Executive Summary: Key Legal and Evidentiary Issues

• The applicant, a self-represented litigant, challenged the Appeal Division's refusal to grant leave to appeal a General Division decision finding her ineligible for Employment Insurance (EI) benefits.

• Voluntary departure from employment during the COVID-19 pandemic was deemed unjustified under sections 29 and 30 of the Employment Insurance Act, as quitting was not her only reasonable alternative.

• Insufficient work hours offered by the employer did not satisfy the legal threshold for justified voluntary departure, since retaining the position while seeking other employment was a viable option.

• At the judicial review hearing, it became apparent the applicant had mistakenly filed for EI benefits instead of the Canada Emergency Response Benefit (CERB), to which she likely would have been entitled.

• No statutory grounds of appeal under section 58.1 of the Department of Employment and Social Development Act were raised by the applicant, who merely reiterated previously considered arguments.

• The Federal Court lacked jurisdiction to remedy the applicant's situation despite acknowledging the unfortunate error in the type of benefit claimed.

Background and employment history

Zina Saleh had been employed at Maison Simons since 2015 when, in March 2020, the store was forced to close its doors due to the COVID-19 pandemic. Her employer issued a Record of Employment citing a shortage of work as the reason for the cessation of employment. On June 10, 2020, Ms. Saleh filed a claim for Employment Insurance benefits, which was approved. She received EI benefits from September 2020 through July 2021.

Return to work and voluntary departure

During the period she was receiving benefits, Ms. Saleh was recalled by Maison Simons and returned to work on a part-time basis in September 2020. However, she voluntarily left her employment on November 28, 2020, citing insufficient hours of work as the reason for her departure. She argued that the limited hours offered were not enough to meet her basic needs, leaving her no choice but to resign.

The Employment Insurance Commission's determination

In September 2023, the Employment Insurance Commission concluded that Ms. Saleh was not eligible for EI benefits on the grounds that she had voluntarily left her employment and that her employment preferences limited her chances of finding new work. This finding triggered a series of appeals through the Social Security Tribunal system.

The General Division and Appeal Division decisions

Before the General Division of the Social Security Tribunal, Ms. Saleh maintained that she had no other option but to quit given the inadequate hours. The General Division rejected her appeal in its decision of February 1, 2024, concluding that a lack of work hours does not justify a voluntary departure when it is not the only reasonable solution available. The Division noted that the applicant had options to avoid quitting, including retaining her position while searching for alternative employment, reasoning that "a few hours are better than no hours." Ms. Saleh then sought leave to appeal to the Appeal Division, which on March 6, 2024, refused the application, finding that the arguments raised conferred no reasonable chance of success on the appeal. The Appeal Division confirmed that the General Division had correctly applied the legal test for voluntary departure under section 29(c) of the Employment Insurance Act.

The applicable legal framework

Sections 29 and 30 of the Employment Insurance Act exclude from benefits any claimant who voluntarily leaves employment without just cause. Section 29(c) sets out a list of circumstances under which a claimant may be justified in leaving, including harassment, dangerous working conditions, significant changes in compensation, and other enumerated factors. Critically, the departure must constitute the claimant's only reasonable alternative, considering all circumstances. The Appeal Division, for its part, may only intervene on one of three grounds under section 58.1 of the Department of Employment and Social Development Act: a failure to observe natural justice, an error of law, or a decision based on an erroneous finding of fact made in a perverse or capricious manner.

The judicial review and the misidentified benefit

Ms. Saleh, representing herself before the Federal Court, sought judicial review of the Appeal Division's decision. The sole issue was whether the Appeal Division's refusal was reasonable under the framework established by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, which requires that administrative decisions display justification, transparency, and intelligibility. During the hearing, it became evident that Ms. Saleh had been mistaken about the nature of her claim all along. She had filed for Employment Insurance benefits under the Employment Insurance Act when she believed she was applying for income support under the Canada Emergency Response Benefit Act. The Court acknowledged that she likely would have been entitled to the Canada Emergency Response Benefit, but unfortunately had no authority to remedy the situation.

Ruling and outcome

Justice Jocelyne Gagné of the Federal Court found that Ms. Saleh failed to raise any of the recognized statutory grounds for appeal and merely reiterated arguments that had already been thoroughly and adequately considered at earlier stages. The Court held that the Appeal Division's decision was reasonable and dismissed the application for judicial review. The Court awarded no costs against either party. While expressing sympathy for Ms. Saleh's predicament, the Court noted its hope that the Employment Insurance Commission would re-examine her file in light of all the facts and exercise its discretionary powers to alleviate her burden, as suggested by the defendant's counsel during the hearing. No specific monetary amount was ordered or awarded in favour of either party, as the application was simply dismissed without costs.