Docket: T-1148-15
Citation:
2016 FC 114
Toronto, Ontario, February 2, 2016
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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PATTAMESTRIGE
PERERA
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
Mr. Perera seeks judicial review of a decision
of the Appeal Division of the Social Security Tribunal [Appeal Division]
denying him leave to appeal a decision of the Board of Referees [Board]. The
Board found that Mr. Perera had been employed in the operation of a business
while he was collecting employment insurance benefits, and he was therefore required
to repay those benefits.
[2]
On December 26, 2008, Mr. Perera’s employment
came to an end. He applied for regular employment insurance benefits. His
claim was found to have been established as of December 28, 2008, and, save for
a two-week waiting period, he received benefits from that point until July 25,
2009, when he was re-hired by his former employer.
[3]
On February 4, 2009, the applicant began
operating a business called Extreme Health Rehab Clinic Inc. Tax information
for the period from February 4, 2009, to April 30, 2009, shows that the
business had total assets of $58,198 and owed Mr. Perera $38,682. He did not
receive any income from the business during the period when he was receiving
employment insurance benefits but was put on the business’ payroll in October
of 2009. Moreover, during the period he was in receipt of employment insurance
benefits, it is agreed that the business was in start-up mode and not selling
its services.
[4]
On June 20, 2012, the Canada Employment
Insurance Commission [Commission] found that Mr. Perera was engaged in the
operation of his business as of February 4, 2009, and therefore was disentitled
to employment insurance benefits as of that time. As a result, an overpayment
of $9,988 was created.
[5]
On May 22, 2013, the Board dismissed Mr.
Perera’s appeal of the Commission’s decision. It held that the only issue was
whether Mr. Perera was disentitled to employment benefits because of his
failure to prove that he was unemployed between February 4, 2009, and July 25,
2009. This issue turned on whether he was engaged full-time in the operation
of his business pursuant to subsection 30(1) of the Employment Insurance
Regulations, SOR/96-332, or whether his involvement was so minor that he
was not engaged full-time, pursuant to subsection 30(2).
[6]
Those statutory provisions provide as follows:
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30 (1) Subject to subsections (2) and (4), where during any week a
claimant is self-employed or engaged in the operation of a business on the
claimant's own account or in a partnership or co-adventure, or is employed in
any other employment in which the claimant controls their working hours, the
claimant is considered to have worked a full working week during that week.
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30 (1) Sous réserve des paragraphes (2) et (4), le prestataire est
considéré comme ayant effectué une semaine entière de travail lorsque, durant
la semaine, il exerce un emploi à titre de travailleur indépendant ou
exploite une entreprise soit à son compte, soit à titre d’associé ou de
coïntéressé, ou lorsque, durant cette même semaine, il exerce un autre emploi
dans lequel il détermine lui-même ses heures de travail.
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(2) Where a claimant is employed or engaged in the operation of a
business as described in subsection (1) to such a minor extent that a person
would not normally rely on that employment or engagement as a principal means
of livelihood, the claimant is, in respect of that employment or engagement,
not regarded as working a full working week.
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(2) Lorsque le prestataire exerce un emploi ou exploite une
entreprise selon le paragraphe (1) dans une mesure si limitée que cet emploi
ou cette activité ne constituerait pas normalement le principal moyen de
subsistance d’une personne, il n’est pas considéré, à l’égard de cet emploi
ou de cette activité, comme ayant effectué une semaine entière de travail.
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(3) The circumstances to be considered in determining whether the
claimant's employment or engagement in the operation of a business is of the
minor extent described in subsection (2) are
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3) Les circonstances qui permettent de déterminer si le
prestataire exerce un emploi ou exploite une entreprise dans la mesure
décrite au paragraphe (2) sont les suivantes :
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(a) the time spent;
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a) le temps qu’il y consacre;
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(b) the nature and amount of the capital
and resources invested;
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b) la nature et le montant du capital et
des autres ressources investis;
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(c) the financial success or failure of
the employment or business;
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c) la réussite ou l’échec financiers de
l’emploi ou de l’entreprise;
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(d) the continuity of the employment or
business;
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d) le maintien de l’emploi ou de
l’entreprise;
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(e) the nature of the employment or
business; and
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e) la nature de l’emploi ou de
l’entreprise;
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(f) the claimant's intention and
willingness to seek and immediately accept alternate employment.
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f) l’intention et la volonté du
prestataire de chercher et d’accepter sans tarder un autre emploi.
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(4) Where a claimant is employed in farming and subsection (2)
does not apply to that employment, the claimant shall not be considered to
have worked a full working week at any time during the period that begins
with the week in which October 1st falls and ends with the week in which the
following March 31 falls, if the claimant proves that during that period
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(4) Lorsque le prestataire exerce un emploi relié aux travaux
agricoles auquel ne s’applique pas le paragraphe (2), il n’est pas considéré
comme ayant effectué une semaine entière de travail pendant la période
débutant la semaine où tombe le 1er octobre et se terminant la semaine où
tombe le 31 mars suivant, s’il prouve que, durant cette période :
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(a) the claimant did not work; or
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a) ou bien il n’a pas travaillé;
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(b) the claimant was employed to such a
minor extent that it would not have prevented the claimant from accepting
full-time employment
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b) ou bien il a exercé son emploi dans une mesure si limitée que
cela ne l’aurait pas empêché d’accepter un emploi à temps plein.
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(5) For the purposes of this section, self-employed person means
an individual who
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(5) Pour l’application du présent article, travailleur indépendant
s’entend :
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(a) is or was engaged in a business; or
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a) de tout particulier qui exploite ou
exploitait une entreprise;
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(b) is employed but does not have insurable
employment by reason of paragraph 5(2)(b) of the Act.
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b) de tout employé qui n’exerce pas un
emploi assurable par l’effet de l’alinéa 5(2)b) de la Loi.
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[7]
The Board concluded, through reference to the
criteria in subsection 30(3), that Mr. Perera’s involvement was not minor, and
therefore that he was not unemployed during the relevant period.
[8]
In the course of reaching its conclusion, the
Board referred to several arguments made by Mr. Perera and, explicitly or
implicitly, rejected them. In particular, the Board considered, and rejected,
the argument that, because Mr. Perera did not receive income from his business
while he was collecting employment insurance, he could not have been employed
during that time. The Board held that the relevant sections of the Act and
Regulations define employment in terms of work, not wages, and that the right
to receive income from a business is sufficient to establish employment, even
if income is not actually received.
[9]
The Appeal Division denied leave to appeal.
After setting out the permitted grounds for appeal under subsection 58(1) of
the Department of Employment and Social Development Act, SC 2005, c 34,
the Appeal Division explained that:
In his application, the Appellant re-states
many of the arguments he made before the Board and disagrees with the Board’s
findings. The Appellant is essentially asking that I re-weigh the evidence and
come to conclusions different from those already rendered. The Appellant also
submits that “previous precidents cases, the general division used does not
have similar scenario or relevant situation to my case [sic]” but has
not specified in what way this was done.
[10]
The Appeal Division added that “[t]o assist me in my deliberations, I requested further
submissions from the parties. No additional submissions were received from the
Appellant.”
[11]
The Appeal Division concluded that “[i]n order to have a reasonable chance of success, the
Appellant 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.”
[12]
The sole issue for the Court is whether the
decision of the Appeal Division refusing leave was reasonable.
[13]
Although much of Mr. Perera’s memorandum of
argument is framed in terms of procedural fairness, in substance it alleges
that the Appeal Division erred by ignoring errors of fact that were made by the
Board, as well as errors of law that pertain to the operative statutes and
regulations.
[14]
His submissions essentially repeat the arguments
he raised before the Board, without explaining how the Board erred in rejecting
them. For example, he repeats his arguments that he did not receive any income
while collecting employment insurance benefits and points to the fact that he
eventually returned to his previous employment as proof that he was not engaged
full-time in the operation of his business.
[15]
As noted, these arguments were all raised before
the Board and were either explicitly or implicitly rejected by it. They do not
establish that the Appeal Division was unreasonable or unfair in denying him
leave to appeal.
[16]
Mr. Perera also alleges a section 7 Canadian
Charter of Rights and Freedoms violation on account of the “serious state-imposed psychological stress”
occasioned by the government’s conduct during these proceedings. This stress
allegedly arose from his need to answer telephone calls and draft
correspondence in relation to this matter and the fact that he must do this
after finishing work at 3:00 p.m., which makes things difficult because most
government offices close by 4:30 p.m. Although the materials before the Appeal
Division refer to his concern about the overlap between his working hours and
government office hours, he did not previously frame this inconvenience as a Charter
violation. There is simply insufficient evidence to support his bald
allegation of a Charter violation and he ought to have raised it before
the Appeal Division first.
[17]
Finally, Mr. Perera alleges in his Notice of
Application that, when he received the Appeal Division’s request for additional
submissions, he telephoned for further clarification and was told by an
employee of the Social Security Tribunal to send his submissions to the Canada
Employment Insurance Commission. The implication seems to be that, as a result
of this employee’s erroneous advice, he sent his additional submissions to the
wrong location. Mr. Perera provides no affidavit or other evidence to
substantiate this allegation. Furthermore, the letter that the applicant
received was very clear that his submissions were to be sent to the Social
Security Tribunal.
[18]
For these reasons, I am unable to find that the Appeal
Division’s decision was unreasonable or unfair. The application must be
dismissed. The Respondent does not seek costs and none will be awarded.
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