M. R. v. Canada Employment Insurance Commission
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- Social Security Tribunal decision - Appeal Division - Application for Leave to Appeal
- Pierre Lafontaine
- Hearing date:
- Hearing type:
- M. R. and Canada Employment Insurance Commission
- Application for leave to appeal is granted
- Decision date:
- February 11, 2015
- Reference number:
- M. R. v. Canada Employment Insurance Commission, 2015 SSTAD 195
Other decision(s) related to this appeal:
 The Tribunal grants leave to appeal to the Appeal Division of the Social Security Tribunal.
 On July 18, 2014, the Tribunal’s General Division found that:
- - The disentitlement imposed under paragraph 18(a) of the Employment Insurance Act (“the Act”) was justified because the Applicant had not proved that he was available for work while taking a full‑time training course.
 The Applicant filed an application for leave to appeal to the Appeal Division on August 18, 2014.
 The Tribunal must determine whether the appeal has a reasonable chance of success.
 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”.
 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”.
 Under subsection 58(1) of the Department of Employment and Social Development Act, the only grounds of appeal are that:
- (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 or order, whether or not the error appears on the face of the record; or
- (c) the General Division 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.
 An application for leave to appeal 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 hearing of the appeal on the merits. At the application for leave to appeal stage, the Applicant does not have to prove his case.
 The Tribunal will grant leave to appeal if the Applicant shows that any of the above grounds of appeal has a reasonable chance of success.
 To do so, the Tribunal must, in accordance with subsection 58(1) of the Department of Employment and Social Development Act, be able to see a question of law, fact or jurisdiction the answer to which may lead to the setting aside of the decision attacked.
 In light of the foregoing, does the Applicant’s appeal have a reasonable chance of success?
 The Applicant submits that the General Division made a decision that was inconsistent with the evidence concerning his desire to return to the labour market.
 He also argues that the General Division erred in imposing a burden greater than what is required by the new provisions defining what constitutes “suitable employment” (sections 9.002 et seq. of the Employment Insurance Regulations) and that it therefore erred in law in interpreting those provisions in relation to section 18 of the Act.
 He submits that the General Division failed to explain what evidence supported its finding that he had set personal conditions that might unduly limit his chances of returning to the labour market.
 The Applicant further submits that the General Division did not give enough weight to the evidence showing that he was capable of working full time and studying full time.
 Finally, he argues, the General Division erred in law in disregarding the cases submitted by him, particularly the Umpire’s decisions included in Exhibits GD5·9 and GDS‑12, which note, relying on the Federal Court of Appeal’s decision in Carpentier (A‑474‑97), that it is well established in the case law that claimants who can reasonably expect to be called back to work can be excused from the obligation to show that they are actively seeking employment, at least for a reasonable period of time.
 After reviewing the appeal file, the General Division’s decision and the arguments in support of the application for leave to appeal, the Tribunal finds that the appeal has a reasonable chance of success. The Applicant has raised several questions of fact and law the answers to which may lead to the setting aside of the decision challenged.
 The Tribunal grants an extension of time for leave to appeal but refuses leave to appeal to the Appeal Division of the Social Security Tribunal.
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