Employment Insurance (EI)

Decision

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

Overview

[2] J. S. is the Claimant in this case. He established a claim for Employment Insurance regular benefits (benefits) in July 2019.

[3] A few years later, the Canada Employment Insurance Commission (Commission) found out that the Claimant was out of Canada in 2019 and 2020 while on claim. Canada Border Services Agency (CBSA) told the Commission.^{Footnote 1}

[4] The Commission retroactively decided that the Claimant wasn’t entitled to get benefits for the two periods he was outside of Canada.^{Footnote 2} It found that he didn’t meet any of the exceptions set out in law.^{Footnote 3} This resulted in a notice of debt for the overpayment of benefits.^{Footnote 4}

[5] The General Division concluded the same.^{Footnote 5} It decided that the Claimant wasn’t entitled to get benefits for either period that he was outside of Canada. It also found that the Commission had acted fairly when it reconsidered the claim (this is also called “exercising its discretion in a judicial manner”).

[6] The Claimant is now asking for permission to appeal. ^{Footnote 6} He argues that the General Division made several reviewable errors.

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

Issues

[8] I have focused on the following issues:

1. a) Is there an arguable case that the General Division made an error of law?
2. b) Is there an arguable case that the General Division made an error of jurisdiction?
3. c) Is there an arguable case that the General Division based its decision on an important error of fact?
4. d) Is there an arguable case that the General Division failed to follow a fair process?

Analysis

[9] An appeal can proceed only if the Appeal Division gives permission to appeal.^{Footnote 7} I must be satisfied that the appeal has a reasonable chance of success.^{Footnote 8} This means that there must be some arguable ground that the appeal might succeed.^{Footnote 9}

[10] I can only consider certain types of errors. I have to focus on whether the General Division could have made one or more of the relevant errors (this is called the “grounds of appeal”).^{Footnote 10}

[11] The possible grounds of appeal to the Appeal Division are that the General Division did one of the following:

• 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.

[12] For the appeal to proceed to the next steps, the Claimant has to have a reasonable chance of success on one of the above grounds of appeal.

I am not giving the Claimant permission to appeal

[13] The Claimant argues that the General Division made several reviewable errors.^{Footnote 11} I’ve reviewed and considered all of his arguments in making this decision.

The Claimant was out of Canada for two different periods of time

[14] The Employment Insurance Act (EI Act) says that a claimant is not entitled to receive benefits for any period during which the claimant is not in Canada “except as may otherwise be prescribed.”^{Footnote 12} There are some exceptions when a Claimant is not disentitled from getting benefits while outside of Canada.^{Footnote 13}

[15] The Employment Insurance Regulations (EI Regulations) provides a list of the exceptions available. One of the exceptions is for the purpose of undergoing, at a hospital, medical or similar facility outside Canada, medical treatment that is not readily or immediately available in the claimant’s area of residence in Canada, if the hospital, clinic, or facility is accredited to provide the medical treatment by the appropriate governmental authority outside of Canada.^{Footnote 14}

[16] The Claimant doesn’t dispute that he was out of Canada. The General Division found that he was out of Canada for the following periods:^{Footnote 15}  

• Period A: October 16, 2019, to November 6, 2019—he travelled to India to pay for a training course in-person
• Period B: February 2, 2020, to March 4, 2020—he travelled to India to get medical treatment that was less expensive than in Canada

The Claimant referred to several cases to support his position, but they don’t actually mean what he claims they do  

[17] The Claimant argues that the General Division made several errors of law. In his written arguments, he referred to several cases from the Federal Court and Federal Court of Appeal that he says supports his position.

[18] I’ve reviewed all of the cases, but they don’t stand for the things that he says they do and many aren’t relevant to this case (except for the case that I’ve expressly pointed out).

[19] The Claimant argues that the Elyoumni decision allows for people to get benefits when they suffer a medical emergency abroad provided that they didn’t intentionally mislead the Commission.^{Footnote 16} But that isn’t what the case stands for.

[20] The Elyoumni decision was an out of Canada case. While on claim, that person left Canada to attend a family member’s funeral. The case looked at his availability for work while he was outside of Canada and the exceptions set out in law. It said that availability must be assessed on a case-by-case basis, and that he needed to at least demonstrate that he made arrangements to be reached while out of Canada if he was offered a job.^{Footnote 17}

[21] The legal issue in this case is the same, but that person met one of the permitted exceptions (to attend the funeral of an immediate family member).^{Footnote 18} And it doesn’t say anything about getting benefits while abroad due to a medical emergency. So, the Elyoumni decision doesn’t apply here.

[22] The Claimant argues that the Gibson decision found that a person who makes an “unintentional mistake” should be given the opportunity for reconsideration. But that isn’t what the case stands for.

[23] The Gibson decision dealt with an out of Canada issue, but that person met an exception set out in law because she was abroad for a pre-arranged job opportunity.^{Footnote 19} The Claimant in this case was out of Canada for other reasons, and the decision doesn’t talk about mistakes, so it doesn’t apply.

[24] The Claimant argues that the Kaler decision establishes that good faith errors in reporting shouldn’t result in automatic disqualification. But that isn’t what the case stands for.

[25] The Kaler decision was about antedating an application for benefits, which is a different section in law.^{Footnote 20} It found that ignorance of the law, even if coupled with good cause, is not enough to establish good cause.^{Footnote 21} This case isn’t relevant.

[26] The Claimant argues that the Picard decision found that a person’s unintentional failure to report circumstances shouldn’t automatically result in disqualification, particularly when external factors such as illness influenced their actions. But that isn’t what the case stands for.

[27] The Picard decision dealt with an out of Canada issue, but it looked at the calculation of days (whole days vs. a fraction of a complete day). It found that a person who is outside of Canada for a fraction of a complete day it is not counted as a “period” outside of Canada.^{Footnote 22}

[28] The calculation of dates wasn’t an issue in dispute. Also, the General Division cited the Picard decision in a footnote.^{Footnote 23}

[29] The Claimant argues that the Trinh decision ruled that persons unable to return to Canada due to medical incapacity shouldn’t be automatically disqualified from benefits. He also submits that this decision cautioned against overly harsh penalties for persons who act in good faith. But that isn’t what the case stands for.

[30] The Trinh decision dealt with a different legal issue (antedate) and section in law.^{Footnote 24} It wasn’t about medical incapacity or penalties. So, it’s not relevant and doesn’t apply in this case.

[31] Finally, the Claimant argues that the Peterson decision says that one has to consider whether a person’s absence was involuntary, particularly due to a sudden medical condition. He also submits that the court ruled that financial and logistical barriers must be considered when determining whether services are truly “available” to a person. But that isn’t what the case stands for.

[32] The Peterson decision was out of Canada case. It established that the person who is out of Canada has the onus of establishing (on a balance of probabilities) that they were outside of Canada for the purpose of undergoing medial treatment in a hospital or similar institution and that such treatment wasn’t available in Canada.^{Footnote 25}

[33] The General Division correctly cited the Peterson case in its decision.^{Footnote 26} It’s relevant because it means that the Claimant is the one who has to prove that he was outside of Canada for the purpose of undergoing medical treatment in a hospital or similar institution and that such treatment wasn’t available in Canada.

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

[34] An error of law happens when the General Division doesn’t apply the correct law or uses the correct law but misunderstands what it means or how to apply it.^{Footnote 27}

[35] The General Division correctly identified the relevant law and applicable legal test in its decision.^{Footnote 28} It correctly stated relevant case law in its decision.

[36] As noted above, the majority of the case law argued by the Claimant was inaccurate and not relevant.

[37] There is no arguable case that the General Division made an error of law.^{Footnote 29} The General Division has to follow the Employment Insurance Act, the Employment Insurance Regulations and relevant decisions from the Federal Court and Federal Court of Appeal. And that is exactly what it did.

[38] The General Division and Appeal Division can’t change the law in order to create new exceptions to accommodate the Claimant’s circumstances. And a disagreement with the law isn’t a reviewable error.

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

[39] 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 30}

[40] The file shows that there was a notice of debt for the overpayment of benefits for the two periods the Claimant was out of Canada.^{Footnote 31}

[41] The Claimant argues that the Tribunal should exercise its discretionary power to grant relief on compassionate grounds and because of financial hardship. He explains that he’s prepared to share his financial information to show that he has a deficit each month.

[42] The law doesn’t give the General Division or the Appeal Division any authority or discretion to grant relief for compassionate or financial reasons. The General Division has to follow the law and isn’t permitted to rewrite it, regardless of how compelling the circumstances might be.

[43] The General Division has no authority to write off the overpayment debt.^{Footnote 32} Only the Commission has the power to do that.^{Footnote 33} But the Claimant can still ask the Commission to write off the overpayment based on hardship.

[44] The only issue before the General Division was the out of Canada issue. The other issues referenced by the Claimant (availability for work and misrepresentation) were reversed by the Commission on reconsideration and not under appeal.^{Footnote 34}

[45] There is no arguable case that the General Division made an error of jurisdiction. It only decided the issues it had the power to decide (the out of Canada issue) and didn’t decide any issues that it had no power to decide.

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

[46] 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 35}

[47] The Walls decision says that an error of fact involves considering some of the following questions:^{Footnote 36}

• Does the evidence squarely contradict one of the General Division’s key findings?
• Is there no evidence that could rationally support one of the General Division’s key findings?
• Did the General Division overlook critical evidence that contradicts one of its key findings?

[48] The Claimant argues that the General Division failed to fully consider the medical evidence and that his circumstances were beyond his control leading to his extended stay out of Canada.

[49] The General Division’s decision shows that it considered his reasons for staying longer than expected in India and the medical issues he was experiencing. It didn’t ignore or overlook this evidence; it simply found that he didn’t meet any of the exceptions that would allow him to be paid benefits while out of Canada.

[50] The General Division decided that leaving Canada to go to India to pay for a training course wasn’t an exception that the law allows.^{Footnote 37} Because of that, he was disentitled to benefits for the period October 16, 2019, to November 6, 2019 (Period A).

[51] The General Division also decided that his second trip to India did not meet any of the exceptions. It found that he made a personal decision and sought medical treatment that was readily available in Canada.^{Footnote 38} He was disentitled to benefits for the period February 2, 2020, to March 4, 2020 (Period B). The Claimant agreed that the medical treatment was available in Canada, but he said it was more expensive.^{Footnote 39}

[52] The General Division concluded that the Claimant wasn’t entitled to get benefits for Period A and Period B because he didn’t meet any of the exceptions in law.^{Footnote 40}

[53] The General Division also considered whether the Commission had the authority to go back and reconsider the claim.^{Footnote 41} It said that the Commission had the authority to go back and reconsider his claim within the 72-month period because false statements were made.^{Footnote 42} And it found that the Commission had reconsidered within that period.^{Footnote 43}

[54] It explained that he didn’t declare on his claim reports that he had left Canada on two occasions in 2019 and in 2020 while he was receiving benefits.^{Footnote 44} It noted that the claim report questions were simple questions: “Were you outside of Canada between Monday and Friday during the period of this report?” but that his answers to those questions were false. The General Division concluded that the Commission had exercised its discretion in a judicial manner when it reconsidered the claim.^{Footnote 45}

[55] The Claimant appears to be re-arguing his case. He’s restating the reasons he was out of Canada and wants an exception to be made for his circumstances. But an Appeal Division hearing isn’t an opportunity for the parties to re-argue their case in order to get a different outcome. The Appeal Division has a limited mandate. So, I can’t reweigh the evidence in order to come to a different conclusion that is more favourable for the Claimant.^{Footnote 46}

[56] There is no arguable case that the General Division based its decision on an important error of fact.^{Footnote 47} It didn’t overlook his medical reasons. Its key findings are consistent with the evidence before it. I am satisfied that the General Division didn’t misinterpret or fail to consider any relevant evidence.^{Footnote 48}

There is no arguable case that the General Division failed to follow a fair process

[57] Procedural fairness is about the fairness of the process. It includes procedural protections including the right to an impartial 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.

[58] The Claimant hasn’t really pointed out how the General Division failed to follow a fair process. He checked off the box in his application to the Appeal Division, but his written arguments don’t explain why or how the General Division failed to follow a fair process.^{Footnote 49}

[59] The Claimant does refer to the Kaler decision and argues that it says delays in enforcement and investigations can “violate the principles of natural justice” particularly when they prevent someone from adequately defending their case.

[60] As I’ve noted above (in paragraph 27), that isn’t what the Kaler case stands for. That case dealt with antedating an application for benefits and doesn’t apply in this case.

[61] I’m not sure, but I think the Claimant might be arguing that the Commission’s delay in reconsidering his claim may have affected his ability to defend himself.

[62] I listened to the audio recording from the General Division hearing. There was no indication that time passage affected his ability to recall the events. The audio recording shows that the Claimant testified in great detail about what happened that led him to travelling in 2019 and 2020. The teleconference hearing lasted around 60 minutes and the General Division asked him relevant questions throughout.

[63] I’ve reviewed the file, the decision and audio recording. There is no arguable case that the General Division failed to follow a fair process in this case.^{Footnote 50}

Conclusion

[64] Permission to appeal is refused. This means that the Claimant’s appeal will not proceed. It has no reasonable chance of success.