Y. T. v. Canada Employment Insurance Commission

Y. T. v. Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2016-10-26 Neutral citation 2016 SSTADEI 530 Reference number AD-16-772, AD-16-774, AD-16-776 Member Shu-Tai Cheng Division Appeal Division Decision Application for leave to appeal granted Related decisions SST - Y. T. v. Canada Employment Insurance Commission - 2017 SSTADEI 122 - 2017-03-27 - Appeal Division Decision Content On this page Introduction Background information Issue The law and analysis Conclusion Reasons and decision Introduction [1] On April 29, 2016, the Tribunal's General Division found that the Applicant failed to prove that he was unemployed within the meaning of sections 9 and 11 of the Employment Insurance Act (Act) and of section 30 of the Employment Insurance Regulations (Regulations), and that the disentitlement imposed by the Commission (Respondent) was justified. [2] On April 29, 2016, the Applicant was notified of the General Division's decision via letter from the Tribunal. [3] On June 2, 2016, the Applicant filed an application for leave to appeal (Application) before the Tribunal's Appeal Division. The Tribunal received the Application within the time limit. Background information [4] There are three files at issue: The Applicant filed a claim for Employment Insurance benefits in August 2011. The benefits became effective on July 17, 2011. In April 2015, the Commission informed the Applicant that it had received new information and that it re-examined the claim for benefits beginning on July 17, 2011, and that it believed that one or several false or misleading statements were made—he had failed to report his self-employment, amongst other things. Therefore, a notice of decision informed the Applicant that the Commission could not pay him benefits as of July 17, 2011, because he operated a business and was thus not unemployed. In August 2011, the Applicant established a claim effective July 25, 2012. In April 2015, the Commission informed the Applicant that it could not pay him benefits as of July 8, 2012, because he operated a business and was thus not unemployed. In July 2010, the Applicant established a claim effective July 11, 2010. In April 2015, the Commission informed the Applicant that it could not pay him benefits as of September 12, 2010, because he operated a business and was thus not unemployed. [5] On May 20, 2015, the Applicant requested a reconsideration of the three decisions. On October 25, 2015, in its notice of decisions following an administrative review, the Commission did not modify the decisions at issue. On November 20, 2015, the Applicant filed an appeal before the Tribunal's General Division. [6] Upon receiving the General Division's decision, the Applicant submitted his Application to the Appeal Division. [7] On June 22, 2016, the Tribunal informed the Applicant that it was missing information that was essential to his Application. [8] Via letter from his new representative, the Applicant completed the grounds requested in the Application. Issue [9] Does the appeal have a reasonable chance of success? The law and analysis [10] In accordance with subsections 56(1) and 58(3) of the Department of Employment and Social Development Act (DESD 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”. [11] Subsection 58(2) of the DESD Act provides that “leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.” [12] Subsection 58(1) of the DESD Act states that the only grounds of appeal 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. [13] A leave to appeal proceeding is a preliminary step to a hearing on the merits. It is a first, and lower, hurdle for the Applicant to meet than the one that must be met on the appeal on the merits. At the leave stage, the Applicant does not have to prove the case. [14] The Tribunal will grant leave to appeal if any of the above grounds of appeal has a reasonable chance of success. [15] This means that the Tribunal must be in a position to determine, in accordance with subsection 58(1) of the DESD Act, whether there is an error of law, fact or jurisdiction in a General Division decision that might justify setting aside the decision under review. [16] The Applicant pointed out that: The General Division decision did not indicate how the Commission supported its assessment that the Applicant made a false representation within the meaning of subsection 53(2) of the Act, and this omission itself constitutes a refusal to exercise its jurisdiction. The decision was based on an error in law committed by stating only six criteria (plus two criteria) and by failing to conclude that [translation] "if the Claimant's involvement in his business is minor in extent", as stipulated in subsection 30(2) of the Regulations. The decision contains many errors of mixed fact and law with regard to the assessment of the evidence, such as: The analysis of the Applicant's business income statement and investment; The Applicant's main source of income; The notion of availability and the burden of proof of willingness to accept another job; The notion of a business' net earnings. [17] The General Division determined that the Applicant failed to meet these two essential conditions—time spent and the intention and willingness of the claimant to seek and immediately accept alternate employment—and that he was therefore [translation] "not unemployed and not entitled to benefits in accordance with section 9 of the Act." The decision also noted that when a claimant operates a business, it is up to the claimant to rebut the presumption that he was working a full working week, and found that the Applicant did not prove that he was unemployed. [18] Although the General Division had cited subsection 52(2) of the Act with regard to a false or misleading statement, it seems that it failed to analyse the issue. [19] The General Division cited subsection 30(2) of the Regulations (if operating a business is minor in extent...) and it referred to Federal Court of Appeal case law. The General Division assessed the [translation] "six criteria" and found that the Applicant failed to prove that he was unemployed. The Applicant maintains that the analysis was insufficient and was based on several errors in weighing the evidence. [20] Under these circumstances, the question of whether the General Division based its decision on errors of law or on errors of mixed fact and law should be considered. [21] The appeal has a reasonable chance of success. [22] I would like to point out, however, that an appeal to the Appeal Division is not a de novo hearing, but an appeal under sections 59 and 59 of the Act. Conclusion [23] Leave to appeal is granted. [24] This decision granting leave to appeal does not presume the result of the appeal on the merits of the case. [25] I invite the parties to make submissions on the following questions: whether a hearing is appropriate and, if so, the form of hearing; and the merits of the appeal.