

[9] 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}

[10] 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}

Error of procedural fairness

Accommodation

[11] The Claimant argued that the General Division process was unfair because of the volume of documents, and the complex and lengthy nature of the texts. They say they have difficulty with long documents and that they may be dyslexic.

[12] So far as I can determine, this is the first time that the Claimant has raised this concern. If the Claimant believed that they were incapable of comprehending the documents in their disclosure, they ought to have raised it at the General Division so that the General Division could have considered how to accommodate them.^{Footnote 3}

[13] There is no arguable case that the General Division acted unfairly by following its usual disclosure and hearing procedures. The Claimant did not request the accommodation they now say they need, nor was it apparent that they required accommodation.

[14] The Tribunal’s records show that it emailed the Claimant the disclosure documents on February 2, 2024, so they had seven to eight weeks to review the documents before their hearing. I also note that the Claimant has demonstrated that they have the ability to effectively communicate in writing. Their own correspondence and arguments to the Tribunal are competently written and they have included their Professional Geoscientist designation with their signature.

Recording

[15] The Claimant asserts that the General Division should have provided and considered the recording of their prior conversation with a “government official.”^{Footnote 4}

[16] There is no arguable case that the General Division acted unfairly by not doing so.

[17] The General Division’s job is to decide appeals based on the material that is before it. The Claimant had argued in their Request for Review, that the “government” convinced him to take a paternity leave, but the Commission’s reconsideration file did not include or reference any recording of a specific conversation with a Commission official. In other words, the recording was not part of the General Division record. This means the General Division was not in a position to disclose any recording to the Claimant.

[18] It is up to the appellant to bring to the appeal whatever evidence they think they need.^{Footnote 5} The General Division has no legal obligation to investigate although it has the discretion to request evidence from the Commission.^{Footnote 6}

[19] In this case, the General Division had no reason to ask the Commission to look for a recording of the Claimant’s call. The Claimant did not tell the General Division that they needed the recording, or explain why they needed it. They did not ask the General Division whether it could obtain the recording. In fact, it was not until the Claimant flied their leave to appeal application, that they suggested the actual recording (assuming such a recording exists) was required for their General Division appeal.

[20] Furthermore, the Claimant did not identify the official to whom they spoke, by name, position, or office, and they did not provide that person’s contact information. Even if the Commission or Service Canada or another Government agency did record and retain the conversation—and I have no reason to believe they did—it is doubtful the Commission could have located it from the Claimant’s information.

[21] Finally, it is unlikely such a recording would have added much to what was already before the General Division. The Claimant testified about what the government official told them, and the General Division seemed to accept their evidence.^{Footnote 7}

Error of law

[22] The Claimant argued that the General Division misinterpreted the law on parental benefits, when it said that their wife’s election was binding on the Claimant.

[23] There is no arguable case that the General Division made an error of law. The law is explicit that the election of the first parent to claim parental benefits is binding on the other parent.

[24] Section 23(1.1) of the Employment Insurance Act (EI Act) says that a parental benefits claimant must elect between standard and extended benefits. Section 23(1.2) says that the election is irrevocable once any benefit is paid. A series of Federal Court of Appeal decisions have confirmed that the rule against revoking an election is absolute. This has been applied even where the claimant based their election on misleading information from the Commission.^{Footnote 8}

[25] Therefore, the law says that the first parent must elect the kind of parental benefit and that their election cannot be revoked.

[26] Section 23(1.3) states clearly that the first parent’s election (which cannot be changed) is binding on the other parent if the other parent claims parental benefits for the same child.

[27] As an aside, I think the Claimant understood that fathers are entitled to five weeks of paternity leave. That is not exactly what the law says.

[28] The law says that either parent may apply for up to 35 weeks of standard benefits. However, if both parents apply, they may receive 40 weeks between them. (This means the second parent to apply for standard benefits may get an additional five weeks if the first parent claimed the full 35 weeks.)

[29] Where the first claimant parent applies for extended parental benefits, as the Claimant’s wife did, they are entitled to 61 weeks of extended parental benefits. If both parents claim parental benefits, they may claim up to 69 weeks of extended benefits between them.^{Footnote 9}

Error of fact

[30] The Claimant argued that the General Division failed to properly consider their testimony about what a government official told them.

[31] There is no arguable case that the General Division made an error of fact by not considering the Claimant’s testimony.

[32] First, it does not look like the General Division ignored or misunderstood the Claimant’s testimony. It summarized the Claimant’s testimony that they were told they could take 5 weeks, but not told there was a difference between standard and extended benefits or that they would be bound by their wife’s choice. It understood that the Claimant believed the Commission should have given him better information when they were applying.^{Footnote 10}

[33] Second, while the General Division did not comment on whether the Claimant was told that they were entitled to the standard parental benefit, it actually accepted the Claimant’s evidence that they were led to believe they would be entitled to five weeks of benefits.

[34] But, most importantly, the General Division only makes an important error of fact when it bases its decision on a finding of fact that overlooks or misunderstands relevant evidence, or on a finding that does not rationally follow from the evidence.^{Footnote 11}

[35] Even if the General Division had found that no government official gave the Claimant incorrect or misleading information at the time that they applied for benefits, its decision would not have depended on that finding.

[36] The General Division decision was based on the law. Whatever the Commission or some government official may have told the Claimant, the Claimant could only receive the benefits authorized by law. They could not get the standard parental benefit because their wife had elected the extended benefit and had already received parental benefits. Since their wife received the extended benefit, they could only receive the extended benefit. In addition, the Claimant could not defer the one-week waiting period under the law, because their wife deferred the waiting period.^{Footnote 12}

[37] The Claimant’s appeal has no reasonable chance of success.

Conclusion

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