VS v Canada Employment Insurance Commission

VS v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2020-03-06 Neutral citation 2020 SST 211 Reference number AD-20-98 Member Pierre Lafontaine Division Appeal Division Decision Application for leave to appeal refused Related decisions SST - VS v Canada Employment Insurance Commission - 2020 SST 215 - 2020-01-13 - 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, V. S. (Claimant), worked for the City of Montréal. He was suspended from his employment for four weeks. The Claimant applied for Employment Insurance benefits. The Canada Employment Insurance Commission (Commission) informed him that he was not entitled to Employment Insurance benefits because he was suspended from his employment due to his misconduct. The Commission determined that the Claimant stole time from his employer by leaving his work before the end of his shift and that this constituted misconduct within the meaning of the Employment Insurance Act (EI Act). [3] The Claimant requested a reconsideration of that decision, but the Commission upheld its initial decision. The Claimant appealed the reconsideration decision to the Tribunal’s General Division. [4] The General Division found that the Claimant did not respect his work schedule by leaving earlier than scheduled on June 7, 2019, without telling anyone. Given the Claimant’s previous suspensions for similar misconduct, the General Division found that the Claimant knew or should have known that he would be, at a minimum, suspended again for leaving work without permission. The General Division found that the Claimant was suspended because of his misconduct between August 31 and September 28, 2019. [5] The Claimant now seeks leave to appeal the General Division decision. He submits that he disagrees with the General Division decision because it contains inaccuracies. [6] On February 14, 2019, the Tribunal sent the Claimant a letter asking him to explain in detail the reasons for his appeal. The Claimant repeated that he disagrees with the General Division decision because it contains inaccuracies. [7] The Tribunal must decide whether there is an arguable case that the General Division made a reviewable error based on which the appeal has a reasonable chance of success. [8] The Tribunal refuses leave to appeal because the Claimant has not raised a ground of appeal based on which the appeal has a reasonable chance of success. Issue [9] Does the Claimant’s appeal have a reasonable chance of success based on a reviewable error the General Division may have made? Analysis [10] Section 58(1) of the Department of Employment and Social Development Act (DESD Act) sets out the only grounds of appeal for a General Division decision. These reviewable errors are the following: (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 made in a perverse or capricious manner or without regard for the material before it. [11] An application for leave to appeal is a preliminary step to a hearing on the merits of the case. 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; instead, he must establish that his appeal has a reasonable chance of success. In other words, he must show that there is arguably a reviewable error based on which the appeal might succeed. [12] The Tribunal will grant leave to appeal if it is satisfied that at least one of the Claimant’s stated grounds of appeal has a reasonable chance of success. Does the Claimant’s appeal have a reasonable chance of success based on a reviewable error the General Division may have made? [13] In support of his application for leave to appeal, the Claimant argues that he disagrees with the General Division decision because it contains inaccuracies. [14] The General Division determined that the Claimant did not respect his work schedule by leaving earlier than scheduled on June 7, 2019, without telling anyone. Given the Claimant’s previous suspensions for similar misconduct, the General Division found that the Claimant knew or should have known that he would be, at a minimum, suspended again for leaving work without permission. The General Division found that the Claimant was suspended because of his misconduct between August 31 and September 28, 2019. [15] The Tribunal notes that the Claimant admitted to leaving his workstation a half hour early because he was tired. Furthermore, the evidence shows that the Claimant had already been suspended by his employer for the same reason. Therefore, the employer explained to the Claimant that it would have no tolerance for this type of behaviour and that harsher penalties would be applied if it happened again. It is clear that the Claimant was suspended because of his misconduct. [16] It is well established in case law that theft committed by an employee at the employer’s expense constitutes misconduct under the EI Act. [17] The Tribunal finds that, despite the Tribunal’s specific request, the Claimant has not raised any issue of law, fact, or jurisdiction that could lead to the setting aside of the decision under review. [18] After reviewing the appeal file, the General Division decision, and the arguments in support of the application for leave to appeal, the Tribunal has no choice but to find that the appeal has no reasonable chance of success. Conclusion [19] The Tribunal refuses leave to appeal to the Appeal Division. Representative: V. A., self-represented