Employment Insurance (EI)

Decision

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

Overview

[2] Y. H. is the Claimant in this case and applied for Employment Insurance (EI) regular benefits on June 21, 2022. He asked to backdate his EI claim to December 15, 2021 (this is called “antedating” your EI claim).

[3] The Canada Employment Insurance Commission (Commission) denied the Claimant’s request to antedate his EI claim to the earlier date.^{Footnote 1}

[4] The General Division came to the same conclusion.^{Footnote 2} It decided that the Claimant hadn’t shown he had good cause throughout the entire period of delay. Because of that, his EI claim could not be antedated to the earlier date.^{Footnote 3}

[5] The Claimant is now asking for permission to appeal the General Division’s decision to the Appeal Division.^{Footnote 4} He argues that the General Division didn’t follow a fair process and made an error of law, an error of jurisdiction and an important error of fact.

[6] I am denying the Claimant’s request for permission to appeal because there is no reasonable chance of success.

Issue

[7] Is there an arguable case that the General Division made a reviewable error?

Analysis

[8] An appeal can only proceed if the Appeal Division gives permission to appeal.^{Footnote 5} I must be satisfied that the appeal has a reasonable chance of success. There must be some arguable ground that the appeal might succeed.^{Footnote 6}

[9] The possible grounds of appeal to the Appeal Division are that the General Division:^{Footnote 7}

• proceeded in a way that was unfair;
• acted beyond its powers or refused to exercise those powers;
• made an error of law;
• based its decision on an important error of fact.

[10] If the Claimant’s appeal has no reasonable chance of success, then I must refuse permission to appeal.^{Footnote 8}

I am not giving the Claimant permission to appeal

[11] In the Claimant’s application to the Appeal Division, he argues that the General Division didn’t follow a fair process, made an error of law, an error of jurisdiction and an important error of fact.

[12] This is a summary of the Claimant’s main arguments to the Appeal Division:^{Footnote 9}

• He is disgusted with the unfairness and partiality of the General Division member. It was a biased decision.
• The wrong hearing date was scheduled. This caused him to appear for one hearing at the last minute even though he was told that the next hearing date was cancelled.
• He was told that a final decision would be made in 3–4 weeks after the hearing, but the decision was only issued around 4.5 months later.
• Lastly, the General Division didn’t follow the law and facts.

There is no arguable case that the General Division didn’t follow a fair process

[13] The principles of natural justice are concerned with procedural fairness. The right to a fair hearing before the Tribunal includes certain procedural protections. For example, the right to an impartial (unbiased) decision maker, the right of a party to know the case against him and to be given an opportunity to respond to it.

[14] If the General Division doesn’t follow a fair process, then I can intervene.^{Footnote 10}

[15] An allegation of bias is a serious allegation. An allegation for bias cannot rest on mere suspicion, pure conjecture, insinuations, or mere impressions.^{Footnote 11}

[16] The legal test for establishing bias is whether an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that it was more likely than not that the General Division member, whether consciously or unconsciously, would not decide the case in a fair manner.^{Footnote 12}

[17] I reviewed the file and listened to the audio recording of the General Division hearing. The teleconference hearing lasted for approximately 54 minutes and only the Claimant attended.

[18] The audio recording from the General Division hearing reveals the following:

• The General Division listened to the Claimant as he presented his case
• The General Division asked him relevant questions when necessary
• The General Division was respectful throughout the hearing
• The General Division permitted the Claimant to submit documents after the hearing to support his case (post hearing documents)^{Footnote 13}

[19] It is not arguable that the General Division was biased. An informed person, viewing the matter reasonably and practically and having thought the matter through would not conclude that it was more likely than not that the General Division was biased.

[20] The Claimant’s allegation appears to amount to a disagreement with the outcome. However, a disagreement with the outcome is insufficient to amount to bias and not a reviewable error.

[21] The Claimant also argues that the General Division scheduled the wrong hearing date and it caused him to appear at the hearing at the last minute. He says that he was told at the previous hearing date [on August 23, 2023] that the next hearing date [on August 30, 2023] was cancelled.

[22] The Claimant appears to be referring to another General Division file (tribunal file number GE-22-4195) which was scheduled to be heard by the General Division on August 30, 2023, with the same Tribunal Member.^{Footnote 14} The legal issue in that file involved a disentitlement to EI benefits due to alleged misconduct.

[23] I reviewed his application to the Appeal Division and the Claimant specifically wrote that he is appealing the decisions for the following tribunal files: GE-22-4193 (antedate) and GE-22-4196 (hours).^{Footnote 15}

[24] This means that the only appeals before the Appeal Division are GE-22-4193 and GE-22-4196 (and not GE-22-4195).

[25] The record for this file shows that the Claimant got the notice of hearing in advance of the hearing scheduled on August 23, 2023.^{Footnote 16} He confirmed his attendance in writing and attended the hearing.^{Footnote 17}

[26] So, it is not arguable that the General Division didn’t follow a fair process. The Claimant got the notice of hearing in advance and there was no confusion about when the hearing would be held for this particular file.

[27] The Claimant also argues that he expected the General Division decision within 3–4 weeks after the hearing. The Claimant’s assumption was correct because the General Division told him that it expected to issue its decision within 3–4 weeks after September 6, 2023.^{Footnote 18}

[28] The General Division issued its decision on January 13, 2024. There is no explanation in its decision or in the record on why it did not issue its decision in 3–4 weeks.

[29] It is not arguable that the General Division failed to follow a fair process when it issued its decision later than it said it would. In some cases, the General Division may need more time to render its decision depending on the complexity of the cases, volume of cases or multiple files for one person. 

[30] To sum up, there is no arguable case that the General Division was biased or didn’t follow a fair process. The Claimant attended the General Division hearing on August 23, 2023, and there was no confusion about when that hearing would take place. The issuance of its decision was in fact delayed, but it’s possible that the General Division needed more time to render a decision, particularly since it had three files involving the Claimant.   

There is no arguable case that the General Division made an error of law or error of jurisdiction

[31] An error of law can happen when the General Division doesn’t apply the correct law or when it uses the correct law but misunderstands what it means or how to apply it.^{Footnote 19}

[32] An error of jurisdiction means that the General Division didn’t decide an issue it had to decide or decided an issue it did not have the authority to decide.^{Footnote 20}

[33] The Tribunal’s authority to review decisions comes from the Employment Insurance Act (EI Act). The EI Act says that the Tribunal can only review reconsideration decisions made by the Commission that are appealed to the Tribunal.^{Footnote 21}

[34] In this case, the Claimant appealed the Commission’s reconsideration decision dated November 29, 2022, that denied his request to antedate his EI claim to an earlier date.^{Footnote 22}

[35] The EI Act says in order to have your EI claim antedated, you have to prove that you had good cause for the entire period of delay and that you qualified for EI benefits on the earlier date.^{Footnote 23}

[36] Claimants can show good cause by proving that they have done what a reasonable and prudent person would have done in the same circumstances throughout the entire period of delay.^{Footnote 24}

[37] Unless there are exceptional circumstances, a reasonable person is expected to take reasonably prompt steps to understand their entitlement to benefits and their obligations under the EI Act.^{Footnote 25}

[38] The General Division set out the correct legal test to be applied and relevant case law in its decision.^{Footnote 26}

[39] The General Division had to decide whether the Claimant had good cause for the delay in applying for EI benefits for the entire period of delay.^{Footnote 27} It determined that the period of delay ran from December 15, 2021, to June 21, 2022.^{Footnote 28}

[40] The General Division decided that the Claimant did not have good cause for the entire period of delay.^{Footnote 29} It considered the reasons and evidence he provided, but ultimately found that he did not take reasonably prompt steps to understand his entitlement to benefits and obligations under the law.^{Footnote 30} It also found there were no exceptional circumstances.

[41] There is no arguable case that the General Division made an error of law or error of jurisdiction. It stated and applied the correct law and case law. It only decided the issues it had the authority to decide (antedate) and did not decide any issues it had no authority to decide.

There is no arguable case that the General Division made an important error of fact

[42] An error of fact happens when the General Division has “based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.”^{Footnote 31}

[43] Not all errors of fact will allow me to intervene. An error of fact needs to be important enough that the General Division relied on it to make a finding that impacted the outcome of the decision.

[44] I can intervene if the General Division based its decision on an important mistake about the facts of the case.

[45] As noted above, the General Division found that the Claimant had not shown that he had good cause to antedate his claim during the entire period of delay.

[46] The General Division was entitled to make findings based on the evidence. Its key findings were consistent with the evidence in the record. 

[47] There is no arguable case that the General Division made an important error of fact. I cannot reweigh the evidence in order to come to a conclusion more favourable for the Claimant.^{Footnote 32} An appeal to the Appeal Division is not a new hearing.

Conclusion

[48] I reviewed the file, examined the decision under appeal and did not find any key evidence that the General Division might have ignored or misinterpreted.^{Footnote 33}

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