AA v Canada Employment Insurance Commission

AA v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2020-01-31 Neutral citation 2020 SST 67 Reference number AD-20-38 Member Pierre Lafontaine Division Appeal Division Decision Application for leave to appeal refused Related decisions SST - A. A. v. Canada Employment Insurance Commission - 2019 SST 1540 - 2019-12-03 - 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, A. A. (Claimant) lost his employment with a “car share” rental company on June 22, 2018, when his employer determined that he had been using the employer’s cars for personal use, in breach of the employer’s policies. The Claimant secured alternate employment with two subsequent employers and on October 20, 2018, he submitted an application for Employment Insurance regular benefits. The Respondent, the Canada Employment Insurance Commission (Commission), determined that the Claimant had lost his employment with the car share employer due to misconduct, and imposed a stop payment. The Commission also determined that the Claimant has not acquired enough hours of insurable employment since June 22, 2018, to qualify for regular benefits. [3] The Claimant asked the Commission to reconsider its decision but the Commission maintained its original decision. The Claimant appealed to the General Division of the Tribunal. [4] The General Division found that the Claimant was aware that his actions breached a duty he owed to the employer and would result in his dismissal. It concluded that the Claimant’s actions constituted misconduct. The General Division also concluded that the Claimant did not accumulate enough hours from his subsequent employments to qualify for benefits. [5] The Claimant was granted leave to appeal to the Appeal Division. However, his appeal was dismissed on December 30, 2019. [6] The Claimant also filed an application to rescind or amend the General Division’s decision. The Application was refused. The General Division concluded that the Claimant did not present new facts or prove that the decision was made without knowledge of or include a mistake of a material fact. [7] The Claimant now seeks leave to appeal of the General Division’s decision dismissing his application to rescind or amend. The Claimant submits that the General Division erred in law in its interpretation of section 66 of the Department of Employment and Social Development Act (DESD Act). He argues that the General Division failed to rescind or amend its original decision, based on evidence he submitted. [8] The Tribunal must decide whether the Claimant raised some reviewable error of the General Division upon which the appeal might arguably succeed. [9] The Tribunal refuses leave to appeal because the Claimant’s appeal has no reasonable chance of success. Issue [10] Does the Claimant raise some reviewable error of the General Division upon which the appeal might arguably succeed? Analysis [11] Section 58(1) of the DESD Act specifies the only grounds of appeal of a General Division decision. These reviewable errors are that the General Division: failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; it erred in law in making its decision, whether or not the error appears on the face of the record; or it 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. [12] An application for leave to appeal is a preliminary step to a hearing on the merits. It is an initial hurdle for the Claimant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the leave to appeal stage, the Claimant does not have to prove his case but must establish that the appeal has a reasonable chance of success based on a reviewable error. In other words, that there is arguably some reviewable error upon which the appeal might succeed. [13] Therefore, before leave can be granted, 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. [14] This means that the Tribunal must be in a position to determine, in accordance with subsection 58(1) of the DESD Act, whether there is a question of natural justice, jurisdiction, law, or fact, the answer to which may lead to the setting aside of the General Division decision under review. Does the Claimant raise some reviewable error of the General Division upon which the appeal might arguably succeed? [15] The General Division found that the Claimant was aware that his actions breached a duty he owed to the employer and would result in his dismissal. It concluded that the Claimant’s actions constituted misconduct. The General Division also concluded that the Claimant did not accumulate enough hours from his subsequent employments to qualify for benefits. [16] The Claimant was granted leave to appeal to the Appeal Division. However, his appeal was dismissed. [17] The Claimant also filed an application to rescind or amend the General Division’s decision. The application was refused. The General Division concluded that the Claimant did not present new facts or prove that the decision was made without knowledge of or include a mistake of a material fact. [18] The Claimant now seeks leave to appeal of the General Division’s decision dismissing his application to rescind or amend. He submits that the General Division erred in law in its interpretation of section 66 of the DESD Act. He argues that the General Division failed to rescind or amend its original decision, based on evidence he submitted. [19] Section 66 of the DESD Act reads as follows: Amendment of decision 6 (1) The Tribunal may rescind or amend a decision given by it in respect of any particular application if a) in the case of a decision relating to the Employment Insurance Act, new facts are presented to the Tribunal or the Tribunal is satisfied that the decision was made without knowledge of, or was based on a mistake as to, some material fact; [20] In support of his application to rescind or amend the General Division’s decision, the Claimant re-submitted copies of text messages between himself and the employer. He included written submission with these text messages and indicated these messages were proof that there was a work shortage. He put forward that he was asked to take a break for a while and then brought back for a few days before being dismissed. He submitted that the employer wanted to fire him to avoid given him notice. He also submitted news reports that were posted on September 27, 2019, indicating that the employer is ceasing business in Calgary. [21] The test for determining whether “new facts” exist has long been established. “New facts”, are facts that either happened after the decision was rendered or had happened prior to the decision but could not have been discovered by a claimant acting diligently and in both cases the facts alleged must have been decisive of the issue put to the General Division. [22] The Tribunal notes that the Claimant had already introduced before the General Division these text messages in support of his position and that the General Division did consider them. The General Division concluded that the preponderant evidence before it showed that the Claimant had lost his employment because he had been using the employer’s cars for personal use, in breach of the employer’s policies. It dismissed the Claimant’s pretention that he had lost his employment because of a work shortage. [23] In regards to the news reports that were posted on September 27, 2019, to the effect that the employer was leaving Calgary, this alleged fact was not decisive of the issue before the General Division, who had to decide whether the Claimant had lost his employment because of his own misconduct on June 22, 2018, one year before the posting of said reports. [24] The Claimant did not raise before the General Division any relevant new facts that either happened after the decision had been rendered or had happened prior to the decision but could not have been discovered by him acting diligently. He also has not demonstrated that the General Division decision was given without knowledge of, or that it was based on a mistake as to, some material fact. [25] As stated by the General Division, section 66 of the DESD Act is not intended to give a claimant an opportunity to re-argue his case after an unfavorable decision. [26] After reviewing the appeal docket, the General Division’s rescind or amend decision and the Claimant’s arguments in support of his request for leave to appeal, the Tribunal finds that the appeal has no reasonable chance of success. The Claimant has not set out reasons that fall into the above-enumerated grounds of appeal that could possibly lead to the reversal of the disputed decision. Conclusion [27] The Tribunal refuses leave to appeal to the Appeal Division. Representative: A. A., Self-represented