Employment Insurance (EI)

Decision

[1] An extension of time to apply to the Appeal Division is granted.

[2] Leave (permission) to appeal is refused. The appeal won’t proceed.

Overview

[3] K. D. is the Claimant in this case. She applied for Employment Insurance regular benefits (benefits).

[4] The Canada Employment Insurance Commission (Commission) retroactively decided that she wasn’t entitled to get benefits because she hadn’t proven her availability for work.^{Footnote 1} This resulted in an overpayment of benefits.

[5] The Claimant filed a constitutional challenge to the General Division of the Tribunal. She argued that section 18(1) and section 25(1)(a) of the Employment Insurance Act (EI Act) violated section 15 of the Canadian Charter of Rights and Freedoms (Charter).

[6] The General Division heard and dismissed the Charter appeal. It found that she hadn’t shown the two above sections in the EI Act violated section 15 of the Charter.^{Footnote 2} Specifically, she hadn’t shown that either section created or contributed to a discriminatory distinction based on age.

[7] The Claimant is now asking for permission to appeal.^{Footnote 3} She argues that the General Division made several reviewable errors in its decision.

[8] I am denying the Claimant’s request for permission to appeal because it has no reasonable chance of success.

Issues

[9] The issues in this appeal are:

1. a) Was the application to the Appeal Division late?
2. b) If so, should I extend the time for filing the application?
3. c) Is there an arguable case that the General Division made a reviewable error?

Analysis

The Claimant’s application to the Appeal Division was late

[10] There were two decisions issued by the General Division.

[11] The General Division issued an “interlocutory decision” on the Charter appeal on November 24, 2023. It dismissed the Claimant’s Charter appeal. So, the matter returned to the regular process (for non-Charter appeals) to be heard on the merits.

[12] The General Division followed by issuing a “final decision” on the merits on July 3, 2024, and allowed the Claimant’s appeal. The Commission has already appealed that particular decision to the Appeal Division.^{Footnote 4}

[13] The deadline to apply to the Appeal Division is 30 days after the day on which the General Division decision was communicated to the Claimant in writing.^{Footnote 5} In this particular case, the deadline to apply counts from the date of the General Division’s final decision.

[14] I have to decide when the General Division’s final decision was communicated to the Claimant.

[15] The Claimant wrote that the General Division’s final decision was communicated to her on July 4, 2024.^{Footnote 6}

[16] I accept that July 4, 2024, was the date that the General Division’s final decision was communicated to her.

[17] The Claimant had 30 days to file her application to the Appeal Division. The deadline to file the application was August 4, 2024.

[18] The Tribunal got the application to the appeal Division on October 17, 2024.^{Footnote 7}

[19] I find that the Claimant filed her application to the Appeal Division late.

I am extending the time for filing the application

[20] When deciding whether to grant an extension of time, I have to consider whether the Claimant has a reasonable explanation for why the application is late.^{Footnote 8}

[21] The Claimant explained that the final decision issued by the General Division was in her favour, so she didn’t feel it necessary to appeal the previous Charter decision.

[22] However, the Commission has now appealed the final decision, so she’s decided to appeal the Charter decision. She didn’t know that she had to file a separate appeal in order to challenge the Charter decision.

[23] I find that the Claimant has provided a reasonable explanation for the delay in filing her application to the Appeal Division. She appealed the Charter decision when she became aware that the Commission had filed an appeal of the final decision.

Analysis

[24] An appeal can only proceed if the Appeal Division gives permission to appeal.^{Footnote 9} I must be satisfied that the appeal has a reasonable chance of success.^{Footnote 10} This means that there must be some “arguable ground” that the appeal might succeed.^{Footnote 11}

[25] The possible grounds of appeal to the Appeal Division are that the General Division did one of the following:^{Footnote 12}

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

[26] For the Claimant’s appeal to proceed to next steps (a hearing), she has to show that there is an arguable ground that the appeal might succeed.

[27] In this case, the Claimant argues that the General Division made errors of jurisdiction, errors of law and errors of fact.^{Footnote 13} Some of her arguments are also about fairness, so I’ve considered whether there is an arguable case that the General Division failed to follow a fair process.

[28] I have summarized the Claimant’s main arguments and will review them below.

I am not giving the Claimant permission to appeal

There is no arguable case that the General Division made an error of jurisdiction or failed to follow a fair process

[29] An error of jurisdiction means that the General Division didn’t decide an issue it had to decide or decided an issue it didn’t have the authority to decide.^{Footnote 14}

[30] Procedural fairness is about the fairness of the process. It includes procedural protections including the right to an unbiased decision maker, the right of a party to be heard and to know the case against them and to be given an opportunity to respond. If the General Division didn’t follow a fair process, then I can intervene.^{Footnote 15}

[31] The Claimant argues that the General Division lacked jurisdiction because it was unable to request statistical reports for the minor age group (14–18) from the Commission. She says this information wasn’t available to the general public.^{Footnote 16}

[32] As well, the General Division was unable to request a written transcript of a telephone conversation she had with the Commission. In sum, she says that the above evidence was essential for her case.

[33] First, the General Division is an impartial decision maker and has no jurisdiction to order the Commission to provide evidence that would help the Claimant argue her case. It was the Claimant’s appeal and she bears the burden of bringing forward any evidence she wants to rely on.

[34] Second, the General Division’s decision shows that it was sensitive to the fact that the Claimant was represented by her mother who isn’t legally trained. It acknowledged that she faced some challenges in preparing for the hearing, but found that she still had a full and fair opportunity to present her case.^{Footnote 17}

[35] There is no arguable case that the General Division made an error of jurisdiction. A disagreement with the General Division’s jurisdiction amounts to a disagreement with the law, and that isn’t a reviewable error. The General Division doesn’t have the power to order the Commission to provide evidence for the Claimant’s case.

[36] There is no arguable case that the General Division failed to follow a fair process. The Claimant says it was unfair that she couldn’t get the evidence she wanted, but that doesn’t mean the process was unfair in some way. I’ve found no other indication that the General Division failed to follow a fair process.

[37] As the General Division pointed out, presenting sufficient evidence is one of the most fundamental requirements in a constitutional challenge and there is no way around it, even if it might be difficult for an unrepresented party to obtain it.^{Footnote 18}

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

[38] 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}

[39] The Claimant argues that the General Division made an error of law by relying on a Supreme Court of Canada decision called “Sharma” because it wasn’t applicable.^{Footnote 20} She explains that the Sharma decisionwas about someone who broke the law and challenged section 15 of the Charter based on race.^{Footnote 21}

[40] The Claimant submits that the Federal Court of Appeal’s (FCA) decision called “Page” is more factually similar to her own case.^{Footnote 22} However, she acknowledges that the Page decision wasn’t a Charter challenge.

[41] She says that the General Division made an error of law with the legal test.^{Footnote 23} She explains that the General Division agreed there was a distinction based on age in paragraph 51 of its decision. Later, she says it contradicted itself when it concluded that she failed at the first step of the test in paragraph 85 of its decision.

[42] Respectfully, I disagree with the Claimant.

[43] The General Division has to follow Supreme Court of Canada (SCC) decisions, so it had to follow the Sharma decision because it also dealt with a section 15 Charter Challenge.

[44] The General Division correctly relied on the Sharma case because it’s a recent SCC decision dealing with section 15 of the Charter and the applicable legal test.^{Footnote 24} While the facts in Sharma are different, the legal principles and test remain applicable.^{Footnote 25}

[45] The Claimant is correct when she says that the Page decision from the FCA is more factually similar to her own case. The Page decision involved another person who was attending school and collecting benefits.

[46] However, the Claimant in this case advanced a section 15 Charter Challenge before the General Division. The Page decision wasn’t a Charter Challenge, so it wasn’t helpful in addressing whether section 18(1) or section 25(1)(a) violated section 15 of the Charter.

[47] The General Division didn’t make an error with legal test or contradict itself in its decision. It listed and explained the steps involved in its decision: ^{Footnote 26} It stated that the Claimant had the initial burden of proving her allegations are more likely than not.^{Footnote 27}

[48] The General Division agreed that there was a distinction based on age for “secondary school students aged 14 to 18” in relation to section 18(1) of the Act.^{Footnote 28}

[49] But that doesn’t mean that the Claimant had proven her case in its entirety, the General Division simply agreed there was a distinction (or some differential treatment) for that particular group. The Claimant still had to prove that the law had a disproportionate impact on the members of that group—and this is where she failed.

[50] Put another way, showing a distinction (or some level of differential treatment) doesn’t automatically mean that either section of the EI Act created a disproportionate impact.

[51] The Claimant also argued that the law had an adverse impact on minors or young adults attending post-secondary education.^{Footnote 29} However, the General Division rejected that there was a distinction based on age for “young adults pursuing higher education.”^{Footnote 30} It relied on a Federal Court decision that found a “student” can’t be considered an analogous ground under section 15 of the Charter.^{Footnote 31}

[52] The General Division concluded that the Claimant had provided little evidence to explain the full context of students aged 14 to 18 in the labour market and their relationship to the EI system.^{Footnote 32} It found that most of the facts she relied on were either too general or not supported by evidence.^{Footnote 33} It said she hadn’t provided any evidence to explain the impact of the contested sections of the EI Act on the Claimant or members of the protected group.^{Footnote 34}

[53] The General Division correctly outlined and applied the legal test and steps involved.^{Footnote 35} It concluded that she had failed the first step of the section 15 test and not proven that either section of the EI Act created a discriminatory distinction based on age (for secondary school students aged 14 to 18).^{Footnote 36} She had failed to provide evidence to support her claim, so her appeal was dismissed.

[54] There is no arguable case that the General Division made an error of law.^{Footnote 37} It had to rely on the SCC’s decision in Sharma, the Page decision wasn’t applicable because it wasn’t a Charter challenge and it applied the correct legal test.

There is no arguable case that the General Division based its decision on an important error of fact

[55] The Claimant argues that when she cross-examined the Commission’s expert witness, it revealed that there was ambiguity, inadequacy, flaws and discrepancies in the EI Act when it comes to the treatment of minors.

[56] She reiterates that she couldn’t get statistical information to support her case. And she says a lack of evidence doesn’t mean that the law doesn’t have a disproportionate adverse impact.

[57] She submits that the denial of benefits in her case imposed financial and mental health burdens, which have disadvantaged her studies and life.

[58] The Claimant advanced a Charter challenge to the General Division and as noted above, she has the burden of building and proving her own case.

[59] The General Division correctly stated in its decision that no specific form of evidence was required, but statistics, expert evidence, judicial note, and inferences can, among other things, be used to show a disproportionate impact.^{Footnote 38} It concluded that she had provided little evidence about the situation for minors aged 14 to 18.^{Footnote 39} So, she failed to prove her case.

[60] The Claimant’s arguments under this ground amount to a disagreement with the General Division’s findings and outcome. The Appeal Division has a limited mandate and a disagreement with the decision isn’t a reviewable error.^{Footnote 40}

[61] The General Division is the fact finder and it was free to weigh the evidence before it. I can’t intervene in the General Division’s conclusion where it applies settled law to the facts.^{Footnote 41} Put another way, I can’t reweigh the evidence in order to get a different conclusion that is more favourable for the Claimant.

[62] There is no arguable case that the General Division based its decision on an important error of fact. Its key findings were consistent with the evidence.^{Footnote 42} The General Division and the Appeal Division have to follow the law, even in compassionate cases where the result might feel unfair to a party.

There are no other reasons for giving the Claimant permission to appeal

[63]  I reviewed the file record, and examined the General Division decision. I found no other reason for giving the Claimant permission to appeal.^{Footnote 43}

Conclusion

[64] An extension of time is granted.

[65] Permission to appeal is refused. The Claimant’s appeal won’t proceed. It has no reasonable chance of success.