Employment Insurance Appeal Division: Your reasons for appealing

You got a decision from either:

the Employment Insurance (EI) Board of Appeal opens a new window, or
the Social Security Tribunal (SST) General Division.

If you agree with everything in your decision, there’s no reason to appeal. If you disagree with the decision, you can appeal, but only for specific reasons.

You can’t appeal to the Appeal Division simply because you don’t agree with the EI Board of Appeal decision or the SST General Division decision. You can’t appeal on the basis that you have new evidence to support your claim.

If you want to appeal the EI Board of Appeal decision or the SST General Division decision, you have to base your arguments on at least one of the grounds of appeal.

Grounds of appeal

The law only allows you to appeal to the Appeal Division for certain reasons. The law calls these reasons “grounds of appeal.”

Grounds of appeal for EI Board of Appeal decisions are set out in section 54.3 of the Department of Employment and Social Development Act (DESDA) opens a new window . Grounds of appeal for the SST General Division decisions are set out in section 58(1) of the DESDA.

The legal wording for the grounds of appeal is technical. The member has to follow the wording of the law, interpret it, and apply it to your situation.

Here’s the legal wording for each ground of appeal with a plain language explanation.

Errors

You can appeal your EI Board of Appeal decision or SST General Division decision because you believe they made a mistake. The Appeal Division can only consider whether the EI Board of Appeal or the SST General Division made one or more of the following types of mistakes.

1: Natural justice

Legal wording	The EI Board of Appeal or the SST General Division failed to observe a principle of natural justice.
Plain language wording	The EI Board of Appeal or the SST General Division didn’t follow a fair process.

What’s natural justice?

Natural justice is about fair process. This includes things like the right to see all the evidence, the right to make your case, and the right to an impartial (unbiased) decision-maker.

Here are examples of mistakes the EI Board of Appeal or the SST General Division could make, based on this ground:

Example: You didn’t get all the documents

The SST General Division didn’t give Rachael copies of all the documents that Service Canada used to make its reconsideration decision.

Example: The hearing happened without you

The EI Board of Appeal held a hearing, but Imani didn’t get a Notice of Hearing telling her about it.

2: Error of Jurisdiction

Legal wording	The EI Board of Appeal or the SST General Division acted beyond or refused to exercise its jurisdiction.
Plain language wording	The EI Board of Appeal or the SST General Division dealt with an issue it didn’t have the power to deal with. Or it didn’t deal with an issue it was supposed to deal with.

What’s jurisdiction?

Jurisdiction is the legal power (authority) to deal with a dispute. There are some things the EI Board of Appeal or the SST General Division have the power to decide, and some things they don’t.

Here are examples of mistakes the EI Board of Appeal or the SST General Division could make, based on this ground:

Example: The General Division decided a job wasn’t insurable

The EI Board of Appeal decided that one of Cheryl’s jobs was not “insurable” – meaning that her time working that job couldn’t count toward the number of hours needed to get EI. The EI Board of Appeal can’t decide that. That’s up to the Canada Revenue Agency to decide.

Example: The SST General Division didn’t make a decision about something it should have

Service Canada granted Omar benefits from January to September, except for the months of March and July. This was because Service Canada said that Omar wasn’t available for work in March or July.

Omar appealed to the SST General Division. The General Division decided that Omar was available for work in March. So he was entitled to benefits that month. But the General Division didn’t decide whether Omar was available for work in July. The General Division must consider both these months.

3: Error of law

Legal wording	The EI Board of Appeal or the SST General Division erred in law in making its decision, whether or not the error appears on the face of the record.
Plain language wording	The EI Board of Appeal or the SST General Division didn’t follow the law correctly.

What’s an error of law?

An error of law happens when the EI Board of Appeal or the SST General Division:

makes a decision using part of the legislation (laws from Parliament) that doesn’t actually apply to your situation
makes a decision using an interpretation of case law (established law from a court or tribunal) that doesn’t apply to your situation
doesn’t apply the correct law
uses the correct law, but misunderstands what it means or how to apply it

Here are examples of mistakes the EI Board of Appeal or the SST General Division could make, based on this ground:

Example: The EI Board of Appeal applied the case law wrong

Arum was fired from her job. The Canada Employment Insurance Commission (CEIC) says she was fired because of her misconduct, so she was disqualified from getting EI. Some court decisions have set out requirements to define what kind of behaviour is “misconduct.” One of the requirements says that the CEIC has to prove that Arum should have known that there was a real chance she could be fired because of what she did. The EI Board of Appeal agreed that Arum was fired because of her misconduct, but it did that without considering this important requirement for determining whether there was misconduct. This is an error of law.

Example: The SST General Division applied one law but not another

The SST General Division said that Alex wasn’t entitled to benefits because he was outside of Canada. Part of the Employment Insurance Act (Act) says you can’t get benefits if you’re outside Canada. But part of the Employment Insurance Regulations (Regulations) says there are exceptions to that rule. Alex was outside Canada for a week to attend the funeral of a close family member. The Regulations say that might be allowed. The member applied only the Act and not the Regulations. That’s an error of law.

4: Error of fact

Legal wording	The EI Board of Appeal or the SST 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.
Plain language wording	The EI Board of Appeal or the SST General Division got important facts wrong because it overlooked or misunderstood evidence.

What’s an error of fact?

The EI Board of Appeal or the SST General Division has to review and consider all the evidence before deciding what facts it accepts. This is called “finding the facts” or “making a finding of fact.” When the EI Board of Appeal or the SST General Division makes a finding of fact that’s important to its decision, but ignores or misunderstands evidence about that fact, that’s an error of fact.

Here are examples of mistakes the EI Board of Appeal or the SST General Division could make, based on this ground:

Example: The EI Board of Appeal mixed up important dates

The EI Board of Appeal decided that Aarav had been laid off on October 21 and that he qualified for EI as of that date. But October 21 was when Aarav had a job interview. The documents show that he was laid off on October 3. The EI Board of Appeal mixed up important dates on file and decided when Aarav would get his benefits using the wrong date. That’s an error of fact.

Example: The SST General Division didn’t look at all the evidence

The SST General Division decided that Bruno had stopped working because of personal reasons. It said that was a fact. It agreed with the CEIC that Bruno was disqualified from getting EI sickness benefits because he stopped working for personal reasons. But Bruno had sent in doctor's reports showing that he had to stop working because he was sick. The General Division didn’t review or consider that evidence. The General Division made the wrong finding of fact and used that finding to make its decision. That’s an error of fact.

Constitutional appeals

The EI Board of Appeal can’t consider any question of constitutional law. So, you can appeal an EI Board of Appeal decision if a constitutional question hasn’t been decided. That’s a valid reason (ground) to appeal to the Appeal Division.

Legal wording	A question of constitutional law remains to be determined.
Plain language wording	A question under Canada’s constitution acts hasn’t been decided and you want it decided. Canada’s constitution acts are the Constitution Act, 1867 and the Constitution Act, 1982 including the Canadian Charter of Rights and Freedoms opens a new window (Charter).

Example: The EI Board of Appeal didn’t make a decision about your Charter challenge

Anya said that a section of the Employment Insurance Act is discriminatory and violates their equality rights under section 15 of the Charter. The EI Board of Appeal dismissed Anya’s appeal, explaining that it’ is not allowed to consider any question of constitutional law. Anya appealed to the Appeal Division and made the Charter challenge there. The Appeal Division will decide whether the section goes against the Charter. If it does, the Appeal Division will decide what that means for Anya’s EI claim.