Docket: T-1198-15
Citation:
2016 FC 885
[ENGLISH TRANSLATION]
Montréal, Quebec, July 29, 2016
PRESENT: The Honourable
Mr. Justice Locke
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BETWEEN:
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HAMID NADJI
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision by the Appeal Division of the Social Security Tribunal [Appeal
Division], dated June 19, 2015, in which he was refused leave to
appeal a decision by the General Division of the Social Security Tribunal
[General Division].
[2]
For the reasons that follow, I am dismissing the
application for judicial review.
[3]
Without repeating the facts outlined in the
General Division’s decision, and which do not appear to be disputed, I believe
that the Appeal Division’s decision is entirely reasonable.
[4]
The Appeal Division correctly pointed out the
requirement whereby the applicant must obtain its leave before appealing the
General Division’s decision. The Appeal Division also correctly identified the
criteria for obtaining this leave: leave to appeal is refused if the Appeal
Division is satisfied that the appeal has no reasonable chance of success (in
accordance with subsection 58(2) of the Department of Employment and
Social Development Act, SC 2005, c 34 [the DESDA]).
[5]
The Appeal Division also correctly identified
the only grounds of appeal which apply. Based on subsection 58(1) of the
DESDA:
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Grounds of appeal
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Moyens d’appel
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58 (1) The only grounds of appeal are
that
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58 (1)
Les seuls moyens d’appel sont les suivants :
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(a) the General Division failed to observe a principle of natural
justice or otherwise acted beyond or refused to exercise its jurisdiction;
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a) la division générale n’a pas observé un principe de justice
naturelle ou a autrement excédé ou refusé d’exercer sa compétence;
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(b) the General Division erred in law in making its decision,
whether or not the error appears on the face of the record; or
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b) elle a rendu une décision entachée d’une erreur de droit, que
l’erreur ressorte ou non à la lecture du dossier;
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(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.
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c) elle a fondé sa décision sur une conclusion de fait erronée,
tirée de façon abusive ou arbitraire ou sans tenir compte des éléments portés
à sa connaissance.
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[6]
In my opinion, the Appeal Division considered
the applicant’s arguments in a reasonable manner.
[7]
The applicant focused his submissions on the
argument that he had been misled by the Canada Employment Insurance Commission
[the Commission] because the officer to whom he communicated his intention to
take full-time training did not notify him that the benefits entitlement period
would continue to lapse—in other words, it was not suspended—during training.
The applicant contends that, had he been informed of that fact, he would have
proceeded differently to avoid losing his benefits.
[8]
This argument had been put forth before the
General Division, which took it into consideration. However, the General
Division rendered its decision based on the criteria set out in
paragraph 18(1)(a) of the Employment Insurance Act,
SC 1996, c 23:
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Availability for work, etc.
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Disponibilité, maladie, blessure, etc.
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18 (1) A claimant is not entitled to
be paid benefits for a working day in a benefit period for which the claimant
fails to prove that on that day the claimant was
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18 (1)
Le prestataire n’est pas admissible au bénéfice des prestations pour tout
jour ouvrable d’une période de prestations pour lequel il ne peut prouver
qu’il était, ce jour-là :
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(a) capable of and available for work and unable to obtain
suitable employment;
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a) soit capable de travailler et disponible à cette fin et
incapable d’obtenir un emploi convenable;
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[9]
The Federal Court of Appeal’s decision in Faucher
v. Canada (Employment and Immigration), [1997] FCJ No. 215 (QL),
at paragraph 3, outlined three factors to analyze for determining
availability within the meaning of paragraph 18(1)(a): (i) the
desire to return to the labour market as soon as a suitable job is offered;
(ii) the expression of that desire through efforts to find a suitable job;
and (iii) not setting personal conditions that might unduly limit the
chances of returning to the labour market.
[10]
The General Division found that the second and
third factors (i.e. efforts to find a job and not setting personal conditions)
had not been satisfied. Moreover, the General Division found that none of the
exceptions to the availability requirement set out in paragraph 18(1)(a)
applied.
[11]
In my view, the Appeal Division acted reasonably
in relying on the findings of the General Division; they were not contested by
the applicant. Although the applicant claims that he was willing to abandon his
training had he been offered a job, that statement alone does not satisfy the
requirement of making efforts to find a job.
[12]
The Appeal Division could not see any reasonable
chance of establishing that the General Division had committed an error of
jurisdiction, law, or fact; nor could I.
[13]
I also agree with the observation by the General
Division that the Court cannot decide cases on the basis that a party might
have been misled about benefits, and cannot refuse to apply the law, even on
the grounds of equity: Canada (Attorney General) v. Alaie,
2003 FCA 416; Wegener v. Canada (Attorney General),
2011 FC 137, at paragraph 11.
[14]
The applicant is asking me to go beyond the
applicable laws to do him justice. In addition to the fact that I must comply
with the laws, I do not agree that it is just to give the applicant what he is
asking. In my opinion, the Commission’s officers cannot be expected to know
that the applicant absolutely did not want to lose his benefit weeks that he
lost by taking his training. If the factor had been so important to the
applicant, he should have asked precise questions in this regard.
[15]
During the hearing, the respondent asked that I
award costs against the applicant due to the (i) abusive nature of his
application, and (ii) his being late on the day of the hearing. I will not
award costs because (i) the respondent did not request them in its
memorandum, and (ii) although the applicant was late, the hearing ended
well before the expected time.
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