SG v Canada Employment Insurance Commission and X

SG v Canada Employment Insurance Commission and X Collection Employment Insurance (EI) Decision date 2024-11-05 Neutral citation 2024 SST 1343 Reference number AD-24-446 Member Melanie Petrunia Division Appeal Division Decision Appeal allowed Featured decisions Yes Related decisions SST - X v Canada Employment Insurance Commission and SG - 2024 SST 1344 - 2024-03-25 - General Division SST - X v Canada Employment Insurance Commission and SG - 2025 SST 166 - 2025-02-21 - General Division Summary: When her sickness benefits ended, the Canada Employment Insurance Commission (the Commission) decided that the Appellant could not be paid regular Employment Insurance benefits because she did not have just cause for leaving her job. The Commission changed its position on reconsideration and decided that the Appellant had no reasonable alternative but to leave her job when she did. The Employer appealed this decision to the General Division. The Appellant did not attend the hearing and the appeal was allowed. The Appellant appealed the General Division decision to the Appeal Division. She argued that the General Division did not follow a fair process when it proceeded with the hearing without her. In its decision, the General Division noted that the Appellant did not attend the hearing and that it could proceed without her if it was satisfied that she received the Notice of Hearing. The General Division stated that the Notice of Hearing was sent to the Appellant and relied on the fact that the Appellant called the Tribunal after receiving the Notice of Hearing to say that she did not plan to attend. It noted that the Appellant made a conscious decision not to attend the hearing even though the outcome could affect her financially. The Appellant testified that she went to a nearby Service Canada location when she received a letter from the Tribunal about the Employer’s appeal. She said that she had to speak to a number of different people because no one knew what to tell her. Finally, she was told by a supervisor that she didn’t have to take part in the appeal because she “won” on reconsideration, and no one could take her benefits away now. The Commission agreed that the Appellant was misinformed about the potential implications of the Employer’s appeal. The Appeal Division accepted the Appellant’s evidence. It found that the Appellant’s explanation that she would have attended the hearing if she had known that it could result in her losing Employment Insurance benefits credible. She had requested reconsideration of the Commission’s initial decision and the Appeal Division found it unlikely that she would have chosen not to participate in the hearing if she knew that it could result in the decision about her entitlement changing again. The Appeal Division determined that the Appellant did not receive a fair process when the General Division proceeded with the hearing in her absence. She did not attend the hearing because she was misinformed about the potential outcomes by Commission staff. In the telephone log of the call with Tribunal staff, it was noted that the Appellant said she would not attend but there was nothing to indicate that she was told at this time about the possible impact that decision would have. The Appeal Division allowed the appeal and returned the matter to the General Division for a new hearing. Decision Content Citation: SG v Canada Employment Insurance Commission and X, 2024 SST 1343 Social Security Tribunal of Canada Appeal Division Decision Appellant: S. G. Respondent: Canada Employment Insurance Commission Representative: Nikkia Janssen Added Party: X Representative: A. A. Decision under appeal: General Division decision dated March 25, 2024 (GE-24-191) Tribunal member: Melanie Petrunia Type of hearing: In person Hearing date: October 28, 2024 Hearing participants: Appellant Respondent’s representative Added Party Added Party’s representative Decision date: November 5, 2024 File number: AD-24-446 On this page Decision Overview Preliminary matter Issues Analysis Conclusion Decision [1] The appeal is allowed. The Claimant did not attend the General Division hearing because she was misinformed. I am returning the matter to the General Division for reconsideration. Overview [2] The Appellant, S. G. is the Claimant in this matter. She left her job with the Added Party, X. (Employer) and applied for employment insurance (EI) sickness benefits. [3] When her sickness benefits ended, the Respondent, the Canada Employment Insurance Commission (Commission), decided that the Claimant could not be paid regular EI benefits because she did not have just cause for leaving her job. [4] The Commission changed its position on reconsideration and decided that the Claimant had no reasonable alternative but to leave her job when she did. The Employer appealed this decision to the Tribunal’s General Division. The Claimant did not attend the hearing and the appeal was allowed. [5] The Claimant has appealed the General Division decision to the Tribunal’s Appeal Division. She argues that the General Division did not follow a fair process when it proceeded with the hearing without her. The Employer is the Added Party in this matter. [6] I am allowing the Claimant’s appeal. In the interests of natural justice, I am returning the matter to the General Division for reconsideration. Preliminary matter I am accepting the Claimant’s new evidence [7] In her application for leave to appeal, the Claimant submitted new evidence about why she did not attend the hearing at the General Division.Footnote 1 The Appeal Division does not normally accept new evidence but there are limited exceptions to this rule. One of these exceptions is when the evidence is about a “procedural defect.”Footnote 2 I allowed the Claimant to testify at the hearing and provide evidence on this limited issue. [8] The Claimant referred to other new evidence that was not before the General Division and does not fall under any of the exceptions. I have not considered this evidence. Issues [9] The issues in this appeal are: a) Did the General Division fail to follow procedural fairness when it proceeded with the hearing without the Claimant in attendance? b) If so, how should the error be fixed? Analysis [10] I can intervene in this case only if the General Division made a relevant error. So, I have to consider whether the General Division:Footnote 3 failed to provide a fair process; failed to decide an issue that it should have decided, or decided an issue that it should not have decided; misinterpreted or misapplied the law; or based its decision on an important mistake about the facts of the case. The General Division decision [11] In its decision, the General Division notes that the Claimant did not attend the hearing and that it can proceed without her if it is satisfied that she received the Notice of Hearing.Footnote 4 The General Division states that the Notice of Hearing was sent to the Claimant and relies on the fact that the Claimant called the Tribunal after receiving the Notice of Hearing to say that she does not plan to attend.Footnote 5 It noted that the Claimant made a conscious decision not to attend the hearing despite the fact that the outcome could affect her financially.Footnote 6 [12] The General Division found that the Claimant had not shown just cause for leaving her job when she did because she had reasonable alternatives to leaving. It noted that the Claimant had the burden of proving that she had just cause. The General Division found that the Claimant was not credible and that her decision not to attend the hearing did not bolster her credibility.Footnote 7 The Claimant did not attend the hearing because she was misinformed [13] The Claimant testified that she went to a nearby Service Canada location when she received a letter from the Tribunal about the Employer’s appeal. She said that she had to speak to a number of different people because no one knew what to tell her. Finally, she was told by a supervisor that she didn’t have to take part in the appeal because she “won” on reconsideration, and no one could take her benefits away now. [14] The Employer challenged this because the Claimant said she went to Service Canada in January and the Notice of Hearing was not sent until February 6, 2024. The Employer also says that the Claimant initially tried to call into the hearing on the wrong day. During this call, she told the Tribunal staff that she would not attend the hearing because she thinks the Employer is crazy and doesn’t want to speak to them.Footnote 8 [15] In response to the Employer, the Claimant explained that she went to Service Canada in January when she received the letter from the Tribunal explaining that the Employer had filed an appeal and she was being added as a party.Footnote 9 [16] The Commission agrees that the Claimant was misinformed about the potential implications of the Employer’s appeal. It accepts the Claimant’s new evidence that she was told that she did not have to attend the hearing because she could not lose her benefits now that the Commission had agreed she was entitled. [17] I accept the Claimant’s evidence. I found her to be forthright in her evidence and she has maintained both in her application for leave to appeal, and in her testimony at the hearing, that she attended a Service Canada location in January 2024. This was after she received the letter about her Employer’s appeal. [18] The Claimant’s explanation that she would have attended the hearing if she had known that it could result in her losing her EI benefits is credible. She had requested reconsideration of the Commission’s initial decision and I find it unlikely that she would have chosen not to participate in the hearing if she knew that it could result in the decision about her entitlement changing again. [19] I find that the Claimant did not receive a fair process when the General Division proceeded with the hearing in her absence. She did not attend the hearing because she was misinformed about the potential outcomes by Commission staff. In the telephone log of the call with Tribunal staff, it’s noted that the Claimant said she would not attend but there is nothing to indicate that she was told at this time about the possible impact that decision would have. [20] I acknowledge that the General Division member would not have known that the Claimant had been misinformed when it decided to proceed without her. It referenced the telephone log in support of its finding that the Claimant was aware of the hearing and chose not to attend. [21] Despite this, the Claimant is entitled to a fair process and I accept that she would have chosen to attend and present her case if she had been properly informed about the appeal process. Remedy [22] The General Division made a reviewable error when it failed to provide a fair process. This means that I can substitute my own decision, or I can refer the matter back to the General Division for reconsideration.Footnote 10 I can decide any question of law or fact that is needed to resolve the Claimant’s appeal.Footnote 11 [23] The Claimant and the Commission agree that the matter should be sent back to the General Division for reconsideration. The Employer maintains that it should not have to go through the process of having another hearing before the General Division when the Claimant made the decision not to attend. [24] I find that this matter must return to the General Division for reconsideration because the record is not complete. The Claimant did not attend the hearing and did not have an opportunity to testify and fully present her case. This means that the record is not complete, and I cannot substitute my decision. Conclusion [25] The appeal is allowed. The Claimant did not attend the General Division hearing because she was misinformed and so she did not receive a fair process. The matter will return to the General Division for a new hearing. Footnotes Footnote 1 AD1B-4 and AD1B-5 Footnote 2 See Sharma v Canada (Attorney General), 2018 FCA 48 and Sibbald v Canada (Attorney General), 2022 FCA 157. Footnote 3 The relevant errors, formally known as “grounds of appeal,” are listed under section 58(1) of the Department of Employment and Social Development Act (DESD Act). Footnote 4 General Division decision at para 12. Footnote 5 General Division decision at para 13. Footnote 6 General Division decision at para 14. Footnote 7 General Division decision at para 39. Footnote 8 See telephone log dated February 16, 2024. Footnote 9 See GD5 dated January 23, 3034. Footnote 10 Section 59(1) of the DESD Act sets out my powers to fix an error. Footnote 11 See section 64(1) of the DESD Act.