Executive Summary: Key Legal and Evidentiary Issues

• Appeal challenged the denial of Employment Insurance (EI) benefits due to insufficient insurable hours.

• Central issue was whether the appellant’s claim should have been antedated to increase eligibility.

• Dispute focused on whether a valid reconsideration decision was made on the antedating request.

• Tribunal and courts found no procedural unfairness in the administrative or judicial proceedings.

• Claimant’s attempt to raise constitutional issues failed due to improper procedural notice.

• Court dismissed the appeal and awarded no costs, as the Attorney General did not seek any.

Facts and outcome of the case

Background and procedural history

The appellant, Kerry Mayhead, applied for Employment Insurance (EI) benefits in January 2022. The Canada Employment Insurance Commission denied her claim, finding that she had only 151 hours of insurable employment in her qualifying period—well below the 420-hour threshold required for eligibility. She requested reconsideration, citing COVID-related school closures as a reason for reduced hours, and raised the possibility of antedating her claim to an earlier date. The Commission upheld its original denial in a written reconsideration decision.

Mayhead appealed to the General Division of the Social Security Tribunal. The General Division upheld the Commission’s decision, finding no jurisdiction to address the antedating issue because there was no formal reconsideration decision on that issue. It also determined she still lacked the required hours regardless of any potential backdating.

Subsequently, she sought leave to appeal to the Tribunal’s Appeal Division. Leave was denied, as her appeal had no reasonable chance of success on any statutory ground. Mayhead then pursued judicial review in the Federal Court, which upheld the Appeal Division’s decision. She argued procedural unfairness throughout, including before the Federal Court of Appeal.

Issues on appeal

The appeal to the Federal Court of Appeal raised two primary issues:

1. Whether the Appeal Division’s denial of leave to appeal was unreasonable.

2. Whether the appellant was denied procedural fairness during the proceedings.

Mayhead also attempted to raise constitutional issues during the appellate process.

The court’s analysis

The court found the Appeal Division’s denial of leave to be reasonable. It accepted that there was no reconsideration decision by the Commission on the antedating issue, which meant the General Division lacked jurisdiction to review that issue. Consequently, the Appeal Division reasonably concluded that an appeal on that ground had no chance of success.

On procedural fairness, the court rejected the appellant’s claims. It found that the procedures followed by the Commission and the Social Security Tribunal were fair, as previously determined by the Federal Court. Regarding the proceedings before the Federal Court of Appeal, the court held that denying the appellant extended oral argument time and declining to hear a constitutional issue due to improper notice did not constitute unfairness.

Outcome of the case

The appeal was dismissed. The court made no order as to costs, noting that the Attorney General did not seek them. The respondent, Attorney General of Canada, prevailed in the case.