Social Security Tribunal of Canada

EI Appeal Division: Your reasons for appealing

If you agree with everything in the General Division 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 General Division decision. If you appeal, explain clearly how the Social Security Tribunal (SST)’s General Division member (the decision-maker) made a mistake in the General Division decision. You have to base your arguments on 1 of 4 grounds of appeal. You can’t argue the same thing that you argued at the General Division. 

Ground 1: Natural justice 

Legal wording The General Division failed to observe a principle of natural justice.
Plain language wording The 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 General Division could make, based on this ground:

Example: You didn’t get all the documents

The General Division didn’t give Rachael copies of all of the documents that the Canada Employment Insurance Commission (CEIC) used to make its reconsideration decision or that it gave to the SST for the hearing.

Example: The hearing happened without you

The General Division held a hearing, but Imani didn’t get a Notice of Hearing telling her about it. 

Ground 2: Error of jurisdiction 

Legal wording The General Division acted beyond or refused to exercise its jurisdiction.
Plain language wording The 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 SST’s legal power (authority) to deal with a dispute. There are some things the SST has the power to decide, and some things it doesn’t.

Here are examples of mistakes the General Division could make, based on this ground:

Example: The 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 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.

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

The General Division 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 General Division can’t decide that. That’s up to the Canada Revenue Agency to decide. 

Ground 3: Error of law 

Legal wording The 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 General Division didn’t apply the law correctly.

What’s an error of law?

An error of law happens when the 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 the case law (established law from a court or tribunal decision) 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 General Division could make, based on this ground:

Example: The General Division applied one law but not another

The 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’s allowed. The member applied only the Act and not the Regulations. That’s an error of law.

Example: The General Division applied the case law wrong

Arum was fired from her job. The 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 General Division 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. 

Ground 4: Error of fact 

Legal wording 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.
Plain language wording The General Division got important facts wrong because it overlooked or misunderstood evidence.

What’s an error of fact?

The 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 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 General Division could make, based on this ground:

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

The General Division decided that Bruno had stopped working on April 20 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 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.

Example: The General Division mixed up important dates

The General Division 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 General Division mixed up important dates on file, and decided when Aarav would get his benefits using the wrong date. That’s an error of fact. 

New evidence isn’t a ground of appeal

At the Appeal Division, new evidence isn’t a ground of appeal. You have to show that the General Division made a mistake based on 1 of the 4 grounds of appeal. To do that, you have to use evidence the General Division had. The Appeal Division can’t look at new evidence about your claim for benefits.

Sometimes, you can ask the General Division to consider new facts and reopen your General Division decision. Learn about reopening a decision and the limited circumstances when that’s allowed.

You can apply to reopen a General Division decision and appeal the same decision to the Appeal Division at the same time.

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