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EI - CRA Rulings. Chen v. Canada (Attorney General)
In Chen v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, this from a dismissed JR of "a decision of the Social Security Tribunal (Tribunal) [which] ... dismissed the appellant’s request for leave to appeal a decision of the General Division, which determined it had no jurisdiction to deviate from the Canada Revenue Agency’s (CRA) ruling that Mr. Chen was not eligible for employment insurance and benefits":[2] ... during the course of the proceedings before the General Division, the Tribunal member asked the Canadian Employment Insurance Commission (Commission) to seek a ruling from the CRA on the question of whether the appellant was an employee with insurable earnings. The CRA found that the appellant was neither an employee nor self-employed within the meaning of subsection 152.01(1) of the Employment Insurance Act, S.C. 1996, c. 23 (EIA). On the basis of that ruling under section 90 of the EIA, the General Division dismissed the appeal of the Commission’s refusal.
[3] On appeal, the Appeal Division concluded that Mr. Chen had not received a fair hearing and remitted the matter back to the General Division for reconsideration.
[4] On reconsideration, the General Division held that it was bound by the CRA’s decision on whether Mr. Chen had insurable employment. Citing Attorney General of Canada v. Romano 2008 FCA 117, the General Division noted that Mr. Chen’s only recourse was to appeal the CRA’s insurability decision to the CRA. Mr. Chen did not appeal.
[5] Mr. Chen sought leave to appeal the General Division’s decision. The Appeal Division denied this request on the basis that Mr. Chen’s appeal had no chance of success.
[6] The Federal Court concluded that the Appeal Division’s decision to dismiss the application for leave to appeal was reasonable and dismissed the application for judicial review. We agree with the analysis of O’Reilly J. I would dismiss this appeal for substantially the same reasons given by the Federal Court judge.
[7] The essence of the appellant’s appeal is that the General Division incorrectly concluded that it had jurisdiction to request that the Commission seek a ruling from the CRA. He argued that the Commission could do so only on its own initiative, not in response to a request from the General Division. However, as the Federal Court judge noted, there are no restrictions on when or how a CRA ruling is sought, and the Commission can ask for a ruling "“at any time”" (Chen, at para. 13 citing the EIA, ss. 90(1-2), 90.1). Only the CRA can determine a claimant’s hours of insurable employment under subsection 90(1) of the EIA. Similarly, subsection 64(3) of the Department of Employment and Social Development Act, S.C. 2005, c. 23 provides that all questions of employment insurability arising in an application or appeal before the Tribunal must be resolved by an authorized CRA officer. Insurability rulings may be appealed to the Minister of National Revenue (Minister), and subsequently to the Tax Court of Canada (EIA, ss. 91, 103(1)).
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