YE v Canada Employment Insurance Commission

YE v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2024-09-12 Neutral citation 2024 SST 1096 Reference number AD-24-260 Member Elizabeth Usprich Division Appeal Division Decision Appeal dismissed Featured decisions Yes Related decisions SST - YE v Canada Employment Insurance Commission - 2024 SST 1097 - 2024-03-07 - General Division Subjects Appeal Division - Error of law Appeal Division - Remedy EI - Outside of Canada - Medical treatment (self or family member) Summary: The Claimant applied for Employment Insurance sickness benefits on May 1, 2023. She left Canada for El Salvador on May 8, 2023, to seek medical treatment. The Canada Employment Insurance Commission (the Commission) said the Claimant couldn’t get Employment Insurance benefits for two reasons. First, the Claimant was out of Canada and didn’t fall under an exception that would allow Employment Insurance benefits. Second, for part of this time, the Commission said the Claimant was on a planned vacation and therefore wasn’t otherwise available for work. The General Division agreed with the Commission. The Claimant then appealed the General Division’s decision to the Appeal Division. The Appeal Division concluded that the General Division correctly identified that the Employment Insurance Act says that if you are out of Canada, then you can’t get Employment Insurance benefits. But there are exceptions to this rule. The Claimant argued she needed medical treatment that wasn’t readily or immediately available in the Claimant’s area of residence. On April 24, 2023, the Claimant went to her NP for an ongoing medical issue. The NP gave the Claimant a medical note so she could be excused from work. The next day, the NP referred the Claimant for an MRI and to see a neurologist. The MRI form had a box checked that said “urgent”. The Claimant relied on the MRI referral form as proof that she urgently needed medical treatment. The Claimant said her family told her to go to El Salvador for treatment because she could get it more quickly. The General Division relied on the referral to the neurologist and that it didn’t say the Claimant’s condition was life threatening or deteriorating. The Appeal Division held that the legal test says treatment must be required without undue delay. The legal test doesn’t say the condition must be life threatening or deteriorating. If the condition was life threatening, it would suggest someone needed immediate treatment. But making this a requirement elevates the standard. The Appeal Division also found that the General Division relied on an irrelevant factor. The Claimant testified the NP told her that the MRI and neurologist referrals could take between two and six months to receive them. The General Division used this as part of the basis for finding the Claimant didn’t need medical treatment sooner. The legal test doesn’t require looking at whether referrals timelines are met. The Appeal Division concluded that by imposing extra requirements, the General Division applied a more stringent version of the legal test. This is an error of law. The Appeal Division then rendered the decision the General Division should have made. But the outcome remains the same. The Appeal Division found that the Claimant didn’t prove, from a medical perspective, that her treatment was required without undue delay. Other than the Claimant’s beliefs, the checked box on an MRI form was the only other evidence. This, by itself, is simply not enough evidence. This means the Claimant hasn’t shown she falls under the exception. The Appeal Division determined that the Claimant wasn’t entitled to Employment Insurance benefits when she was out of Canada from May 9, 2023, to June 15, 2023. The appeal was dismissed. Decision Content Citation: YE v Canada Employment Insurance Commission, 2024 SST 1096 Social Security Tribunal of Canada Appeal Division Decision Appellant: Y. E. Representative: Thoby King Respondent: Canada Employment Insurance Commission Representative: Julie Duggan Decision under appeal: General Division decision dated March 7, 2024 (GE-24-269) Tribunal member: Elizabeth Usprich Type of hearing: Videoconference Hearing date: July 18, 2024 Hearing participants: Appellant Appellant’s representative Respondent’s representative Decision date: September 12, 2024 File number: AD-24-260 On this page Decision Overview Preliminary matters Issue Analysis Conclusion Decision [1] The appeal is dismissed. [2] The General Division made an error of law. I have given the decision the General Division should have given. But the outcome remains the same. The Claimant isn’t entitled to EI benefits for the time she was out of Canada. Overview [3] Y. E. is the Claimant. She applied for Employment Insurance (EI) sickness benefits on May 1, 2023. She left Canada for El Salvador on May 8, 2023 to seek medical treatment. [4] The Canada Employment Insurance Commission (Commission) said the Claimant can’t get EI sickness benefits for two reasons. First, the Claimant was out of Canada and didn’t fall under an exception that would allow EI benefits. Second, for part of this time, the Commission says the Claimant was on a planned vacation and therefore wasn’t otherwise available for work.Footnote 1 [5] The Social Security Tribunal (Tribunal) General Division agreed with the Commission. The Claimant argues the General Division made errors of law. She says she left Canada because she needed treatment that wasn’t immediately available near her. She also says she wasn’t on a vacation, so she was otherwise available for work. [6] The General Division made an error of law. The General Division stated the correct legal test but applied it in a way that creates a higher standard. But after analyzing the Claimant’s evidence, I have reached the same conclusion. The Claimant isn’t entitled to EI benefits for the time she was out of Canada. Preliminary matters [7] The Claimant wants me to consider the realities of the medical system in Canada when deciding if the Claimant met an exception to seek treatment out of Canada. The Commission argued this is new evidence that wasn’t before the General Division. [8] The Claimant didn’t provide any specifics about the realities of the medical system in Canada. Rather, there were vague arguments.Footnote 2 Because there are no specifics being brought forward, I don’t find this is actually new evidence. Issue [9] The issues in this appeal are: a) Did the General Division make an error of law by incorrectly applying the legal test for being out of Canada for the purpose of seeking medical treatment that wasn’t readily or immediately available? b) If so, how should the error be fixed? Analysis [10] I can intervene (step in) only if the General Division made a relevant error.Footnote 3 Only certain errors can be considered. In this appeal, the focus is if there is an error of law in the General Division decision. Deference isn’t owed on errors of law. [11] The Claimant says the General Division made several errors of law. She says it applied too high a standard when analyzing if the Claimant met an exception that would allow EI benefits when she was out of Canada. Next, she says the General Division made errors when it decided the Claimant was on a planned vacation and therefore was not otherwise available for work. The Commission says the General Division didn’t make any error of law and applied the correct test and analysis.Footnote 4 The General Division made an error of law because it incorrectly applied the legal test for being out of Canada for the purpose of seeking medical treatment that wasn’t readily or immediately or available [12] This case is about whether the Claimant is entitled to EI benefits while she was out of Canada from May 9, 2023 to June 15, 2023.Footnote 5 The Claimant was ill. She went to her primary care provider, a Nurse Practitioner (NP) who made referrals for the Claimant. The NP told the Claimant the referrals could take two to six months. The Claimant decided to go to El Salvador because she could get faster treatment there. The EI Act only allows EI benefits to be paid to those outside of Canada in limited circumstances [13] The General Division correctly identified that the EI Act says if you are out of Canada, then you can’t get EI benefits.Footnote 6 But there are exceptions to this rule.Footnote 7 The Claimant argues she needed medical treatment that wasn’t readily or immediately available in the Claimant’s area of residence.Footnote 8 [14] On April 24, 2023, the Claimant went to her NP for an ongoing medical issue. The NP gave the Claimant a medical note so she could be excused from work. The next day, the NP referred the Claimant for an MRI and to see a neurologist.Footnote 9 The MRI form had a box checked that said “urgent”. The Claimant relies on the MRI referral form as proof that she urgently needed medical treatment. The Claimant says her family told her to go to El Salvador for treatment because she could get it more quickly.Footnote 10 “Readily or immediately available” requires an urgency to treatment from a medical perspective [15] The term “readily or immediately available” isn’t defined in the EI Act or its Regulations. There is also no binding authority to give guidance. But this issue has come up before. Both parties rely on a previous Tribunal Appeal Division decision, A.G., for guidance.Footnote 11 [16] In A.G., the Appeal Division reviewed previous cases on the issue of what “readily or immediately available” means. The conclusion was there must be an element of urgency when deciding if a medical treatment is “readily or immediately available”.Footnote 12 Further, the urgency of the treatment must be looked at from a medical perspective.Footnote 13 So, the medical evidence must show if a person needs treatment without undue delay.Footnote 14 This is the test the General Division stated. The parties say this is the relevant test.Footnote 15 I agree. [17] The General Division decided the medical evidence didn’t support that the Claimant needed medical treatment without undue delay. The General Division listed five reasons for its decision.Footnote 16 The Claimant argues the General Division created a higher standard than what the test says a party should meet. I agree. [18] The General Division said the NP could have marked the priority level on the MRI referral as “stat/today”. The MRI referral form only had three possible referral priorities.Footnote 17 They were: “stat/today”, “urgent”, or “routine”. The NP chose “urgent”. It is unknown why the NP picked that box over one of the others. There is a danger to infer that the “urgent” box doesn’t mean urgent, just because there is a higher priority. It is not known if there are particular requirements in the medical field in picking a certain box over another. So, it can’t be inferred what the NP meant. [19] The Claimant argues that by requiring the word urgency to mean that the treatment had to be “stat/today” elevates the standard. I agree. This isn’t the test. The test is that there medical evidence that shows an urgency for the care and the care isn’t readily or immediately available in the person’s area of residence. [20] The General Division said the Claimant should have spoken to her NP about seeking medical treatment out of Canada and to get an update about the status of the referrals. The test doesn’t require this. Rather, it is up to the Claimant to bring evidence that supports her position. This type of evidence may have helped the Claimant support her case, but it isn’t a requirement. [21] The General Division relied on the referral to the neurologist and that it didn’t say the Claimant’s condition was life threatening or deteriorating. The test says treatment must be required without undue delay. The test doesn’t say the condition must be life threatening or deteriorating. Obviously, if the condition was life threatening it would suggest someone needed immediate treatment. But making this a requirement elevates the standard. [22] The General Division relied on an irrelevant factor. The Claimant testified the NP told her that the MRI and neurologist referrals could take between two and six months to receive them. The General Division used this as part of the basis for finding the Claimant didn’t need medical treatment sooner. The test doesn’t require looking at whether referral timelines are met. [23] All of the factors the General Division relied on have issues. The General Division stated the correct test. But by imposing extra requirements, the General Division applied a more stringent version of the test. This is an error of law. [24] These same factors can also be considered errors of fact. The findings are based on irrelevant factors or assumptions the General Division made about what the Claimant should have done or what the NP meant. It isn’t necessary to consider other errors [25] I have found there is an error of law in the General Division decision. That means it isn’t necessary for me to consider other potential errors. Remedy [26] There is no suggestion by either party that they didn’t present all of their evidence to the General Division. This means I can give the decision that the General Division should have given. That includes deciding whether the Claimant is entitled to receive EI benefits.Footnote 18 The Claimant isn’t entitled to EI benefits because she was out of Canada and hasn’t shown she needed treatment that wasn’t readily or immediately available The Claimant hasn’t shown her condition required urgent treatment from a medical perspective [27] There isn’t enough objective medical evidence to show the Claimant needed immediate medical treatment that required leaving Canada. The Claimant argues that because her NP marked the MRI referral as “urgent”, it is enough to show that her medical treatment was urgently needed. So urgent that she needed to seek treatment outside of Canada. Respectfully, I disagree. [28] The Claimant has to prove the medical treatment was not readily or immediately available in Canada.Footnote 19 The Claimant believed she had to get more immediate treatment than she could in Canada. But the only evidence to support this, from a medical perspective, was the checked “urgent” box on an MRI referral form.Footnote 20 The Claimant argues that the MRI and neurologist referrals must be looked at together.Footnote 21 But since the neurologist referral doesn’t say anything about timing, that means that the MRI form is the totality of the objective evidence. The medical evidence must objectively show a person needs treatment without undue delay [29] The Claimant argues there should be a subjective element to the test.Footnote 22 The Claimant admitted there was no binding authority to support this. I disagree that there should be a subjective element to the test. Any patient is always going to want a medical test or treatment right away. What the patient is experiencing, subjectively, is of the utmost importance. But this can’t be part of the legal test. Those in healthcare are in a better position to look at the situation faced by the patient. So, they are better able to assess how serious the issue is. This means the test should remain objective. [30] The NP didn’t testify or provide any notes about the urgency of the Claimant’s condition. So, it is unknown if the NP accepted the referral timeframes as appropriate or not. The MRI form’s referral priorities didn’t give the NP a lot of options. The NP checked the only box available other than stat/today or routine. This, by itself, doesn’t show the Claimant’s medical condition required more immediate treatment than could be received in her area of residence. Put another way, a checked box on the MRI form isn’t enough to show what the medical perspective was.Footnote 23 [31] The NP’s referral to the neurologist was a longer request that included the Claimant’s history.Footnote 24 The NP notes the Claimant’s issue was long-standing. Despite a diagnosis of vestibular migraines and doing physiotherapy, no improvement was noted in six months.Footnote 25 There is nothing in this referral that says anything about urgency. [32] I appreciate the Claimant felt her condition was life-threatening.Footnote 26 Her family had contacts in the medical community in El Salvador. She believed she could get appointments more quickly there because she could pay for them.Footnote 27 She also said she wouldn’t have left Canada if she could have received immediate treatment in Canada.Footnote 28 [33] But this isn’t the test. The test isn’t comparing Canada’s wait times to another country to see which one is shorter. The test is whether, based on objective medical evidence, someone needed treatment that wasn’t readily or immediately available in their area of residence in Canada. [34] Unfortunately, the Claimant hasn’t proven, from a medical perspective, that her treatment was required without undue delay. Other than the Claimant’s beliefs, the checked box on an MRI form was the only other evidence. This, by itself, is simply not enough evidence. [35] This means the Claimant hasn’t shown she falls under the exception. She isn’t entitled to EI benefits when she was out of Canada from May 9, 2023, to June 15, 2023. [36] The other issue in the appeal is whether the Claimant was otherwise available for work from May 26, 2023, to June 7, 2023. I am not going to consider this. The otherwise available time is wholly encompassed within the time the Claimant was out of Canada. So, a decision on this issue would not impact the outcome of the case. Conclusion [37] The appeal is dismissed. [38] The General Division made an error of law. I have given the decision the General Division should have given. But the outcome remains the same. The Claimant isn’t entitled to EI benefits for the time she was out of Canada. Footnotes Footnote 1 Section 18(1)(b) of the Employment Insurance Act (EI Act) requires that someone seeking sickness benefits must show that “but for” the sickness they would be available for work. Footnote 2 See AD8-7 paragraph 20 of the Claimant’s submissions. Also, listen to the Appeal Division hearing recording at 01:28:33. Footnote 3 Section 58(1) of the Department of Employment and Social Development Act (DESD Act) sets out the grounds of appeal. Footnote 4 See AD7-5. Footnote 5 The Claimant left Canada on May 8, 2023 and returned on June 16, 2023, but Canada (Attorney General) v Picard, 2014 FCA 46 says a period is calculated by looking at a complete 24-hour period as one day. So, for benefit purposes she was out of Canada from May 9, 2023 to June 15, 2023. Footnote 6 See section 37 of the Employment Insurance Act and see the General Division decision at paragraphs 10 and 11. Footnote 7 See section 55 of the Employment Insurance Regulations. Footnote 8 This exception is in section 55(1)(a) of the Employment Insurance Regulations. Footnote 9 This was during the Claimant’s visit to the NP on April 24, 2023. Footnote 10 Listen to the General Division hearing recording at 00:44:37 and 00:45:04. Footnote 11 See Canada Employment Insurance Commission v A.G., 2022 SST 226. Footnote 12 See Canada Employment Insurance Commission v A.G., 2022 SST 226 at paragraph 49. Footnote 13 See Canada Employment Insurance Commission v A.G., 2022 SST 226 at paragraph 57, 58 and 61. Footnote 14 Listen to the General Division hearing recording at 01:18:00. See the Commission’s submissions at AD7-5. See also the Claimant’s submissions at GD3-24 and AD1-25. Footnote 15 See AD8-6 paragraph 16 of the Claimant’s Submissions. See also the Commission’s submissions AD7-5. Footnote 16 See the General Division decision at paragraph 40. Footnote 17 See GD3-83, a copy of the completed MRI referral form. Footnote 18 Section 59(1) of the Department of Employment and Social Development Act allows me to fix the General Division’s errors in this way. Footnote 19 See Canada (Attorney General) v Peterson, A-370-95 (Federal Court of Appeal). Footnote 20 Listen to the Appeal Division hearing recording at 01:22:35 and 01:26:29. Footnote 21 Listen to the Appeal Division hearing recording at 01:12:10. Footnote 22 Listen to the Appeal Division hearing recording at 00:47:29. Footnote 23 See AD8-7 at paragraph 20 where the Claimant notes that just because the NP didn’t mark “stat/today” shouldn’t be determinative. Footnote 24 See GD3-80 to GD3-82, the NP’s referral to the neurologist. Footnote 25 See GD3-80 the NP’s explanation of the Claimant’s condition to the neurologist. Footnote 26 Listen to the General Division hearing recording at 00:36:24. Footnote 27 Listen to the General Division hearing recording at 00:45:04. Footnote 28 Listen to the General Division hearing recording at 01:01:02.