MF v Canada Employment Insurance Commission

MF v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2022-02-03 Neutral citation 2022 SST 47 Reference number AD-22-34 Division Appeal Division Decision Application for leave to appeal refused Related decisions SST - MF v Canada Employment Insurance Commission - 2021 SST 884 - 2021-12-17 - General Division Subjects Appeal Division - Leave to appeal - No grounds of appeal Decision Content Citation: MF v Canada Employment Insurance Commission, 2022 SST 47 Social Security Tribunal of Canada Appeal Division Leave to Appeal Decision Applicant: M. F. Respondent: Canada Employment Insurance Commission Decision under appeal: General Division decision dated December 17, 2021 (GE-21-2175) Tribunal member: Janet Lew Decision date: February 3, 2022 File number: AD-22-34 On this page Decision Overview Issue Analysis Conclusion Decision [1] Leave (permission) to appeal is refused because the appeal does not have a reasonable chance of success. The appeal will not be going ahead. Overview [2] The Applicant, M. F. (Claimant), is appealing the General Division decision. The General Division found that the Claimant did not have good cause for the delay in applying for Employment Insurance benefits. The General Division concluded that the Claimant’s application could not be treated as though the Claimant had made it earlier than he did. [3] The Claimant argues that the General Division failed to follow rules of procedural fairness. The Claimant says that the General Division failed to appreciate the pressure he was under in looking for work. He says this pressure led to the delay in his application. He is asking the Appeal Division to reconsider his request to antedate (backdate) his application. [4] I have to decide whether the appeal has a reasonable chance of success.Footnote 1 Having a reasonable chance of success is the same thing as having an arguable case.Footnote 2 Issue [5] Is there an arguable case that the General Division failed to follow the rules of procedural fairness? Analysis [6] The Appeal Division must grant permission to appeal unless the appeal “has no reasonable chance of success.” A reasonable chance of success exists if there is a possible jurisdictional, procedural, legal, or certain type of factual error that the General Division made.Footnote 3 [7] Once an applicant gets permission from the Appeal Division, they move to the actual appeal. There, the Appeal Division decides whether the General Division made an error. If the Appeal Division decides that the General Division made an error, it then decides how to fix that error. Is there an arguable case that the General Division failed to follow the rules of procedural fairness? [8] The Claimant argues that the General Division failed to follow the rules of procedural fairness. [9] Fairness in the context of proceedings typically has to do with whether parties have adequate notice of hearings, have a full opportunity to present their case, and with whether the proceedings are fair and free of bias or the reasonable apprehension of bias. Fairness relates to issues of procedural fairness, rather than to whether an outcome is fair. [10] In this case, the Claimant argues that the General Division member displayed a lack of understanding about the pressure he was under to find work. He supports a disabled spouse and there are large medical bills. [11] The Claimant wrote in his application to the Appeal Division that the pressure to find work to pay extremely high medical bills and to care for a disabled spouse is all encompassing. He says the pressure to find work to pay bills caused the delay in applying for Employment Insurance benefits. He is asking for a reconsideration. [12] The Appeal Division does not have any authority to reassess or reconsider the Claimant’s claim at this stage of the appeal. Instead, the focus is on whether the appeal has a reasonable chance of success. [13] The Claimant’s arguments deal with whether the General Division made legal and factual errors when it decided whether the Claimant had good cause for his delay. If the General Division accepted that the Claimant had good cause, then the General Division would have allowed the Claimant to backdate his claim. [14] The Claimant says that the General Division did not appreciate the pressures he faced when looking for work. It is true that the General Division did not use the word “pressure” in its decision. But, the General Division was aware of the Claimant’s desire and efforts to find work. [15] The General Division noted that the Claimant’s spouse is disabled. She has serious medical issues. They have large medical bills. The General Division acknowledged that the Claimant wanted to find work that would provide sufficient pay or benefits so he could cover his wife’s medical costs. [16] I find that the General Division did not overlook this evidence of the Claimant’s efforts to find work. It simply found that the Claimant had not acted as a reasonable and prudent person would have done in similar circumstances throughout the entire period of the delay. [17] The General Division was entitled to draw this conclusion on the evidence before it. It found that the Claimant had not taken reasonably prompt steps to understand his rights and obligations under the Employment Insurance Act. The General Division determined that the law requires a claimant to show that they tried to learn about their rights and responsibilities as soon as possible.Footnote 4 And, if a claimant did not take reasonably prompt steps, they had to show that there were exceptional circumstances.Footnote 5 [18] As the General Division noted, the Claimant had delayed until about two months after he stopped working to make any enquiries into Employment Insurance benefits. The General Division found that this was not in keeping with what a reasonable and prudent person would have done in similar circumstances throughout the entire period of the delay. [19] The General Division also found that the Claimant had not presented any exceptional circumstances that would have excused him from the requirement to take reasonably prompt steps to understand his rights and obligations. The General Division was also entitled to draw this conclusion, given the evidence. As the General Division noted, the Claimant had been able to look for work day after day from May 15, 2021, onward, so could have made enquiries about Employment Insurance benefits before the end of July 2021. [20] The General Division identified and properly applied the applicable law to the facts of the case. As the Federal Court of Appeal held in a case called Quadir, “the application of settled principles to the facts is a question of mixed fact and law, and is not an error of law.”Footnote 6 The Court of Appeal has made it clear that the Appeal Division does not have any authority to interfere with the General Division decision in such instances where there is no extricable error of law. [21] Finally, I have also reviewed the underlying record, to ensure that the General Division neither erred in law nor overlooked or misconstrued any other important evidence or arguments. The General Division member’s summary of the facts is consistent with the evidentiary record and his analysis is sound and comprehensive. His conclusions are consistent with the law. As such, I am not satisfied that the appeal has a reasonable chance of success. [22] I am not satisfied that the Claimant has an arguable case that the General Division failed to follow the rules of procedural fairness or that it made legal and factual errors. Conclusion [23] Permission to appeal is refused because the appeal does not have a reasonable chance of success. This means that the appeal will not be going ahead. Footnotes Footnote 1 Under section 58(2) of the Department of Employment and Social Development Act (DESD Act), I have to refuse permission if I am satisfied, “that the appeal has no reasonable chance of success.” Footnote 2 See Fancy v Canada (Attorney General), 2010 FCA 63. Footnote 3 See section 58(1) of the DESD Act. For factual errors, the General Division had to have based its decision on an error that had been made in a perverse or capricious manner, or without regard for the evidence before it. Footnote 4 See General Division decision at para 15, citing Canada (Attorney General) v Kaler, 2011 FCA 266. Footnote 5 See General Division decision at para 15. Footnote 6 See Quadir v Canada (Attorney General), 2018 FCA 21 at para 9.