Executive Summary: Key Legal and Evidentiary Issues

• Judicial review focused on whether the Social Security Tribunal Appeal Division reasonably refused leave to appeal the General Division’s decision on Employment Insurance availability.

• Application of paragraph 18(1)(a) of the Employment Insurance Act to the applicant’s obligation to prove he was capable of and available for work and unable to find suitable employment during the disputed period.

• Treatment of evidence regarding the applicant’s lack of job-search efforts after waiting approximately four months for a possible recall by his previous employer, which had accommodated his shoulder injury.

• Consideration of the impact of the missing Active Job Search form, including the General Division’s finding that the Commission had not shown it was sent, and whether this resulted in any procedural unfairness.

• Assessment under subsection 58(1) of the Department of Employment and Social Development Act of whether the General Division committed any reviewable error of natural justice, law, or fact, and the Appeal Division’s conclusion that the appeal had no reasonable chance of success.

• Procedural amendment of the style of cause to replace “Service Canada Employment and Social Department” with “Attorney General of Canada” as respondent, without affecting the dismissal of the application or resulting in any award of costs.

Facts and background
The applicant, Kamal Halimeh, applied for Employment Insurance benefits on June 12, 2022, after being laid off from his job as an electrician. He received EI benefits from June 19, 2022, to February 25, 2023. In a letter dated October 25, 2023, the Commission decided that he was disentitled to benefits from June 13, 2022, on the basis that he had failed to show he was available for work and had failed to return an Active Job Search form. The Commission also imposed a penalty for knowingly making false representations by reporting that he was capable of work and later maintained this decision in a reconsideration letter dated January 8, 2024.

Proceedings before the General Division
The applicant appealed the reconsideration decision to the General Division of the Social Security Tribunal of Canada. A hearing was held on March 20, 2024, and the General Division issued its decision on March 25, 2024. The General Division allowed the appeal in part. It explained that section 50(8) of the Employment Insurance Act permits the Commission to require a claimant to prove they are making reasonable and customary efforts to obtain suitable employment for the purpose of proving availability. It accepted the applicant’s argument that he had not received the Job Search form and therefore had not been given the opportunity to provide the Commission with job-search information in response to that request. The General Division also concluded that the Commission had failed to show that the applicant knowingly gave false information.

On the availability issue under paragraph 18(1)(a) of the Employment Insurance Act, the General Division found that the applicant had shown he was available for work from June 19, 2022, to October 22, 2022, but had failed to show he was available from October 23, 2022, to February 25, 2023. The applicant had explained that he was waiting to be recalled by his previous employer, which had accommodated his shoulder injury by precluding overhead work. The General Division found it was reasonable for him to wait for a four-month period to see if he would be recalled, based on his past experience. However, it found that he did not make efforts to find another job after that four-month period and that he did not provide evidence to demonstrate that he would not have been hired elsewhere.

Appeal Division decision refusing leave to appeal
The applicant appealed to the Appeal Division, challenging the General Division’s conclusion that he had failed to prove availability from October 23, 2022, to February 25, 2023. He argued that the General Division made an error of fact by ignoring that he could have returned to work with accommodations and by not properly considering that he did not receive the Job Search form. The Appeal Division considered these arguments under subsection 58(1) of the Department of Employment and Social Development Act, which limits the grounds of appeal to failures of natural justice or jurisdiction, errors of law, or certain erroneous findings of fact.

The Appeal Division explained that it could only intervene if the General Division’s decision was based on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material, and that it was not its role to reweigh the evidence or reconsider how the General Division applied the law to the facts. It noted that the General Division had considered the applicant’s arguments, including his understanding of his obligations and his physical limitations, and that the General Division had engaged in a meaningful analysis of what suitable employment would be for him, taking into account his health and physical capabilities. The Appeal Division also emphasized that the Employment Insurance Act requires a claimant to show that they are available for work and that this includes looking for work, and it referenced the Rights and Responsibility section of the EI application, which states that a claimant requesting regular EI benefits must actively search for and accept offers of suitable employment. Concluding that the applicant was attempting to reargue his case and seeking a different weighing of the evidence, the Appeal Division found that the proposed appeal had no reasonable chance of success and refused leave to appeal.

Judicial review application and issues before the court
The applicant applied to the Federal Court for judicial review of the Appeal Division’s decision dated May 9, 2024. The court identified three issues: whether the applicant was deprived of procedural fairness, whether the Appeal Division’s decision was reasonable, and whether the style of cause should be amended to name the Attorney General of Canada as the respondent. Both parties agreed that a reasonableness standard applied to the Appeal Division’s treatment of factual determinations and the merits of the decision under review. The court also reviewed case law on the standard of review for procedural fairness issues, noting that it did not need to resolve any uncertainty over whether correctness or reasonableness applied because either standard would lead to the same result.

Analysis of procedural fairness
On procedural fairness, the applicant argued that he had been deprived of fairness because he did not receive the Job Search form and therefore was not given a fair opportunity to respond or comply with the Commission’s requirements. The court noted that the applicant had raised similar arguments before the Appeal Division, emphasizing that he did not know he was expected to look for another job, especially given his shoulder injury, and that he had not received the communication asking him to complete and return the Job Search form.

The court observed that the Appeal Division had addressed this argument. It noted that the Appeal Division explained the statutory requirement in subsection 18(1) of the Employment Insurance Act that a claimant must show they are available for work and that the Rights and Responsibility section of the benefits application states that, when requesting regular EI benefits, a claimant must actively search for and accept offers of suitable employment. The court also pointed out that the Appeal Division had recognized that the General Division agreed the Commission’s evidence did not show that the Job Search form had been sent. In light of the legislative requirement and the content of the application materials, the court found no basis to conclude that the applicant had been deprived of procedural fairness. It held that, whether the issue was analyzed under a correctness or reasonableness standard, there was no ground for intervention.

Reasonableness of the Appeal Division decision
The applicant also challenged the reasonableness of the Appeal Division’s decision, arguing that, in view of his medical condition and long employment with his former employer, it was reasonable for him to expect to be recalled, and that the Appeal Division should not have accepted the General Division’s conclusion that he failed to show adequate job-search efforts after October 23, 2022. The court noted that he had raised similar arguments before the Appeal Division, including that he had been called back in the past and that he still had the company vehicle and phone.

The court summarized the General Division’s reasoning, including its finding that it was reasonable for the applicant to wait four months for a possible recall, taking into account his physical restrictions, the accommodations provided, his lengthy work history, and the fact that he still had the employer’s work truck parked in his driveway. It also noted the General Division’s finding that from October 23, 2022, to February 25, 2023, the applicant had not shown that he made enough effort to find a suitable job because he did not contact his previous employer to inquire about returning and did not make any efforts to find another job, nor did he provide supporting evidence to show that he would not be hired elsewhere.

The court then reviewed the Appeal Division’s summary of this reasoning and its conclusion that the General Division had conducted a meaningful analysis of suitable employment and availability. The court stressed that it is not the role of a court on judicial review to reweigh the evidence. It also addressed the applicant’s oral assertion that he had once been recalled after more than a year, noting that there was nothing in the record before the court to support that assertion and no indication that this had been raised before the Appeal Division as a misapprehension of evidence. The court found that the applicant, who bore the burden of demonstrating a reviewable error, had not shown that the Appeal Division erred in its analysis of the evidence before the General Division. It concluded that the Appeal Division’s reasoning was intelligible and reasonable.

Procedural amendment to the style of cause and outcome
On the third issue, the respondent asked the court to amend the style of cause, relying on Rule 303 of the Federal Courts Rules. The court accepted that, where there is no person directly affected by the application other than the tribunal, the Attorney General of Canada must be named as the respondent. It agreed that the existing style of cause, which named “Service Canada Employment and Social Department” as the respondent, should be amended to replace that designation with “Attorney General of Canada.” The applicant took no position on this issue, and the court noted that the amendment was purely procedural and did not affect the outcome of the application.

In its conclusion, the court found that the Appeal Division’s decision was reasonable and that the applicant had not demonstrated a denial of procedural fairness. The court dismissed the application for judicial review. Although the respondent was successful, it did not claim costs, and the court therefore ordered that the application was dismissed without any award of costs. The decision does not specify any monetary amount granted or ordered in favour of any party.