Employment Insurance (EI)

Decision

[1] Leave (permission) to appeal is refused. The appeal won’t go forward.

Overview

[2] A. T. is the Claimant. She was late making a claim for benefits. So she asked the Canada Employment Insurance Commission to backdate her claim. It refused.

[3] She has now asked for permission to appeal a General Division decision.

[4] The General Division dismissed her appeal. It decided she didn’t show good cause for her delay claiming benefits. She didn’t try to learn about her rights under the Employment Insurance system. And there were no exceptional circumstances in her case. This meant the Commission could not backdate her claim.

[5] She argues the General Division made an important error of fact.

[6] I should give her permission to appeal if her appeal has a reasonable chance of success. Unfortunately, it doesn’t.

Issue

[7] Does the Claimant’s appeal have a reasonable chance of success?

I am not giving the Claimant permission to appeal

[8] I read the Claimant’s application to appeal.^{Footnote 1} I read the General Division decision. I reviewed the documents in the General Division file.^{Footnote 2} And I listened to the hearing recording. Then I made my decision.

[9] For the reasons that follow, I can’t give the Claimant permission to appeal.

The permission to appeal test screens out appeals that don’t have a reasonable chance of success^{Footnote 3}

[10] To get permission to appeal, the Claimant has to show an arguable ground of appeal upon which her appeal might succeed.^{Footnote 4}

[11] I can consider four grounds of appeal, which I call errors.^{Footnote 5} The General Division

• used an unfair process or wasn’t impartial (a procedural fairness error)
• didn’t use its decision-making power properly (a jurisdictional error)
• made a legal error
• made an important factual error

[12] The Claimant’s reasons for appeal set out the key issues and central arguments I have to consider.^{Footnote 6} Because the Claimant is representing herself, I will also consider whether I can give her permission to appeal for another reason.^{Footnote 7}

There isn’t an arguable case the General Division made an important factual error

[13] The Claimant checked the box that says the General Division made an important factual error. She argues the General Division got the facts wrong in paragraph 7. She didn’t testify her employer, “has started to direct new hires to EI benefit applications for the summer months.”^{Footnote 8} She feels “misrepresented and would appreciate to be able to please speak with someone more thoroughly and go through each step needed.”^{Footnote 9}

[14] The Claimant is correct. The General Division misinterpreted what she said—it got it wrong. But what she said isn’t relevant to the outcome in her case.

[15] The General Division makes an important factual error if it bases its decision on a factual finding it made by ignoring or misunderstanding relevant evidence.^{Footnote 10} Relevant means relevant to the legal test the General Division had to use to decide the appeal.

[16] In the Claimant’s appeal, the General Division had to apply the legal test for antedating (also known as backdating) a claim. The fact her employer didn’t tell her about EI benefits at her orientation wasn’t relevant to that legal test.

[17] The General Division made this point in its decision (paragraph 19):

Her employer did her a disservice in not providing orientation to new staff when she was hired. However, the law expects that applicants, will search out for information and inform themselves of their rights under the EI Act. The Appellant was clear during the hearing and from the file materials that she did not take any such action. I understand why. She is a new employee and presumed that she was not entitled to these benefits. However, just because I understand this does not make it reasonable. [Emphasis added.]

[18] It’s the General Division’s job to review and weigh the evidence.^{Footnote 11} I can’t re-weigh the evidence or substitute my view of the facts.

[19] I looked at the evidence in the documents and listened to the Claimant’s sworn testimony. The General Division’s decision is supported by the relevant evidence. There isn’t an arguable case the General Division ignored or misunderstood (or misrepresented) any relevant evidence.

[20] This means there isn’t an arguable case the General Division made an important factual error.

There is no other reason I can give the Claimant permission to appeal

[21] The Claimant is representing herself. So, I considered whether there was an arguable case the General Division made another type of error the law lets me consider.

[22] There isn’t an arguable case the General Division made a jurisdictional error. It correctly identified the issue it had to decide (paragraph 8). Then it decided only that issue.

[23] There isn’t an arguable case the General Division made a legal error. It correctly set out the legal test for antedating (paragraphs 9, and 11 to 14). Then it used that test to decide the Claimant’s appeal. The General Division’s reasons are more than adequate.^{Footnote 12} It grappled with the right questions. It considered the parties’ evidence and arguments. And its reasons add up.

[24] The Claimant hasn’t argued the General Division used an unfair process, was biased, or prejudged her case. And nothing I heard or read in General Division file suggests that.

[25] This means there isn’t an arguable case the General Division made an error the law lets me consider.

Conclusion

[26] The Claimant hasn’t shown an arguable case the General Division made an error that might change the outcome in her appeal. And I didn’t find an arguable case.

[27] This tells me her appeal doesn’t have a reasonable chance of success. So I can’t give her permission to appeal the General Division decision.