Simon's Megalomaniacal Legal Resources

Employment Insurance - Appeals

. Page v. Canada (Attorney General)

In Page v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal heard a JR challenging (and reversing) an EI 'availability for work' ruling of the Appeal Division of the SST (thus reinstating the General Division ruling of the SST).

In these quotes the court briefly summarizes the extended appeal route for EI decisions:

[16] In terms of administration, the EIA provides for initial decisions by the Commission, an internal reconsideration by the Commission (section 112 of the EIA), and an appeal to the Social Security Tribunal (section 113 of the EIA).

[17] The Social Security Tribunal is established under the DESDA. It consists of a General Division, which is subdivided into an Income Security Section and an Employment Insurance Section, and an Appeal Division. Under section 54 of the DESDA, the General Division may dismiss an appeal; confirm, rescind or vary a decision of the Commission, in whole or in part; or may give any decision that the Commission or Minister should have given. The General Division therefore conducts a de novo inquiry into a matter and may (and often does) hold hearings during which evidence, including oral testimony, may be tendered.

[18] Subsection 58(1) of the DESDA provides for a limited right of appeal of General Division decisions in employment insurance matters to the Appeal Division and provides as follows:

Grounds of appeal — Employment Insurance Section

58 (1) The only grounds of appeal of a decision made by the Employment Insurance Section are that the Section

(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) erred in law in making its decision, whether or not the error appears on the face of the record; or

(c) 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.

[19] The limited authority of the Appeal Division to review factual determinations of the General Division in employment insurance matters is of central importance to this application, as will become apparent from the discussion that follows.

. Canada (Attorney General) v. Hull

In Canada (Attorney General) v. Hull (Fed CA, 2022) the Federal Court of Appeal explained the employment insurance appeal system:

[15] Appeals of the General Division are brought to the Appeal Division, on leave being granted. Subsection 58(1) of the Department of Employment and Social Development Act, S.C. 2005, c. 34 (the DESD Act) sets out the grounds of appeal that allow the Appeal Division to interfere with the decision of the General Division. The Appeal Division must be satisfied that the General Division: (1) failed to observe a principle of natural justice or acted beyond or refused to exercise its jurisdiction; (2) erred in law in making its decision; or (3) 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 only errors alleged by the Commission before the Appeal Division were that the General Division erred in law or exceeded its jurisdiction. Before this Court, the Commission (represented by the Attorney General of Canada) focuses its argument on errors of law made by the General Division and the Appeal Division, rendering the Appeal Division’s decision unreasonable.

[16] Therefore, this being a reasonableness review of the Appeal Division’s decision, the issue is whether it was reasonable for the Appeal Division to conclude that the General Division had not erred in law in its statutory interpretation of subsections 23(1.1) and 23(1.2) of the EI Act. Here, the question of "“what is the election contemplated by subsection 23(1.1) of the EI Act”" is a question of law.