W. N. v. Canada Employment Insurance Commission

W. N. v. Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2015-02-12 Neutral citation 2015 SSTAD 199 Reference number AD-13-775 Member Pierre Lafontaine Division Appeal Division Decision Application for leave to appeal granted Decision Content On this page Decision Introduction Issue The law Analysis Conclusion Decision [1] The Tribunal grants leave to appeal and the appeal on the merits and refers the matter back to the General Division (Employment Insurance Section) for a new hearing by a Member. Introduction [2] On May 15, 2013, a Board of Referees found that: - The Applicant’s earnings had been allocated in accordance with sections 35 and 36 of the Employment Insurance Regulations (“the Regulations”); - The disentitlement imposed under section 37 of the Employment Insurance Act (“the Act”) was justified because he was absent from Canada; - The disentitlement imposed under section 18 of the Act was justified because he had not proved his availability; - The imposition of a modified penalty was justified under section 38 of the Act; - The issuance of an amended notice of violation was justified under section 7.1 of the Act. [3] The Applicant filed an application for leave to appeal to the Appeal Division on May 31, 2013. Issue [4] The Tribunal must determine whether the appeal has a reasonable chance of success. The law [5] As stated in subsections 56(1) and 58(3) of the Department of Employment and Social Development Act, “[a]n appeal to the Appeal Division may only be brought if leave to appeal is granted” and the Appeal Division “must either grant or refuse leave to appeal”. [6] Subsection 58(2) of the Department of Employment and Social Development Act provides that “[l]eave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success”. Analysis [7] Under subsection 58(1) of the Department of Employment and Social Development Act, the only grounds of appeal are that: (a) the Board of Referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; (b) the Board of Referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or (c) the Board of Referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. [8] The Respondent acknowledges that there was a breach of the rule that there is a right to be heard (audi alteram partem rule), since the Appellant was prevented from attending the hearing before the Board of Referees. [9] The Respondent therefore has no objection to the application for leave to appeal and to the matter being referred back to the General Division of the Social Security Tribunal so the Appellant can be heard. [10] In view of the arguments in support of the application for leave to appeal, and in view of the Respondent’s position, the Tribunal agrees to the granting of the application for leave to appeal as well as the appeal. Conclusion [11] The Tribunal grants leave to appeal and the appeal on the merits and refers the matter back to the General Division (Employment Insurance Section) for a new hearing by a Member. [12] The Tribunal orders that the Board of Referees’ decision dated May 15, 2013, be removed from the file.