AO v Canada Employment Insurance Commission

AO v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2024-05-08 Neutral citation 2024 SST 493 Reference number AD-24-133 Member Stephen Bergen Division Appeal Division Decision Application for leave to appeal refused Related decisions SST - AO v Canada Employment Insurance Commission - 2024 SST 494 - 2024-02-13 - General Division Subjects Appeal Division - Leave to appeal - No grounds of appeal EI - Denied for misconduct - Test for misconduct Decision Content Citation: AO v Canada Employment Insurance Commission, 2024 SST 493 Social Security Tribunal of Canada Appeal Division Leave to Appeal Decision Applicant: A. O. Respondent: Canada Employment Insurance Commission Decision under appeal: General Division decision dated February 14, 2024 (GE-24-65) Tribunal member: Stephen Bergen Decision date: May 8, 2024 File number: AD-24-133 On this page Decision Overview Issues I am not giving the Claimant permission to appeal Conclusion Decision [1] I am refusing leave (permission) to appeal. The appeal will not proceed. Overview [2] A. O. is the Applicant. I will call him the Claimant because this appeal is about his claim for Employment Insurance (EI) benefits. [3] The Claimant’s employer dismissed him because he had an accident with the employer’s shunt truck. The Claimant applied for EI benefits, but the Commission refused his claim. It found that the Claimant had been dismissed for misconduct, which meant that he was disqualified from receiving benefits. [4] The Claimant disagreed and asked the Commission to reconsider, but it would not change its decision. When he appealed to the General Division of the Social Security Tribunal (Tribunal), the General Division dismissed his appeal. Now he is asking the Appeal Division for permission to appeal. [5] I am refusing permission to appeal. The Claimant has not made out an arguable case that the General Division made an error that I can consider. Issues [6] Is there an arguable case that the General Division made an error in how it reached its decision? I am not giving the Claimant permission to appeal General principles [7] For the Claimant’s application for leave to appeal to succeed, his reasons for appealing would have to fit within the “grounds of appeal.” The grounds of appeal identify the kinds of errors that I can consider. [8] I may consider only the following errors: a) The General Division hearing process was not fair in some way. b) The General Division did not decide an issue that it should have decided. Or, it decided something it did not have the power to decide (error of jurisdiction). c) The General Division based its decision on an important error of fact. d) The General Division made an error of law when making its decision.Footnote 1 [9] To grant this application for leave and permit the appeal process to move forward, I must find that there is a reasonable chance of success on one or more grounds of appeal. Other court decisions have equated a reasonable chance of success to an “arguable case.”Footnote 2 Did the General Division make an error that I can consider. [10] In his application to the Appeal Division, the Claimant omitted to indicate his ground of appeal, or explain what error he thought the General Division made. [11] The Tribunal wrote to the Claimant on March 1, 2024, to outline the grounds of appeal and to ask the Claimant to explain why he was appealing. The Tribunal gave the Claimant until March 15 to respond. [12] The Claimant called the Tribunal on March 12 to say that he had obtained representation but would need more time. The Tribunal gave him until March 26 to provide the requested information. [13] On March 19, 2024, the Claimant’s legal representative emailed the Tribunal requesting an extension. The Tribunal extended the deadline to March 25, 2024. [14] The Claimant sent the Tribunal a copy of the advice memo he was given by his legal representative.Footnote 3 The memo was directed to the Claimant and advised him that his evidence and that of the employer was in direct conflict. The memo said that this would continue to be an issue in any new “lawsuit,” and that there was no reason to think someone else would reach different findings of fact. It suggested that the Claimant could make an argument before a Human Rights Tribunal that the employer had discriminated against him. [15] Other than the legal advice memo, the Claimant did not provide any further explanation for his appeal. The advice memo does not point to any error in the General Division decision. [16] However, I appreciate that the Claimant appears to be self-represented at this point. Even though he obtained some advice, it is possible that he did not understand precisely what he should argue. Therefore, I searched the record for other relevant evidence that the General Division may have ignored or misunderstood.Footnote 4 [17] Unfortunately for the Claimant, the record does not support an argument that the General Division may have made an important error of fact. [18] The General Division decision was based on a finding that the Claimant’s employer instructed him not to drive anything other than the forklift. This finding depended on its assessment of the credibility of the Claimant and of the Employer. [19] The General Division’s reasons adequately explain why it preferred the employer’s evidence to that of the Claimant, and its conclusions follow rationally from the evidence.Footnote 5 I have not identified any evidence (or any problem in the evidence) that the General Division ignored or misunderstood, and that would either support his credibility over that of the employer or challenge the employer’s credibility. [20] There is also no arguable case that the General Division made any other error. The Claimant has not suggested any way in which the process treated him unfairly, and there is no error of jurisdiction or law on the face of the decision. [21] The Claimant’s appeal has no reasonable chance of success. Conclusion [22] I am refusing permission to appeal. This means that the appeal will not proceed. Footnotes Footnote 1 This is a plain-language version of the grounds of appeal. The full text is in section 58(1) of the Department of Employment and Social Development Act (DESDA). Footnote 2 See Canada (Minister of Human Resources Development) v Hogervorst, 2007 FCA 41; and Ingram v Canada (Attorney General), 2017 FC 259. Footnote 3 See AD1-D. Footnote 4 I am following the lead of the Federal Court in decision such as Karadeolian v Canada (Attorney General), 2016 FC 615. Footnote 5 See para 26 to 34 of the General Division decision.