Employment Insurance (EI)

Decision

[1] Leave (permission) to appeal the General Division decisions is denied.

[2] This means B. G.’s appeal won’t go forward.^{Footnote 1} And the General Division decisions stand unchanged.

Overview

[3] B. G. is the Claimant. He’s asking for permission to appeal two General Division decisions. I have joined the two applications to appeal. I can give him permission to appeal if his appeal has a reasonable chance of success. In other words, of getting his claim antedated.

[4] At the General Division, the Claimant made a motion for three remedies. The General Division dismissed his motion. It decided it could not allow his appeal simply because the appeal had taken a long time. It refused to take documents out of the appeal file. And it decided it wasn’t biased. (I will call this the motion decision.)

[5] The Claimant argues the General Division’s reasons about bias contain errors. And he argues the General Division made two legal errors in the motion decision.

[6] The law says a person has to file a claim for EI benefits within three weeks of the week for which benefits are claimed.^{Footnote 2} Exceptionally, the Commission can antedate (in other words, backdate) a person’s initial claim if they can show good cause throughout the delay.^{Footnote 3}

[7] The General Division decided the Claimant didn’t show good cause throughout the delay—from April 26, 2011 to February 27, 2020. So it could not antedate his claim, and dismissed his appeal. (I will call this the antedate decision.)

[8] The Claimant argues the General Division made all four types of errors in its antedate decision.

[9] Unfortunately for the Claimant, he doesn’t have a reasonable chance of winning his appeal. So his appeal can’t go forward.

Preliminary matter—I have joined the Claimant’s two applications to appeal

[10] The Claimant is asking for permission to appeal two General Division decisions—the motion decision and the antedate decision. The law gives me the authority to join appeals and deal with them together.^{Footnote 4}

[11] I have joined the Claimant’s two applications to appeal.

[12] The applications raise a common question.^{Footnote 5} When there is a motion decision and a decision on the merits of the underlying appeal, the common question is the legal test for getting leave (permission) to appeal.^{Footnote 6} I will give him permission to appeal if there’s an arguable case the General Division made an error (in either decision) that gives him a reasonable chance of success. Success in this case means getting his appeal antedated.

[13] Joining the applications isn’t unfair to the parties.^{Footnote 7}

[14] I gave the Claimant an opportunity to tell the Tribunal he wanted to appeal both decisions. And I gave him a full and fair opportunity to send written arguments about the errors he says the General Division made in each decision.

[15] At the permission to appeal stage, the Commission doesn’t get to make arguments. If the Claimant’s appeal goes forward, both parties get to make arguments about all grounds of appeal. And respond to the other party’s arguments.

Issues

[16] I have to decide whether the Claimant’s appeal has a reasonable chance of success.

I’m not giving the Claimant permission to appeal

[17] This is the second time the Appeal Division is considering the Claimant’s appeal of the General Division’s refusal to antedate his claim. Before making my decision, I read the Claimant’s application to appeal.^{Footnote 8} I read the General Division decisions—motion and antedate. And I reviewed the documents in the two General Division and one Appeal Division files.^{Footnote 9}

[18] 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 10}

[19] I can give the Claimant permission to appeal if there’s an arguable case the General Division made an error upon which the appeal might succeed.^{Footnote 11}

[20] The law lets me consider four types of errors.^{Footnote 12} The General Division used an unfair procedure, or made a jurisdictional error, a legal error, or an important factual error.

[21] Because the Claimant is representing himself, I will also look beyond his arguments when I apply the permission to appeal test.^{Footnote 13}

The motion decision

[22] I considered the Claimant’s three sets of reasons for appeal when I analyzed the General Division’s motion decision.^{Footnote 14}

No arguable case the General Division was biased

[23] The General Division had to use a fair process to decide the Claimant’s appeal.^{Footnote 15} This is called procedural fairness or natural justice. The General Division had to

• let the Claimant know the Commission’s case
• give the Claimant a full and fair opportunity to respond to that case with evidence and arguments
• be impartial (in other words, not prejudiced or biased)^{Footnote 16}

[24] A Tribunal member is presumed to be impartial. The person who alleges bias has to show a reasonably informed person would think, in the circumstances, the decision-maker would not decide fairly.^{Footnote 17} This is difficult to show.^{Footnote 18}

[25] The Claimant says he thinks there are errors in the General Division’s ruling on lack of bias.^{Footnote 19} He writes he feels the entire Tribunal process is biased and the Tribunal Members are biased as a result of the design of the appeal process.^{Footnote 20} His main argument against the General Division seems to be the Commission didn’t rebut each of his submissions. He alleges the Tribunal does that for the Commission, which shows a bias. He also argues the General Division unfairly relied on established law.^{Footnote 21}

[26] I can’t accept the Claimant’s arguments for three reasons.

[27] First, the Appeal Division process isn’t the Claimant’s chance to reargue his motion. That’s essentially what he’s doing when I compare his arguments in the motion and his arguments in this application to appeal. But at this stage in the Tribunal’s appeal process, he has to show an arguable case the General Division made an error.

[28] Second, there isn’t an arguable case the General Division made an error when it rejected his bias argument (paragraphs 29 to 37). The Claimant’s evidence amounted to allegations and theories about the Tribunal, its members’ motivations, and the law. The General Division set out the correct test for bias (paragraphs 30 to 32). Then used that test (paragraphs 33 to 37).

[29] Third, the Claimant’s arguments misunderstand the relevant law and the General Division’s role. The General Division

• hears appeals from Commission decisions de novo—in other words, from scratch by applying the EI Act to the evidence
• has to follow the EI Act, it can’t change it
• has to follow decisions from the Federal Court and Federal Court of Appeal (together, the Federal Courts), which bind the Tribunal in like cases
• has to follow the settled test for antedating under EI Act section 10(4)—for four decades the Federal Courts have said claimants have a demanding and strict obligation to apply for benefits in a timely way, and have confirmed antedating is exceptional^{Footnote 22}

[30] So the General Division’s role in an antedate appeal is to apply the settled law to its assessment of the relevant facts.

[31] To summarize this section, the Claimant hasn’t shown an arguable case the General Division made an error in the bias reasons of its motion decision. And this means he hasn’t shown an arguable case a reasonable person would think the General Division could not decide his antedate appeal fairly.

An arguable case the General Division made legal errors, but none give the appeal a reasonable chance of success

The Claimant’s first argument—the Canadian Bill of Rights isn’t part of the constitution

[32] The Claimant says the General Division made a legal error when it said there was a separate procedural path for constitutional challenges, including challenges under the Canadian Bill of Rights (Bill of Rights).^{Footnote 23}

[33] There’s an arguable case the General Division made an error when it lumped together the Charter and the Bill of Rights (paragraphs 43 and 44). The Bill of Rights isn’t part of Canada’s constitution. And the Tribunal’s notice of constitutional question requirement only applies to constitutional questions.^{Footnote 24}

[34] But this error doesn’t give the Claimant a reasonable chance of winning his appeal.

[35] The paragraphs the Claimant refers to aren’t an essential part of the General Division’s reasons for decision.^{Footnote 25} The General Division only included this information to clarify the Tribunal’s constitutional challenge process (paragraph 18). This error didn’t mislead or prejudice the Claimant. In his appeal of the Commission’s antedate decision, he still made arguments based on the Bill of Rights.^{Footnote 26}

The Claimant’s second argument—the General Division ignored his Bill of Rights section 2(e) argument

[36] The General Division makes a legal error when it doesn’t consider an argument it should have considered.

[37] Section 2(e) of the Bill of Rights guarantees the right to a fair hearing in accordance with the principles of fundamental justice. In his motion, the Claimant relied on section 2(e). He argued the General Division should summarily rule in his favour and grant the antedate because of delay at the Tribunal.^{Footnote 27} He says the Commission made errors in 2020 when he filed his appeals. This caused delay, an unfair appeal process, and breached his right to a fair hearing.

[38] There’s an arguable case the General Division made a legal error when it didn’t consider the Claimant’s Bill of Rights argument.

[39] The General Division denied the Claimant’s request to antedate his claim because of delay. It found it didn’t have the power to allow his appeal or grant the antedate for that reason (paragraph 20).

[40] But the General Division didn’t refer to section 2(e) of the Bill of Rights or the Claimant’s argument based on that section. And it didn’t refer to court decisions about that section. So it seems the General Division didn’t grapple with a key issue and central argument the Claimant raised.

[41] But this arguable case of a legal error doesn’t give the Claimant a reasonable chance of winning his appeal. That’s because the General Division arrived at the correct conclusion. I’ll explain why the General Division had no power to grant the Claimant benefits as a remedy under section 2(e) of the Bill of Rights. In other words, the law doesn’t support his argument.

[42] I didn’t find a court or tribunal decision analyzing delay as a breach of section 2(e) of the Bill of Rights.^{Footnote 28} A number of court decisions set out the general scope of that section and remedies for a breach.^{Footnote 29} Two principles are relevant for this application.

• Section 2(e) can be used to challenge a law, or section of a law.
• When a law breaches section 2(e), the court or tribunal can declare the law inoperative and quash a decision or action taken under the inoperative law.

[43] The Claimant didn’t argue a section of a law breached his section 2(e) rights. Even if he had done this successfully, the General Division only had the authority to declare a section of a law inoperative, and quash a decision made under that section. It didn’t have the authority to antedate his claim without considering and applying the EI Act section 10(4) antedate test.

An inordinate delay can breach procedural fairness

[44] I have also considered the common law that says an inordinate delay can breach the duty of procedural fairness a tribunal owes to a party. The Supreme Court of Canada has said^{Footnote 30}

• an administrative decision-maker is the “master” of its own procedures
• an administrative decision-maker owes a party a duty of procedural fairness—in other words, the fairness of the process used to make a decision
• an inordinate delay in a tribunal proceeding might amount to an abuse of process that breaches the duty of procedural fairness
• remedies for abuse of process can compensate a party for the prejudice caused by an inordinate delay, serve as an incentive for the decision-maker to address systemic delay, or express the tribunal’s concern relating to delays
• a stay of proceedings is the ultimate remedy
• where a stay of proceedings isn’t appropriate, other remedies can compensate a party for the abuse of process
• for example, a disciplinary tribunal might reduce a penalty or make an award of costs
• other tribunals may be able to grant other remedies set out in their enabling laws[emphasis added]

[45] In Norman, the Federal Court of Appeal considered a three-year delay caused by the EI Commission.^{Footnote 31} It considered whether the delay to get to a first level EI appeal hearing amounted to a breach of natural justice. The claimant argued the passage of time caused him psychological and social harm. And he argued he should be granted benefits because of that.

[46] But the Court didn’t consider whether granting benefits was the proper remedy. Because it decided there was “no evidence which would justify a remedy under the principles of administrative law.”^{Footnote 32} The Court referred to the Supreme Court’s Blencoe decision, which was about delay in a human rights complaint. And expressed “strong reservations” about applying the principles developed in the human rights context to economic rights under the EI Act.

[47] The Norman decision is highly relevant to the argument the Claimant made in his motion. The Court’s reasons show the remedy he asked for isn’t supported by the common law. The General Division’s enabling laws don’t give it the power to grant benefits (a substantive remedy) for a breach of procedural fairness.

Summary—the Claimant’s delay argument can’t succeed

[48] The Claimant made an allegation of procedural unfairness based on delay. His case was weak. It didn’t detail the alleged delay or refer to a single proceeding. And his argument has no legal support.

[49] I reviewed decisions under section 2(e) of the Bill of Rights and the common law about inordinate delay as a breach of procedural fairness. The law doesn’t support the Claimant’s position there was a delay at the General Division that breached procedural fairness. And it doesn’t support the remedy he asked for.

[50] Granting benefits is a substantive not a procedural remedy. The courts have said the General Division has to follow the eligibility requirements under the EI Act, it can’t change them.^{Footnote 33} This includes the test for antedating under section 10(4).

[51] So even if the General Division made a legal error when it didn’t grapple with the Claimant’s delay argument, this doesn’t give his appeal a reasonable chance of success.

The antedate decision

[52] The Claimant says he checked all four error boxes because his reasons for appeal are complex and overlap the categories.^{Footnote 34}

[53] It’s true that a General Division error might count as more than one type of error. But that doesn’t lower the Claimant’s burden to show an arguable case of an error and a reasonable chance of success. And when a claimant doesn’t explain or give details about an alleged error, that ground of appeal has no reasonable chance of success.^{Footnote 35}

I don’t have to analyze in detail the Claimant’s jurisdictional error and procedural unfairness arguments

[54] The Claimant argues the General Division made an error of jurisdiction in part because it relied on established law.^{Footnote 36} Jurisdiction means the legal authority to decide an issue. Relying on established law isn’t a jurisdictional error. But it might count as a legal error if the General Division misunderstood the established law. So I will consider his “established law” argument when I look at possible legal errors.

[55] The Claimant hasn’t alleged, explained, or described any other jurisdictional error.

[56] The Claimant argues he checked procedural unfairness because he feels the entire Tribunal process is biased. The members are biased because of the way the process to appeal a Commission decision works.

[57] I considered his bias arguments in my analysis of the motion decision, above. I decided there isn’t an arguable case the General Division made a legal error when it rejected the same bias arguments he repeats in this application.

[58] The Claimant also argues its procedurally unfair for Tribunal members to rely on established law. I will deal with this argument as a legal error because its not procedurally unfair for the General or Appeal Division to follow binding decisions from the Federal Courts.

[59] This leaves two types of errors. I will consider whether the General Division made a legal error in its antedate decision. Then I will consider whether it made an important factual error in that decision.

No arguable case the General Division made a legal error

[60] The General Division makes a legal error when it misinterprets or doesn’t follow a legal test from the EI Act. Or when it doesn’t follow a binding decision from the Federal Courts.

[61] The Claimant argues the General Division made an error when it reached its decision using established caselaw about antedating.^{Footnote 37} He says the idea of settled law is problematic. No law should ever be fully settled, since times change and concepts of fairness and justice evolve.

[62] I can’t accept this argument. It goes against a legal principle called stare decisis. That principle means Federal Courts’ decisions about an issue under the EI Act bind the Tribunal when it is deciding the same issue.^{Footnote 38} In other words, the Tribunal has to follow a decision from the Federal Courts unless the Tribunal can distinguish the case it’s deciding from the Federal Court decision.

[63] The General Division had to follow the test for antedating, which is well established. For four decades the Federal Courts have said claimants have a demanding and strict obligation to apply for benefits in a timely way.^{Footnote 39} And have confirmed antedating is exceptional, so the Tribunal must apply it cautiously.

[64] The General Division set out then used the correct legal test for antedating from section 10(4) of the EI Act, as interpreted by the Federal Courts (paragraphs 22 to 27, 71 to 76, 80, 105, 112, and 120). There’s no arguable case the General Division made a legal error when it used this legal test to decide the Claimant’s appeal.

[65] The Claimant argues the General Division misinterpreted the antedate test in the context of special benefits.^{Footnote 40} He says he applied for the sickness benefit, one type of special benefit. He relies on the De Jesus court decision and one Tribunal decision.^{Footnote 41}

[66] I can’t accept the Claimant’s argument. The General Division considered and followed the De Jesus decision. It adopted a slightly more lenient approach to the good cause test because the Claimant applied for sickness benefits (paragraphs 96 to 103). So there’s no arguable case the General Division made a legal error by ignoring the De Jesus decision.

[67] The Claimant argues the General Division made a legal error when it focused too much on the length of his delay.^{Footnote 42} He says this goes against the McBride decision and decisions it draws on.^{Footnote 43}

[68] I can’t accept that argument. In McBride, the Federal Court of Appeal cautioned the length of the delay should not be used as a stand-alone factor when applying the antedate test.

[69] But under section 10(4), a person has to show good cause “throughout the period” of delay. The General Division was careful to link the length of the Claimant’s delay to whether his arguments and evidence show he had good cause throughout the delay (paragraphs 25, 43 to 44, 50 to 52, 61, 101, 102, and 106 to 109). So there’s no arguable case the General Division made a legal error by focusing too much on the length of the delay—as a stand-alone factor.

[70] The Claimant argues the General Division made a legal error by ignoring his foreseeability argument and the Mustapha v Culligan of Canada Ltd decision.^{Footnote 44}

[71] I can’t accept that argument. The General Division referred to the Claimant’s foreseeability argument in footnote 101. And there isn’t an arguable case it made an error by not considering the Mustapha decision, or his foreseeability argument in greater detail. The General Division didn’t have to address every argument or decision the Claimant raised.^{Footnote 45} It reasonably and strategically dealt with a number of the Claimant’s unfounded arguments at once (paragraphs 119 and 120).^{Footnote 46} Most importantly, foreseeability isn’t part of the antedate test under section 10(4) of the EI Act as interpreted by the Federal Courts.

[72] The Claimant argues the General Division misinterpreted the “acted as a reasonable and prudent person” part of the legal test for antedate.^{Footnote 47} He seems to be arguing the General Division didn’t consider that depression or other mental health disabilities can impact a person’s decision-making. And what that person thinks might be prudent.

[73] I can’t accept this argument. The Federal Court of Appeal has said the antedate test is in part subjective, based on an appreciation of the fact of each case, since there isn’t an easily applicable objective principle.^{Footnote 48} The General Division understood this. It considered whether the Claimant acted like a reasonable person in his circumstances, and whether his mental health conditions were an exceptional circumstance (footnote 39 and paragraphs 41 to 44, 104, 106 to 109, and 111 to 113). So there’s no arguable case it ignored the subjective (claimant-centric) part of the antedate test.

[74] Finally, the Claimant argues, “… by not factoring in my limitations due to my disability, the Member discriminated against me” under the Canadian Human Rights Act. I can’t accept that argument. It ignores the General Division’s reasons and misunderstands discrimination law. As I outline in the previous paragraph, the General Division assessed the Claimant’s case based on his individual capacities and limitations. It didn’t assess his conduct against a notional reasonable person. And it didn’t attribute to him, or rely on, presumptions and stereotypes about mental health conditions and people who live with those conditions.

[75] To summarize this section, the Claimant hasn’t shown an arguable case the General Division made a legal error. And I analyzed the General Division decision in light of the relevant law. But didn’t find an arguable case the General Division made a legal error.

No arguable case the General Division made an important factual error

[76] The General Division makes an important factual error when it reaches its decision by ignoring or misunderstanding relevant evidence.^{Footnote 49} Relevant means evidence called for by the legal test. When the General Division makes this error, its decision isn’t supported by the evidence.

[77] The Claimant says the General Division’s errors of fact relate to hypotheticals and also how his disabilities impacted his behaviour and reason for delay.^{Footnote 50} He argues a key issue in his appeal is the impact and treatment of his mental health conditions on his delay, particularly in 2011 and 2012.^{Footnote 51} And he argues the General Division decision treats his mental health disability as if it were a physical disability, or period of physical illness or incapacity.^{Footnote 52}

[78] But the Claimant doesn’t point to specific, relevant evidence the General Division ignored or misunderstood to reach its factual findings. As I stated above in my legal error analysis, the General Division assessed the Claimant’s case based on his capacities and limitations, and considered his subjective beliefs (paragraphs 7, 28, 30, 38, 44, and 104 to 113).

[79] The General Division considered and weighed his evidence in light of the law, his arguments, and the Commission’s evidence and arguments. The General Division didn’t have to accept his evidence or subjective assessment of his situation. And I can’t reweigh the evidence to come to different factual findings.

[80] I reviewed the evidence in the General Division files and compared that to the evidence the General Division used to reach its decision. I didn’t find relevant evidence the General Division ignored or misunderstood. This tells me the General Division’s decision is supported by the relevant evidence. So there isn’t an arguable case the General Division made an important factual error.

Conclusion

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

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