Executive Summary: Key Legal and Evidentiary Issues

• Reasonableness of the Social Security Tribunal’s Appeal Division decision under the Vavilov framework for judicial review.
• Application of sections 29 and 30 of the Employment Insurance Act to a claimant who voluntarily left part-time employment during the COVID-19 pandemic.
• Assessment of whether reduced working hours and financial hardship made quitting the “only reasonable solution” within the meaning of paragraph 29(c) of the Act.
• Limits of the Appeal Division’s jurisdiction to intervene, confined to the three statutory grounds of appeal under section 58.1 of the Department of Employment and Social Development Act.
• Evidentiary weight given to the claimant’s explanation that she misunderstood the benefit scheme and believed she was applying for Canada Emergency Response Benefit (CERB), not regular EI.
• Scope of the Federal Court’s remedial powers and its inability to convert or re-characterise EI benefits into CERB or otherwise alleviate the claimant’s financial burden directly.

Factual background

Madame Zina Saleh had been employed by Maison Simons since 2015 when the COVID-19 pandemic forced the closure of the store in March 2020. Her employer issued a Record of Employment citing a shortage of work as the reason for the interruption of earnings. Following this, on 10 June 2020, Ms. Saleh applied for and was granted Employment Insurance (EI) benefits. She received EI payments from September 2020 to July 2021. In September 2020, she was recalled by Simons and returned to work on a part-time basis. Dissatisfied with the limited number of hours offered, she voluntarily left her job on 28 November 2020, asserting that the insufficient hours did not allow her to meet her basic needs.

In September 2023, the Canada Employment Insurance Commission reviewed her situation and concluded that she was not entitled to EI benefits because she had voluntarily left her employment and her employment preferences reduced her chances of securing new work. This determination led to a dispute before the Social Security Tribunal of Canada.

Proceedings before the Social Security Tribunal – General Division

At the General Division (the first level of the Social Security Tribunal), Ms. Saleh argued that she had no real choice but to resign, because her part-time hours were too few to sustain her financially. The General Division examined the factual circumstances and applied the statutory framework in the Employment Insurance Act, in particular sections 29 and 30. Section 30 excludes from EI benefits a claimant who voluntarily leaves employment without just cause, while section 29(c) sets out that just cause exists only if, considering all the circumstances, leaving is the “only reasonable solution” for the claimant. The statute provides a non-exhaustive list of circumstances that may justify quitting, including harassment, unsafe working conditions, significant changes to remuneration or duties, discrimination, the need to accompany a spouse or care for a dependent, and a reasonable assurance of another job, among others.

The General Division acknowledged the claimant’s financial concerns but found that the mere reduction in available hours, without more, did not establish that quitting was her only reasonable option. In its reasons, it stressed that she still had some paid hours and could have searched for additional or alternative work while remaining employed at Simons. The tribunal therefore held that Ms. Saleh had voluntarily left without just cause within the meaning of the Act and dismissed her appeal from the Commission’s decision.

Proceedings before the Social Security Tribunal – Appeal Division

Unhappy with this outcome, Ms. Saleh sought leave (permission) to appeal to the Appeal Division of the Tribunal. The Appeal Division’s role, however, is not to rehear the case from scratch; its jurisdiction is constrained by section 58.1 of the Department of Employment and Social Development Act. Under that provision, it may intervene only if the General Division failed to observe a principle of natural justice or acted without or refused jurisdiction, committed an error of law, or based its decision on a perverse or capricious finding of fact or one made without regard to the evidence.

In its March 6, 2024 decision, the Appeal Division concluded that Ms. Saleh’s proposed grounds of appeal did not raise any arguable case on one of these limited grounds. It observed that the General Division had correctly identified the legal test for voluntary leaving and just cause under sections 29 and 30, considered the evidence, and reasonably concluded that continuing to work part-time while seeking additional employment was an available and more reasonable option than resigning outright. Finding that the appeal had “no reasonable chance of success,” the Appeal Division refused leave to appeal.

Judicial review before the Federal Court

Ms. Saleh then brought an application for judicial review before the Federal Court, challenging the Appeal Division’s refusal of leave. She appeared self-represented at the hearing, while the Attorney General of Canada appeared for the respondent. The Federal Court approached the matter using the reasonableness standard of review set out in the Supreme Court of Canada’s decision in Vavilov. Under that framework, the key question was whether the Appeal Division’s decision showed justification, transparency, and intelligibility and was defensible in light of the facts and law.

The Court emphasised that a judicial review of the Appeal Division’s leave decision is not an opportunity to re-argue the merits of the EI entitlement question. Instead, the Court had to determine whether the Appeal Division reasonably applied its narrow statutory mandate under section 58.1. In that context, the judge noted that Ms. Saleh did not advance any argument based on a denial of natural justice, an error of law, or a clearly unreasonable factual finding by the General Division. Rather, she largely repeated the same factual and equitable arguments about her financial hardship and limited hours that had already been presented to the Commission and the General Division, and which those bodies had already carefully considered.

On this basis, the Federal Court found that the Appeal Division’s conclusion—that there was no reasonable chance of success on appeal—fell squarely within a range of acceptable and defensible outcomes. The tribunal had correctly recited the legal test for voluntary leaving with just cause and recognised that quitting must be the claimant’s only reasonable solution, not simply a reasonable or understandable choice. Given that the General Division had found that alternative solutions (such as remaining employed part-time while actively looking for more work) were available, the Appeal Division reasonably declined to grant leave.

Misunderstanding between EI benefits and CERB

A significant factual element surfaced at the Federal Court hearing: Ms. Saleh acknowledged that she had misunderstood the nature of the benefit she was claiming. She believed she was applying for the Canada Emergency Response Benefit (CERB) under the Canada Emergency Response Benefit Act, rather than for regular Employment Insurance benefits under the Employment Insurance Act. The Court recognised that, on the facts, she likely would have qualified for CERB during the relevant period, and her confusion was understandable in the context of rapidly changing pandemic-era benefit schemes.

However, the Court was clear that it had no authority on judicial review to retroactively reclassify her application as a CERB claim, to grant CERB in place of EI, or to modify the statutory eligibility rules governing EI. The judge stressed that, even if the situation appeared unfair from a practical standpoint, the Court could not use judicial review to bypass Parliament’s legislative framework or to rewrite the claimant’s benefit history.

In a more equitable note, the Court expressed hope that the Commission might consider exercising any available discretionary powers under the Employment Insurance legislation to mitigate Ms. Saleh’s financial burden. The judge referred to the suggestion of counsel for the Attorney General that the Commission could re-examine the file in light of the full circumstances and potentially use statutory mechanisms to alleviate the hardship arising from the mistaken EI application. This, however, was framed as a recommendation rather than a binding order.

Legal analysis of the policy terms and statutory framework

The decision revolves around the interpretation of sections 29 and 30 of the Employment Insurance Act, which govern voluntary leaving and disentitlement to benefits. Section 30 provides that a claimant is disqualified from receiving EI if they voluntarily leave without just cause, while section 29(c) elaborates that just cause exists only where quitting is the “only reasonable solution” considering all circumstances. The non-exhaustive list of circumstances in section 29(c)(i)–(xiv) includes harassment, unsafe working conditions, major changes in pay or duties, discrimination, relational conflict not mainly attributable to the claimant, illegal practices by the employer, undue employer pressure to resign, and other reasonable circumstances prescribed by regulation.

The General Division had found that Ms. Saleh’s situation—reduced hours and financial strain—did not fall within any of the enumerated examples, nor did it rise to the strict threshold of being the only reasonable solution. The Appeal Division accepted this analysis as applying the correct test. The Federal Court endorsed that approach, emphasising that financial hardship and a preference for more stable or full-time hours, while real and serious, do not automatically meet the “only reasonable solution” standard. The Court confirmed that it was not open to the Appeal Division, within its statutory limits, to substitute its own view of fairness for that of the General Division once the correct legal test had been applied to the evidence in a rational manner.

Outcome and implications for the parties

Ultimately, the Federal Court dismissed Ms. Saleh’s application for judicial review, concluding that she had not demonstrated any reviewable error in the Appeal Division’s decision. The Court held that the Appeal Division’s refusal of leave was reasonable and consistent with the governing legal framework. As a result, the General Division’s determination that she had voluntarily left her employment without just cause—and thus was not entitled to EI benefits—remains in force.

On the question of costs and monetary relief, the Court ordered that the application be dismissed without costs. No damages, costs, or monetary award of any sort were granted to either party, so the Attorney General of Canada emerged as the successful party but with no financial recovery; the total amount ordered in favour of the successful party is therefore nil, and no quantifiable monetary award can be identified beyond the formal dismissal of the claim.