Docket: T-124-16
Citation:
2016 FC 874
Ottawa, Ontario, July 26, 2016
PRESENT: The
Honourable Mr. Justice Boswell
|
BETWEEN:
|
|
SEAN GRIFFIN
|
|
Applicant
|
|
and
|
|
ATTORNEY
GENERAL OF CANADA
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
The Applicant, Sean Griffin, who represents
himself in this proceeding, has brought this application for judicial review of
a decision of the Appeal Division of the Social Security Tribunal. In its
decision dated December 22, 2015, the Appeal Division denied Mr. Griffin’s
request for leave to appeal a decision of the General Division of the Social
Security Tribunal on the basis that the appeal did not disclose a proper ground
of appeal and lacked any reasonable chance of success. The Applicant now
requests, in effect, that this Court review the Appeal Division’s decision, set
it aside, and return the matter to another panel of the Appeal Division for
redetermination.
I.
Background
[2]
On September 29, 2014, Mr. Griffin began working
for BDC Bull Dozer Construction Ltd. Although the matter was never discussed
directly, Mr. Griffin had assumed that BDC would provide him with
accommodations for the duration of his employment, as BDC had done this for him
in the past and he believed that BDC did so for all employees not already
residing in Red Deer, Alberta (the location of the work site). After he was
hired, Mr. Griffin proceeded to check into the hotel where BDC was housing a
number of its other employees.
[3]
On October 1, 2014, Mr. Griffin approached his
employer about paying for his accommodations. Mr. Griffin’s employer stated
that it would not be covering his accommodations because it was under the
impression that Mr. Griffin was already residing in Red Deer with his mother.
Mr. Griffin responded that he would not be able to continue working for BDC if
his accommodations were not paid for since he could not afford to pay for the
hotel room himself. Consequently, on October 1, 2014, Mr. Griffin voluntarily
left his employment with BDC.
[4]
In his October 15, 2014 report to Service
Canada, Mr. Griffin did not include his employment with BDC. Consequently, Mr.
Griffin continued to receive the EI benefits which he had been receiving since
June of 2014.
[5]
On January 8, 2015, the Canada Employment
Insurance Commission contacted Mr. Griffin about the reason he ceased his
employment with BDC. Mr. Griffin stated that he left because he could not
afford to pay for his accommodations, and that he was therefore forced to leave
the position when his employer refused to pay for it. Nevertheless, on January
29, 2015, the Commission determined that Mr. Griffin had left his employment
with BDC without just cause and imposed an indefinite disqualification from
receiving EI benefits, as well as a penalty for receiving ineligible benefits
and not reporting his employment with BDC.
[6]
In March 2015, Mr. Griffin requested a
reconsideration of the Commission’s decision. This request was denied on April
21, 2015. Accordingly, Mr. Griffin appealed this denial to the General Division
of the Social Security Tribunal. In a decision dated September 18, 2015, the
General Division upheld the Commission’s decision, finding that Mr. Griffin had
left his employment without just cause. In due course, the Applicant filed an
application requesting leave to appeal the General Division’s decision to the
Appeal Division.
II.
The Appeal Division’s Decision
[7]
In its decision refusing Mr. Griffin’s application
for leave to appeal, the Appeal Division determined that subsection 58(1) of
the Department of Employment and Social Development Act, S.C. 2005, c. 34
[Act], allows for a decision of the General Division to be appealed only
where:
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, whether or
not the error appears on the face of the record; or
c)
the General Division based its decision on
erroneous findings of fact made in a perverse or capricious manner, or without
regard to the evidence before it.
[8]
The Appeal Division further determined that
leave to appeal is to be refused if the appeal has “no
reasonable chance of success.”
[9]
The Appeal Division found that the Applicant was
essentially asking the Appeal Division to re-weigh the evidence presented to
the General Division and come to a different conclusion, stating as follows:
[8] The role of the Appeal Division
is to determine if a reviewable error set out in ss. 58(1) of the Act
has been made by the General Division and if so to provide a remedy for that
error. In the absence of such a reviewable error, the law does not permit the
Appeal Division to intervene. It is not our role to re-hear the case de
novo.
[9] It is not sufficient for an
Applicant to plead that the General Division member was mistaken in his or her
conclusions and ask the Appeal Division for a different outcome. In order to
have a reasonable chance of success, the Applicant must explain in some detail
how, in their view, at least one reviewable error set out in the Act has
been made. Having failed to do so, this application for leave to appeal does
not have a reasonable chance of success and must be refused.
III.
Issues
[10]
Although the Applicant does not precisely
identify any specific issues in his submissions, his application does request
that his case be heard again and re-examined with additional information about
why he left his job with BDC. He also contends that the General Division failed
to observe a principle of natural justice and acted beyond or failed to
exercise its jurisdiction. The Court therefore presumes that the Applicant is
asserting that the Appeal Division’s decision denying his request for leave to
appeal is unreasonable.
[11]
The Respondent submits that the main issue is
whether it was reasonable for the Appeal Division to deny the Applicant’s
request for leave to appeal. I agree with the Respondent that the main issue is
whether the decision of the Appeal Division to deny leave to appeal was
reasonable.
[12]
In addition, there is a further issue which
requires the Court’s attention, and that is the additional or new evidence
which the Applicant purports to adduce in his affidavit.
IV.
Standard of Review
[13]
The applicable standard for this Court’s review
of a decision of the Appeal Division granting or denying leave to appeal a
decision of the General Division is that of reasonableness: see: Canada (Attorney
General) v. Hines, 2016 FC 112 at para 28, [2016] FCJ No 84; Canada (Attorney
General) v. Hoffman, 2015 FC 1348 at paras 26-27, [2015] FCJ No 1511; also
see: Tracey v Canada (Attorney General), 2015 FC 1300 at para 17, [2015]
FCJ No 1410 [Tracey].
[14]
This being so, the Appeal Division’s assessment
of the evidence is entitled to deference (see: Dunsmuir v New Brunswick,
2008 SCC 9 at para 53, [2008] 1 S.C.R. 190 [Dunsmuir]). The Court should
not interfere if the Appeal Division’s decision is intelligible, transparent,
and justifiable, and falls within a range of possible, acceptable outcomes
defensible in respect of the facts and the law (Dunsmuir at para 47).
Those criteria are met if “the reasons allow the
reviewing court to understand why the tribunal made its decision and permit it
to determine whether the conclusion is within the range of acceptable outcomes”:
Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at para 16, [2011] 3 S.C.R. 708. Moreover,
it is not up to this Court to reweigh the evidence that was before the Appeal
Division, and it is not the function of this Court to substitute its own view
of a preferable outcome: Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at paras 59 and 61, [2009] 1 S.C.R. 339.
V.
Mr. Griffin’s Affidavit and Additional Arguments
[15]
The Respondent submits that Mr. Griffin’s
affidavit introduces new evidence that was not before the Appeal Division
concerning his familial obligations, BDC’s health and safety practices, and his
own health at the time he left his employment. The Respondent states, in view
of Canada (Attorney General) v. Merrigan, 2004 FCA 253, 325 NR 294 , and
Ochapowace First Nation v. Canada (Attorney General), 2007 FC 920, 316
FTR 19, that the record on judicial review is restricted to the material that
was before the Appeal Division at the time its decision was made (also see: Association
of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency
(Access Copyright), 2012 FCA 22 at para. 19, 428 NR 297). According to the
Respondent, Mr. Griffin’s attempt to introduce new evidence is improper and
should not be considered by the Court.
[16]
I agree. The evidence as to Mr. Griffin’s
familial obligations, BDC’s health and safety practices, and his own health was
not before the Appeal Division and, accordingly, cannot be and has not been
considered by the Court in reviewing the reasonableness of the Appeal Division’s
decision.
[17]
I also agree with the Respondent that the Court
should not consider Mr. Griffin’s argument that the Court should issue a
declaration that any amount he owes to the Commission should be written off.
This issue is not properly before the Court because Mr. Griffin did not request
such relief from the Commission and the issue does not form part of the Appeal
Division’s decision.
VI.
Is the Appeal Division’s Decision Reasonable?
[18]
Mr. Griffin contends that he had just cause to leave
his employment with BDC because he had no other alternative to doing so.
Specifically, Mr. Griffin argues he could not remain in his employment because
he could not afford to pay for accommodations in Red Deer for the duration of
his employment. Mr. Griffin says his belief that he had no alternative but to
leave his position is sufficient to establish that he had just cause for ending
his employment. Mr. Griffin also contends that the Appeal Division failed to
consider all the evidence in relation to the quantum of the penalty imposed on
him, and that he should not be forced to repay the benefits he received because
repayment would cause him undue hardship.
[19]
The Respondent submits that, pursuant to
subsection 58(1) of the Act, the Appeal Division may only grant leave to
appeal a decision of the General Division where it is satisfied that an appellant
has a reasonable chance of success based on one or more of the grounds of
appeal listed in subsection 58(1). According to the Respondent, it was entirely
reasonable for the Appeal Division to find that Mr. Griffin failed to establish
that his appeal had a reasonable chance of success on any of the three
enumerated grounds of appeal. The Respondent argues that Mr. Griffin simply
disagrees with the General Division’s decision which, in the Respondent’s view,
is not sufficient for the Appeal Division to grant leave pursuant to subsection
58(1) of the Act. Accordingly, the Respondent submits that the Appeal
Division’s decision was reasonable and that this application for judicial
review should be dismissed.
[20]
It is well established that the party seeking
leave to appeal bears the onus of adducing all of the evidence and arguments
required to meet the requirements of subsection 58(1): see, e.g., Tracey,
above, at para 31; also see Auch v. Canada (Attorney General), 2016 FC
199 at para 52, [2016] FCJ No 155. Nevertheless, the requirements of subsection
58(1) should not be applied mechanically or in a perfunctory manner. On the
contrary, the Appeal Division should review the underlying record and determine
whether the decision failed to properly account for any of the evidence: Karadeolian
v. Canada (Attorney General), 2016 FC 615 at para 10, [2016] FCJ No 615.
[21]
In this case, Mr. Griffin’s sole argument for
granting leave to appeal was that the General Division had erred in its
assessment of the facts. However, Mr. Griffin does not identify or point to any
evidence he presented that the General Division failed to consider, nor does he
provide any basis on which it can be said that the General Division’s findings
were capricious or perverse, or that its decision was rendered in a
procedurally unfair manner. Mr. Griffin simply disagrees with the General
Division’s findings. In my view, this does not disclose a valid ground of
appeal under subsection 58(1) of the Act.
[22]
In short, because Mr. Griffin failed to establish
any of the grounds of appeal specified in subsection 58(1), the Act
necessitated that his appeal be refused. As such, the Appeal Division’s
decision to such effect was reasonable.
[23]
In essence, Mr. Griffin asks this Court to
perform the same task he requested of the Appeal Division: to reweigh the
evidence that was before the General Division and come to a different
conclusion. However, as noted above, that is not the proper role of this Court
on judicial review – on judicial review it is not the place of this Court to
reweigh the evidence that was before the Appeal Division and come to its own
conclusion.
VII.
Conclusions
[24]
In conclusion, the Appeal Division’s decision
was reasonable and, accordingly, Mr. Griffin’s application for judicial review
is dismissed.
[25]
Having regard to all of the circumstances of
this case, and the Respondent’s position that it is not seeking costs, no costs
shall be awarded.
Email this Content