Docket: T119015
Citation:
2016 FC 220
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, February 18, 2016
PRESENT: The Honourable Mr.
Justice Martineau
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BETWEEN:
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DANIELLE
BERGERON
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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 22, 2015, denying an application for leave to appeal a
decision by the General Division of the Social Security Tribunal (General Division).
[2]
The facts of the case are not in dispute,
although the parties disagree on how they should be interpreted.
[3]
Toward the end of 2013, the Applicant submitted
a benefit claim, which was approved by the Canada Employment Insurance
Commission (the Commission). The Applicant was unemployed from November 2013 to
July 1, 2014 when she accepted a fulltime job as a mortgage broker with MultiPrêts.
In August 2014, the Commission conducted a telephone interview with the
Applicant. She said she had started working full time at MultiPrêts, but was paid on commission only.
She also said that she spent an average of 30 hours per week on this job and
wanted to make it her main source of income; and that she usually worked Monday
to Friday, days and evenings, as well as the occasional weekend. The Applicant
also said she wanted to find a parttime job while continuing to work at MultiPrêts
and was looking for 11 to 20 hours of work per week. Finally, she said the firm
was looking for fulltime brokers and that she could not work as a broker for
another firm.
[4]
On August 11, 2014, the Commission determined
that the Applicant was not entitled to employment insurance benefits starting
on July 1, 2014, because she was not considered available for work. The
Commission therefore imposed an indefinite disentitlement effective July 1,
2014, as well as a $1904.00 overpayment amount. On September 8, 2014, the
Applicant submitted a request for reconsideration. The Commission telephoned
the Applicant to obtain additional information. The Applicant said she was
available for work as a banking representative, that she could provide proof
that she was looking for work, and that she was free to set her brokerage
schedule as she saw fit. Following this discussion, the Commission denied the
request for reconsideration and maintained the disentitlement and the
overpayment.
[5]
On November 17, 2014, the Applicant filed a
notice of appeal before the General Division of the Social Security Tribunal,
but the notice was incomplete. On November 29, 2014, she filed a second notice
of appeal. On January 15, 2015, a teleconference hearing was held. On April 14,
2015, the General Division dismissed the Applicant’s appeal. The General
Division determined that the Applicant had failed to prove she was available
for work because she was working fulltime. On May 14, 2015, the Applicant
addressed the Appeal Division. On June 22, 2015, a member of the
Appeal Division reviewed the case. Considering, on the one hand, that the
General Division had correctly applied the relevant tests in assessing the
Applicant’s availability, and on the other hand, that the application for leave
to appeal did not raise any question of fact or law or jurisdiction whose
response might provide a basis for setting aside the General Division’s
decision, the member of the Appeal Division refused to grant leave to appeal,
hence this application for judicial review.
[6]
Reasonableness is the standard that applies to
the judicial review of a decision by a member of the Appeal Division denying
leave to appeal under the Department of Employment and Social Development
Act, S.C. 2005, c. 34 (DESDA). In short, does the
refusal here to grant leave to appeal fall within a range of possible
acceptable outcomes which are defensible in respect of the facts and law?
[7]
From the standpoint of applicable law, under
paragraph 18(1)(a) of the Employment Insurance Act, S.C. 1996, c. 23
(EIA), 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 “capable of and available for work and
unable to obtain suitable employment.” In Faucher v. Canada
(Employment and Immigration Commission), (1997) FCA No. 215 (Faucher),
the Federal Court of Appeal indicated that a claimant’s availability is
a question of fact that must be determined by analyzing the following three
factors:
a)
the desire to return to the labour market as
soon as a suitable job is offered;
b)
the expression of that desire through efforts to
find a suitable job; and
c)
not setting personal conditions that might
unduly limit the chances of returning to the labour market.
[8]
Also, under subsection 58(1) of DESDA the
following errors or failures are the only grounds of appeal:
(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 in making its decision,
whether or not the error appears on the face of the record; or
(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.
[9]
Furthermore, an appeal before the Appeal
Division is not an appeal where a de novo hearing is held, i.e. where a
party can resubmit its evidence and hope for a different decision. That said,
the claimant must obtain leave to appeal. However, under subsection 58(2) of DESDA, “Leave to appeal
is refused if the Appeal Division is satisfied that the appeal has no
reasonable chance of success.”
[10]
The Applicant is representing herself in these
proceedings. Her factum is very brief and simply reasserts the grounds of
appeal previously examined. The Applicant maintains that the Appeal Division
did not comply with subsection 58(1) of DESDA by not considering the
elements brought to its attention (specifically in terms of the Applicant’s
employment searches), whereas the Appeal Division compared her case to Faucher,
which constitutes a reviewable error. In her oral submissions before the Court,
the Applicant again relied on the facts and explanations previously considered
and rejected both by the Commission and the Social Security Tribunal (General
Division and Appeal Division).
[11]
The Applicant had the burden of demonstrating to
the member of the Appeal Division that her appeal was reasonably likely to
succeed based on the evidence in the docket and the criteria set out in
subsection 58(1) of DESDA. The member of the Appeal Division did in fact
consider the grounds of appeal submitted by the Applicant and examined the
General Division’s decision. However, the Applicant was simply seeking a new
assessment of the evidence, which is not the Appeal Division’s role. The appeal
arguments put forward by the Applicant in her application for leave to appeal
did not undermine the reasonableness of the General Division’s decision. The
Applicant did not challenge the fact that she was employed fulltime at MultiPrêts.
Rather, she alleged that she had not received any income during the period in
dispute because she was paid on commission and did not expect to be paid until
November 2014. Further, there was no serious basis for the Applicant’s argument
related to Faucher. Her “case” was not compared to the case in Faucher.
Rather, it was assessed in light of the criteria established in that decision.
However, the Applicant did not explain how the Faucher ruling would have
been incorrectly interpreted or why it would not apply in this case. Finally,
claimants who impose unreasonable restrictions regarding the type of work they
are looking for or the area in which they decide to work cannot prove they are
available (Canada (Attorney General) v. Whiffen, (1994) FCA
No. 252 at paragraph 3).
[12]
The Applicant did not convince me in this case
that the Appeal Division committed a reviewable error, whereas its refusal to
grant leave to appeal is based on the evidence in the docket and the applicable
law. The Appeal Division’s finding that the Applicant’s appeal had no reasonable
chance of success falls within a range of possible acceptable outcomes which
are defensible in respect of the facts and law.
[13]
The application for judicial review will
therefore be dismissed by the Court. In this case, the Respondent does not ask
for costs.
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