E. B. v. Canada Employment Insurance Commission

Institution:
Social Security Tribunal decision - Appeal Division
Member:
Pierre Lafontaine
Hearing date:
December 21, 2017
Hearing type:
N/A
Between:
E. B. and Canada Employment Insurance Commission
Decision:
Appeal dismissed
Decision date:
January 5, 2018
Reference number:
AD-17-489
Citation:
E. B. v. Canada Employment Insurance Commission, 2018 SST 18

Other decision(s) related to this appeal:

Decision and Reasons

Decision

[1] The appeal is dismissed.

Introduction

[2] On June 26, 2017, the General Division of the Social Security Tribunal of Canada found that the disentitlement imposed on the Appellant pursuant to sections 9 and 11 of the Employment Insurance Act (Act) and section 31 of the Employment Insurance Regulations (Regulations) was justified.

[3] On July 10, 2017, the Appellant filed an application for leave to appeal to the Appeal Division. Leave to appeal was granted on August 1, 2017.

Type of hearing

[4] The Tribunal determined that the appeal would be heard by teleconference for the following reasons:

[5] The Appellant attended the hearing. The Respondent did not attend the hearing, despite receiving the notice of hearing.

The law

[6] Subsection 58(1) of the Department of Employment and Social Development Act (DESD Act) states that the only grounds of appeal are the following:

  1. a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
  2. b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
  3. 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.

Issue

[7] The Tribunal must determine whether the General Division erred when it found that the disentitlement imposed on the Appellant under sections 9 and 11 of the Act and section 31 of the Regulations was justified.

Standards of review

[8] The Federal Court of Appeal determined that the Appeal Division’s mandate is conferred on it by sections 55 to 69 of the DESD Act. The Appeal Division cannot exercise the review and superintending powers reserved for higher courts—Canada (Attorney General) v. Jean, 2015 FCA 242; Maunder v. Canada (Attorney General), 2015 FCA 274.

[9] As a result, unless the General Division failed to observe a principle of natural justice, erred in law, or 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, the Tribunal must dismiss the appeal.

Analysis

[10] The period in question is the weeks of November 8 and November 15, 2015. It is important to note that the issue before the General Division concerned the Appellant’s unemployment status only.

[11] The Appellant argues in his application for leave to appeal that the General Division erred in its application of the unemployment-status provisions because it did not account for the material before it, particuarly concerning his job search. The Appellant submits that, if the General Division had accounted for his evidence, it would have found that his union activities were secondary.

[12] The Appellant testified before the General Division that he was indeed unemployed. He had been laid off by his employer and was looking for a new job. He was available to work. He mentioned his union involvement in the interest of honesty and made a serious error by declaring a full week’s work when, in actual fact, he devoted just a few hours a week to the union.

[13] The Tribunal notes that the General Division assigned no credibility to the Appellant’s version that was presented during the hearing because it mentioned the following:

[translation]

[35] [...] the Tribunal gives little weight to the new version of the facts the Appellant presented after the fact at the hearing and that could have been offered in an attempt to position him in a better light following the Commission’s unfavourable decision. The Tribunals notes that the Appellant told the Commission on more than one occasion that he was devoting entire weeks to union business. The Appellant maintained the same version of events on November 28, 2015, November 23, 2015, and November 24, 2015. The Tribunal finds that the initial version of the truth was more spontaneous and was repeated during two conversations with the Commission during the actual weeks in question. It is therefore more credible. Accordingly, the Tribunal grants significant weight to the Appellant’s three statements to the Commission before the latter rendered its unfavourable decision on November 24, 2015.

[14] The Appellant did state in his initial interview on November 18, 2015, that, from November 8 to December 7, 2015, he served on the employer’s parity committee and participated in the collective agreement negotiation and the disciplinary and grievance investigations. He had filed a grievance so that the employer would pay him for his union activities (GD3-15).

[15] The Appellant called the Respondent on November 23, 2015, to state that he had stopped his union activities on November 21, 2015 (GD3-15).

[16] In a later interview on November 24, 2015, the Appellant confirmed that from November 8 to November 21, 2015, he performed union activities for an entire week and that he had filed a grievance so that his employer would pay him (GD3-16).

[17] In support of his request for reconsideration, the Appellant stated on December 29, 2015, that he considered himself on leave for union business from November 1 to 21, 2015, and that he had filed a grievance so his employer would pay him (Exhibit GD3-21).

[18] The Tribunal finds that the General Division rightly gave more weight to the Appellant’s initial, spontaneous statements attesting to full-time union involvement because it is the version the Appellant held to on November 18, 23, and 24, 2015, before the Respondent’s unfavourable decision.

[19] For quite some time, case law has consistently stated that, unless there are particular circumstances that are obvious, the issue of credibility must be left to the discretion of the General Division, which is better able to decide on the matter. The Tribunal will intervene only if it is obvious that the General Division’s decision on the issue is unreasonable, in light of the evidence before it.

[20] The Tribunal does not find any reason to intervene in this case on the issue of credibility as assessed by the General Division.

[21] As the General Division found, the preponderant evidence indicates that the Appellant focused mainly on his union activities and that he was not unemployed between November 1 and 21, 2015, in accordance with sections 9 and 11 of the Act and section 31 of the Regulations.

[22] The Tribunal therefore finds that the General Division considered the Appellant’s arguments, that its decision was made based on the evidence before it, and that this decision complies with both legislation and jurisprudence.

[23] For the above-mentioned reasons, it is appropriate to dismiss the appeal.

Conclusion

[24] The appeal is dismissed.

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