TD v Canada Employment Insurance Commission

TD v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2024-10-09 Neutral citation 2024 SST 1208 Reference number AD-24-616 Member Glenn Betteridge Division Appeal Division Decision Application for leave to appeal refused Related decisions SST - TD v Canada Employment Insurance Commission - 2024 SST 1209 - 2024-09-10 - General Division Subjects Appeal Division - Leave to appeal - No grounds of appeal EI - Availability for work - Capable of and available for work Decision Content Citation: TD v Canada Employment Insurance Commission, 2024 SST 1208 Social Security Tribunal of Canada Appeal Division Leave to Appeal Decision Applicant: T. D. Respondent: Canada Employment Insurance Commission Decision under appeal: General Division decision dated September 10, 2024 (GE-24-2691) Tribunal member: Glenn Betteridge Decision date: October 9, 2024 File number: AD-24-616 On this page Decision Overview Issues I am not giving the Claimant permission to appeal Conclusion Decision [1] I am not giving T. D. permission to appeal. [2] This means her appeal won’t go forward, and the General Division decision stands unchanged. Overview [3] T. D. is the Claimant. On October 1, 2020, she made a renewal claim for EI benefits. Then she injured her knee. [4] The Canada Employment Insurance Commission (Commission) paid her 15 weeks of sickness benefits. Then she asked the Commission to pay her regular benefits. The Commission paid her regular benefits. [5] Later, the Commission decided she hadn’t shown she was available for work in the weeks of January 24 to July 18, 2021. This meant she wasn’t entitled to benefits for those weeks. The Commission created an overpayment and sent her a notice of debt. The Commission upheld that decision when the Claimant asked it to reconsider. [6] The Claimant appealed to this Tribunal’s General Division. It dismissed her appeal because she hadn’t shown she was available for work. This meant she wasn’t entitled to benefits. [7] The Claimant has asked for permission to appeal the General Division decision. To get permission, the Claimant has to show her appeal has a reasonable chance of success. Unfortunately for her, she hasn’t. Issues [8] I have to decide two issues. Is there an arguable case the General Division made an important error of fact? Is there an arguable case the General Division made any other error the law lets me consider? I am not giving the Claimant permission to appeal [9] I reviewed the Claimant’s Appeal Division application.Footnote 1 I read the General Division decision. I reviewed the General Division appeal file.Footnote 2 I also listened to the recording of the General Division hearing. [10] The General Division had to decide whether the Claimant had shown she was available for work under sections 18(1)(a) and 50(8) of the Employment Insurance Act (EI Act). Under those sections, the Claimant had to prove that she was looking for a suitable job on an ongoing basis and was ready to accept a suitable job if she got an offer. [11] There isn’t an arguable case the General Division made an error when it decided the Claimant wasn’t available for work. So, for the reasons that follow, I can’t give her permission to appeal. The test for getting permission to appeal [12] To get permission, the Claimant’s appeal has to have a reasonable chance of success. Footnote 3 This means she has to show an arguable case the General Division made an error the law lets me consider.Footnote 4 The General Division used an unfair process, prejudged the case, or was biased. (This is a procedural fairness or natural justice error.) The General Division didn’t decide an issue it should have decided, or decided an issue it should not have decided. (This is a jurisdictional error.) The General Division made a legal error. The General Division based its decision on an important factual error.Footnote 5 There isn’t an arguable case the General Division made an important factual error The Claimant’s argument [13] On her appeal form, the Claimant checked the box that says the General Division made an important error of fact. Then she argued the General Division didn’t take into account four things: She lives on a small island with young children. At the time in question, government COVID mandates were in effect—this is an extenuating circumstance. She was looking for work and gave names. She asked her employer (a ferry service) for work within the company, like training. What counts as an important factual error [14] 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 6 In other words, there is some evidence that goes squarely against or doesn’t support a factual finding the General Division made to reach its decision. [15] It’s the General Division’s job to review and weigh the evidence.Footnote 7 I can’t re-weigh the evidence or substitute my view of the facts. The law also says I can presume the General Division reviewed all of the evidence—it doesn’t have to refer to every piece of evidence.Footnote 8 To overcome this presumption, a person has to show the evidence the General Division ignored calls into question the findings of fact it made.Footnote 9 The General Division’s finding that the Claimant wasn’t available for work is supported by the evidence [16] The General Division didn’t have to consider the Claimant’s young children. I listened to the hearing and reviewed the documents before the General Division. There was no evidence about the Claimant’s young children and her family obligations. That means the General Division didn’t ignore or misunderstand this. [17] And I can’t consider her family situation when I make my decision because that evidence wasn’t before the General Division.Footnote 10 [18] The General Division considered the Claimant’s evidence about living on a small island (paragraphs 34 to 37). It understood that might mean commuting to work by ferry. It weighed the Claimant’s evidence about this. It didn’t misunderstand her. Then it found the Claimant set personal restriction by not looking for work off the island, other than contacting one daycare. [19] The General Division didn’t have to consider the COVID pandemic and government mandates. The Federal Court has decided the COVID pandemic doesn’t excuse a person from looking for work and doesn’t factor into the availability test.Footnote 11 The General Division had to follow these court decisions. [20] The General Division summarized the Claimant’s evidence about her job search efforts (paragraphs 7, 20, 22, and 31). It accepted her explanation about the contradictions in the information she gave the Commission. Then it weighed the evidence—without misunderstanding or ignoring any relevant evidence. And it decided she didn’t do enough to meet the legal tests to show she was available (paragraphs 22, 23, and 32). [21] The General Division didn’t mention that the Claimant had asked her employer (the ferry service) whether she could do training or a job with modified duties. But this isn’t an important factual error. It doesn’t make me doubt the General Division’s findings on the issues it had to decide, or the outcome in the appeal. [22] The Commission’s reconsideration file notes says the Claimant said she spoke with HR at the ferry service. She called J. M. once.Footnote 12 The Claimant also testified about contacting HR once.Footnote 13 This is a single job search activity over a six-month period. The preponderance of the evidence supports the General Division’s decision that the Claimant didn’t meet section 50(8) of the EI Act or the second Faucher factor. [23] To summarize this section, the Claimant hasn’t shown the General Division made an important factual error. There isn’t an arguable case the General Division made another type of error I can consider [24] The Claimant is representing herself. So, I have considered whether the General Division might have made any other types of errors.Footnote 14 [25] Nothing from the hearing nor the General Division file suggests an arguable case that the General Division used an unfair process. The Tribunal sent the Claimant the Commission’s documents. She had an opportunity to send evidence and arguments before her hearing. [26] The General Division actively adjudicated the hearing. It explained the law and told her what she had to show to be successful. It asked questions to get evidence that was relevant to the legal issues it had to decide. And it gave her a full and fair opportunity to present her evidence and make arguments. The hearing was scheduled for one hour. It lasted 1 hour and 42 minutes. [27] I don’t see an arguable case that the General Division made a jurisdictional error. The General Division correctly identified the issue it had to decide—whether the Claimant was available for work in the weeks of January 24 to July 18, 2021 (paragraphs 8 and 9). There isn’t an arguable case the General Division decided an issue it had no power to decide. [28] I don’t see an arguable case that the General Division made a legal error. It used the correct law (paragraphs 10, 11, 12, 15, 16, 25, and 26) to decide the Claimant’s availability under sections 18(1)(a) and 50(8) of the EI Act (paragraphs 23, 24, 27, 32, and 36 to 38). And its reasons are more than adequate. [29] So, there isn’t an arguable case the General Division made any of the other errors the law lets me consider. Conclusion [30] The Claimant hasn’t shown her appeal has a reasonable chance of success. This means her appeal can’t go forward. Footnotes Footnote 1 See AD1. Footnote 2 See GD2, GD3, and GD4. Footnote 3 See section 58(2) of the Department of Employment and Social Development Act (DESD Act). Footnote 4 See O’Rourke v Canada (Attorney General), 2018 FC 498; Osaj v Canada (Attorney General), 2016 FC 115 at paragraph 12; and Ingram v Canada (Attorney General), 2017 FC 259 at paragraph 16. Footnote 5 These are the grounds of appeal in section 58(1) of the DESD Act. I refer to these ground as errors. Footnote 6 Section 58(1)(c) of the DESD Act says it is a ground of appeal where the General Division based its decision on an erroneous finding of fact it made in a perverse or capricious manner or without regard for the material before it. I have described this ground of appeal using plain language, based on the words in the Act and the cases that have interpreted the Act. Footnote 7 See Tracey v Canada (Attorney General), 2015 FC 1300 at paragraph 33. Footnote 8 See Sibbald v Canada (Attorney General), 2022 FCA 157 at paragraph 46. Footnote 9 See Lee Villeneuve v Canada (Attorney General), 2013 FC 498 at paragraph 51; and Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), 1998 CanLII 8667 (FC) at paragraphs 14 to 17. Footnote 10 See Sibbald v Canada (Attorney General), 2022 FCA 157. Footnote 11 See Nikhat v Canada (Attorney General), 2023 FC 372 at paragraph 16; and Otoman v Canada (Attorney General), 2023 FC 1766 at paragraphs 37 and 38. Footnote 12 See GD3-32. Footnote 13 Listen to the recording of the General Division hearing at 29:40. Footnote 14 See for example Griffin v Canada (Attorney General), 2016 FC 874; Karadeolian v Canada (Attorney General), 2016 FC 615; and Joseph v Canada (Attorney General), 2017 FC 391.