R. N. v. Canada Employment Insurance Commission
- Social Security Tribunal decision - Appeal Division
- Pierre Lafontaine
- Hearing date:
- Hearing type:
- R. N. and Canada Employment Insurance Commission
- Application for leave to appeal is refused
- Decision date:
- June 19, 2015
- Reference number:
- R. N. v. Canada Employment Insurance Commission, 2015 SSTAD 765
 The Tribunal refuses leave to appeal to the Appeal Division of the Social Security Tribunal.
 On April 16, 2015, the Tribunal’s General Division found that:
- - The Applicant did not have a sufficient number of hours of insurable employment to be entitled to employment insurance benefits under section 7 of the Employment Insurance Act (“the Act”);
- - The imposition of a penalty was justified under section 38 of the Act;
- - The issuance of a notice of violation was justified under section 7.1 of the Act.
 The Applicant filed an application for leave to appeal to the Appeal Division on May 19, 2015.
 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 it is satisfied 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?
 In his application for leave to appeal, the Applicant states that he never committed fraud and that he did not know about the hours. He argues that he has no shares in his spouse’s company.
 The Tribunal notes that the Applicant is basically just repeating before the Appeal Division what was already put before the General Division. Unfortunately, an appeal to the Appeal Division is not an appeal in which there is a de novo hearing, that is, a hearing where a party can present his or her evidence again and hope for a favourable decision.
 It is not up to the Member who has to determine whether to grant leave to appeal to reweigh and reassess the evidence submitted before the General Division.
 Since no question of law, fact or jurisdiction the answer to which may lead to the setting aside of the decision attacked has been raised, the Tribunal has no choice but to conclude that the appeal has no reasonable chance of success.
 Leave to appeal is refused.
- Date modified: