MB v Canada Employment Insurance Commission

MB v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2020-02-25 Neutral citation 2020 SST 529 Reference number GE-19-4386 Member Bernadette Syverin Division General Division Decision Application to rescind or amend refused Related decisions SST - MB v Canada Employment Insurance Commission - 2020 SST 523 - 2020-06-23 - Appeal Division Decision Content On this page Decision Overview Preliminary issues Issue Analysis Conclusion Decision [1] M. B. has not proven that the initial Social Security Tribunal (Tribunal) decision should be rescinded or amended. This means that the initial decision is upheld. Overview [2] A party can ask the Tribunal to rescind or amend its decision. The party who makes the request is the applicant. In this case, the Applicant is M. B. [3] The Applicant has owned a business with a partner since July 1, 2018. He applied for Employment Insurance benefits in December 2018. The Respondent decided not to pay him benefits, believing that he was not unemployed and that he was not available for work. He appealed this decision to the Tribunal. [4] On November 15, 2019, I decided to dismiss the appeal, and the Respondent’s decision was upheld. The Applicant now asks to have this decision rescinded or amended. He has submitted new information with this request. He thinks that the decision made on November 15, 2019, should be modified because the partner with whom he runs the business collected Employment Insurance benefits. He would like to have the decision changed so that he can also collect benefits. Preliminary issues [5] On December 31, 2019, the Tribunal informed the parties that it had to receive submissions or additional documents in the 30 days following and that once that time had lapsed, a decision could be made on the record. [6] The Respondent provided submissions, but the Applicant did not provide any additional document or submissions. So, this decision regarding the rescindment or amendment is made based on the documents and submissions on the record for the following reasons: A further hearing was not required; There are no gaps in the information in the file or need for clarification; This method of proceeding respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness, and natural justice permit. Issue [7] Has the Applicant proven that the initial decision should be rescinded or amended? If so, I must decide how the initial decision will be amended. Analysis [8] The Tribunal cannot simply rescind or amend a decision just because an applicant asks it to do so. The Tribunal can rescind or amend a decision for the following two reasons: a) new facts are presented to the Tribunal or b) the decision was made without knowledge of, or was based on a mistake as to, some material fact.Footnote 1 [9] To be considered new facts, the new facts must have happened after the decision was made or before the decision was made if they could not have been discovered with the exercise of reasonable diligence; the new facts must also be determinative of the issue to be decided.Footnote 2 Furthermore, a different version of facts already known, mere afterthoughts, or the sudden realization of the consequences of acts done in the past are not new facts.Footnote 3 Are there new facts? [10] I find that the facts presented are not new for the following reasons. [11] The issues in question in the initial decision were to determine whether the Applicant was unemployed and whether he was available for work. I decided that he was not unemployed and that he had not shown his availability for work. He is asking me to change the decision because his partner, with whom he runs his business, collected Employment Insurance benefits. He does not understand why he cannot collect them. To support this argument, he has provided a copy of a decision made in his partner’s file. This decision was made on September 19, 2019, by another member of the Tribunal. I note that this decision was not part of the evidence before me when I made the November 15, 2019, decision. However, I find that this fact is not new for the following reasons. [12] During the hearing that led to the November 15, 2019, decision, the Applicant spoke about the fact that another Tribunal member had granted benefits to his partner. I cite paragraph 4 of the decision: [translation] “The Appellant explained to me that the Commission had rejected his partner’s application for benefits, but after appealing that decision, his partner’s appeal succeeded because a Tribunal member recently decided that his partner was unemployed and could receive Employment Insurance benefits.” [13] In light of this, it is clear that the fact that another Tribunal member had granted benefits to the partner was known before the November 15, 2019, decision was made. Furthermore, this fact was not determinative of the issue to be decided, which was to determine whether the Applicant himself was unemployed and available for work. So, I find that it is not a new fact. Moreover, the November 15, 2019, decision reads as follows: [translation] “I want to make it clear that every Tribunal decision is made based on the specific facts in each file, and I am in no way bound by the decisions made by other Tribunal members in the file of the Appellant’s partner.” So, the November 15, 2019, decision was not based on a mistake regarding this fact. [14] The Applicant argues that he owns 50% of the shares in the business. To support this fact, he submitted the shareholders agreement signed in March 2019. I notice that this agreement was not part of the evidence before me, but the fact that the Applicant owns 50% of the shares in the business is not new. [15] The fact that the Applicant owns 50% of the shares in the business was, in fact, known before the November 15, 2019, decision was made. In his application for benefits, he said that he owns more than 40% of the shares in his business. He also told the Respondent that he owns 50% of the shares in his business.Footnote 4 This does not take into account the fact that the Applicant told me during the hearing that he owns 50% of the shares in his business. The November 25 [sic], 2019, decision was not made on a mistake regarding this fact because I took it into account to find that the Applicant could have normally relied on his business as his principal means of livelihood.Footnote 5 [16] I understand that my review of the Applicant’s file has not led to the finding he wanted to have. I am of the view that, with his application and the accompanying documents, he has submitted documents supporting facts that are already known. As a result, he is merely rearguing his case based on facts that I have already reviewed. An application to rescind or amend is clearly not intended to enable applicants to reargue their appeal when a decision has already been made. [17] As a result, having reviewed the evidence mentioned above, I find that the Applicant has not presented new facts. Furthermore, he has not satisfied me that the November 15, 2019, decision was made without knowledge of, or was based on a mistake as to, some material fact. As a result, I must refuse the application to rescind or amend. Conclusion [18] The application to rescind or amend the decision made on November 15, 2019, is refused. Heard on: Method of proceeding: On the record Appearance: M. B., Applicant Footnotes Footnote 1 According to section 66 of the Department of Employment and Social Development Act. Footnote 2 Canada (Attorney General) v Chan, [1994] FCA 1916. Footnote 3 Canada (Attorney General) v Chan, [1994] FCA 1916. Footnote 4 This is set out on page GD3-26 of the appeal file as part of a conversation in November 2018. Footnote 5 This is set out in paragraphs 14 and 15 of the November 15, 2019, decision.