SG v Canada Employment Insurance Commission

SG v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2020-02-14 Neutral citation 2020 SST 105 Reference number AD-20-89 Member Pierre Lafontaine Division Appeal Division Decision Application for leave to appeal refused Related decisions SST - S. G. v. Canada Employment Insurance Commission - 2019 SST 1563 - 2019-12-20 - General Division Decision Content On this page Decision Overview Issue Analysis Conclusion Decision and Reasons Decision [1] The Tribunal refuses leave to appeal to the Appeal Division. Overview [2] The Applicant, S. G. (Claimant), made a claim for regular benefits. The Commission refused her claim on the grounds that she would only accept part-time work and therefore she had not proven her availability for full-time work. The Claimant asked for reconsideration of the claim and the Commission again refused on the same grounds. [3] The General Division found that the Claimant did not prove that he was capable of and available for employment and unable to obtain suitable employment. Therefore the Claimant was disentitled from benefits per section 18(1)(a) of the Employment Insurance Act (EI Act). [4] The Claimant now seeks leave to appeal of the General Division’s decision to the Appeal Division. [5] In support of her application for permission to appeal, the Claimant submits that she was not properly informed by the Commission of her obligations under the EI Act. She puts forward that nowhere in the EI Act does it indicate that she has to look for full-time employment. [6] The Tribunal must decide whether there is some reviewable error of the General Division upon which the appeal might succeed. [7] The Tribunal refuses leave to appeal because the Claimant’s appeal has no reasonable chance of success. Issue [8] Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed? Analysis [9] Section 58(1) of the Department of Employment and Social Development Act (DESD Act) specifies the only grounds of appeal of a General Division decision. These reviewable errors are that: a) the General Division: failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or c) the General Division based its decision on an erroneous finding of fact that it had made in a perverse or capricious manner or without regard for the material before it. [10] An application for leave to appeal is a preliminary step to a hearing on the merits. The Claimant must meet this initial hurdle, but it is lower than the one of the hearing of the appeal on the merits. At the leave to appeal stage, the Claimant does not have to prove her case but must establish that the appeal has a reasonable chance of success based on a reviewable error. [11] In other words, the Tribunal needs to be satisfied that the reasons for appeal fall within any of the above-mentioned grounds of appeal and that at least one of the reasons has a reasonable chance of success in appeal, in order to grant leave. Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed? [12] In support of her application for permission to appeal, the Claimant submits that the EI Act does not indicate that she has to look for full-time employment. [13] To be eligible to receive benefits, claimants must prove that they are capable of and available for work—on any given work day—and are unable to find suitable employment.Footnote 1 [14] There being no precise definition in the EI Act, the Federal Court of Appeal has held on many occasions that availability must be determined by reviewing three factors: the desire to return to the labour market as soon as a suitable job is offered; the expression of that desire through efforts to find a suitable job, and the non-setting of personal conditions that might unduly limit the chances of returning to the labour market.Footnote 2 [15] Furthermore, availability is determined for each working day in a benefit period for which the claimant can prove that on that day he or she was capable of and available for work, and unable to obtain suitable employment.Footnote 3 [16] The General Division found that the Claimant did not show a desire to return to the labour market as soon as a suitable job was available. It determined that the Claimant was doing a limited job search by only contacting one or two employers a week. [17] The General Division also found that the Claimant’s job efforts to find a suitable job where not sufficient and did not take into consideration her given health and physical capacities. [18] The General Division finally found that the Claimant set personal conditions on her job search by limiting her job search to exclude full-time employment and jobs outside of the horticulture or support work fields. [19] The General Division determined from the evidence that the Claimant’s restriction to part-time work was evidence of a self-imposed limitation on availability. It concluded that she did not meet the requirements of the EI Act. [20] The Claimant further submits that the Commission did not properly inform her of her obligations under the EI Act. [21] Availability is a prerequisite for entitlement to benefits. The Tribunal can not decide that the Claimant is entitled to benefits under the EI Act simply because the Commission has omitted to give her adequate information on her obligations, however regrettable that omission may be. It is not within the power of the Tribunal to change directly or indirectly the provisions and terms of the EI Act.Footnote 4 [22] In her application for leave to appeal, the Claimant has not identified any reviewable errors such as jurisdiction or any failure by the General Division to observe a principle of natural justice. She has not identified errors in law nor identified any erroneous findings of fact, which the General Division may have made in a perverse or capricious manner or without regard for the material before it, in coming to its decision. [23] After reviewing the appeal file, the General Division decision, and the Claimant’s arguments, the Tribunal finds that the General Division considered the evidence before it and properly applied the Faucher factors in determining the Claimant’s availability. [24] The Tribunal has no choice but to find that the appeal has no reasonable chance of success. Conclusion [25] The Tribunal refuses leave to appeal to the Appeal Division. Representative: S. G., Self-represented Footnotes Footnote 1 Section 18(1)(a) of the EI Act Footnote 2 Faucher v Canada (CEIC), A-56-96. Footnote 3 Canada (Attorney General) v Cloutier, 2005 FCA 73. Footnote 4 Attorney General of Canada v Stolniuk, A-686-93, Attorney General of Canada v Le Duc, A-134-95.