Naqvi v. Canada (Attorney General)

Naqvi v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2024-12-16
Neutral citation
2024 FC 2038
File numbers
T-543-24
Decision Content
Date: 20241216
Docket: T-543-24
Citation: 2024 FC 2038
Ottawa, Ontario, December 16, 2024
PRESENT: The Honourable Madam Justice Turley
BETWEEN:
SYED ALI NAQVI
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Overview [1] The Applicant, a self-represented litigant, seeks judicial review of a decision of the Social Security Tribunal’s Appeal Division [Appeal Division] denying his application for leave to appeal a decision of the Tribunal’s General Division. The General Division upheld the Employment Insurance Commission’s [Commission] decision to deny the Applicant employment insurance [EI] benefits.
[2] In October 2022, the Applicant quit his job as a field technician in Fort McMurray, Alberta, after working for four months. His application for EI benefits was denied by the Commission on the basis that he left his job without just cause as defined in section 30 of the Employment Insurance Act, SC 1996, c 23 [Act]. The Applicant sought reconsideration of that decision, but the Commission maintained its finding that he had voluntarily left his employment.
[3] The General Division dismissed the Applicant’s appeal because he did not demonstrate just cause for leaving his employment in accordance with the Act. It found that the Applicant had “reasonable alternatives to leaving”: Social Security Tribunal of Canada, General Division – Employment Insurance Section Decision dated May 13, 2023 at para 2 [General Division Decision].
[4] The Appeal Division refused leave to appeal because an appeal had “no reasonable chance of success” pursuant to subsection 58(2) of the Department of Employment and Social Development Act, SC 2005, c 34 [DESDA]. As a preliminary issue, it determined that it could not accept new medical evidence that was not before the General Division: Social Security Tribunal of Canada, Appeal Division – Leave to Appeal Decision dated September 18, 2023 at paras 7–10 [Appeal Division Decision]. On the merits, the Appeal Division determined that the General Division had not breached procedural fairness, nor made an error of jurisdiction, an error of law, or an error of fact: Appeal Division Decision at paras 18–37.
[5] While I am sympathetic to the Applicant’s situation, there is no legal basis for me to interfere with the Appeal Division’s decision. I must therefore dismiss the application.
II. Issues and Standard of Review
[6] The presumptive standard of review for administrative decisions is that of reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 16 [Vavilov]; Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at para 7 [Mason]. A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”: Vavilov at para 85; Mason at para 8. A decision should only be set aside if there are “sufficiently serious shortcomings” such that it does not exhibit the requisite attributes of “justification, intelligibility and transparency”: Vavilov at para 100; Mason at paras 59–61.
[7] There are two issues for determination. First, whether the Appeal Division erred in refusing to accept the Applicant’s new evidence. The Applicant argues that the Appeal Division erred in finding that his evidence did not fit within any of the exceptions recognized in the jurisprudence. As framed, this alleged error is reviewable on the standard of reasonableness.
[8] Second, whether the Appeal Division erred in denying leave to appeal because it found that an appeal had no reasonable chance of success. It is well established that the standard of reasonableness applies to the merits of Appeal Division decisions denying leave to appeal: Cecchetto v Canada (Attorney General), 2024 FCA 102 at para 4 [Cecchetto]; Kuk v Canada (Attorney General), 2024 FCA 74 at para 5; Bhamra v Canada (Attorney General), 2023 FCA 121 at para 3; Uvaliyev v Canada (Attorney General), 2021 FCA 222 at para 7.
III. Analysis A. The legislative framework [9] Claimants who voluntarily leave their jobs without just cause are disqualified from receiving EI benefits: Act, s 30(1). What constitutes “just cause” is governed by paragraph 29(c) of the Act. According to the Federal Court of Appeal, “[t]he test for determining whether an individual had ‘just cause’ under section 29 of the Act is whether, having regard to all the circumstances, on a balance of probabilities, the claimant had no reasonable alternative to leaving the employment”: Canada (Attorney General) v Macleod, 2010 FCA 301 at para 2. Demonstrating that quitting is the only reasonable option is “an essential condition” of paragraph 29(c) of the Act: Canada (Attorney General) v Hernandez, 2007 FCA 320 at para 2.
[10] The circumstances listed in subparagraphs 29(c)(i) to (xiv) of the Act are to be considered in assessing whether the claimant had any other reasonable alternative to quitting: Bossé v Canada (Attorney General), 2019 FC 137 at para 28. Furthermore, the jurisprudence “imposes an obligation on claimants, in most cases, to attempt to resolve workplace conflicts with an employer, or to demonstrate efforts to seek alternative employment before taking a unilateral decision to quit a job”: Canada (Attorney General) v White, 2011 FCA 190 at para 5 [White].
B. The Appeal Division’s decision is reasonable [11] As set out below, I find that the Appeal Division’s decision is reasonable. It did not err in refusing to accept the Applicant’s new evidence, nor did it err in finding that the Applicant had failed to establish an arguable case that the General Division made any reviewable errors.
(1) The Appeal Division did not err in refusing to accept the new evidence [12] The Applicant argues that the Appeal Division erred in refusing to accept new medical evidence that was not before the General Division. I cannot agree. The Appeal Division’s decision in this regard is justified in relation to the constraining facts and law: Vavilov at para 85.
[13] Relying on the Federal Court of Appeal’s jurisprudence, the Appeal Division determined that generally it cannot accept new evidence: Appeal Division Decision at para 8. Rather, the evidence is limited to what was before the General Division: Sibbald v Canada (Attorney General), 2022 FCA 157 at paras 39–40 [Sibbald]. This is because “under the rules set by Parliament, hearings before the Appeal Division are not redos based on updated evidence of the hearings before the General Division. They are instead reviews of General Division decisions based on the same evidence”: Gittens v Canada (Attorney General), 2019 FCA 256 at para 13.
[14] As the Appeal Division recognized, there are limited exceptions to this general rule, including: (i) providing general background information; (ii) highlighting the complete absence of evidence before the decision-maker below; or (iii) demonstrating procedural unfairness in the decision-making process: Sibbald at para 37; Bernard v Canada (Revenue Agency), 2015 FCA 263 at paras 13–25; Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras 18–20. Here, the Appeal Division reasonably found that the medical note did not fall within any of these narrow exceptions.
(2) The Appeal Division did not err in finding the proposed appeal had no reasonable chance of success [15] The Appeal Division can only grant leave to appeal if the proposed appeal has a reasonable chance of success on at least one of the grounds listed in subsection 58(1) of the DESDA: Cecchetto at para 5. These grounds are: (a) failure to observe a principle of natural justice or otherwise acting beyond or refusing to exercise its jurisdiction; (b) an error of law; or (c) an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.
[16] A “reasonable chance of success” has been interpreted as “having some arguable ground upon which the proposed appeal might succeed”: Osaj v Canada (Attorney General), 2016 FC 115 at para 12; see also: Fancy v Canada (Attorney General), 2010 FCA 63 at paras 2–3; Gloglo v Canada (Attorney General), 2024 FC 1923 at para 35; Dubeau v Canada (Attorney General), 2019 FC 725 at para 28.
[17] The Applicant argued that the General Division made the following errors: a breach of procedural fairness, an error of jurisdiction, an error of law, and an error of fact. I find that, after considering each of these arguments in turn, the Appeal Division reasonably concluded that an appeal of the General Division’s decision had no reasonable chance of success. The Appeal Division’s decision falls within the range of possible, acceptable outcomes which are defensible based on the facts and the law: Vavilov at para 86.
(a) No breach of procedural fairness [18] The Appeal Division did not accept the Applicant’s argument that the General Division breached procedural fairness in failing to consider medical evidence submitted post-hearing. As the Appeal Division pointed out, the General Division expressly allowed this post-hearing submission of evidence: Appeal Division Decision at paras 20, 22. While the General Division found the notes difficult to read, it nevertheless considered them and ultimately concluded that this evidence “[did] not link [the Applicant’s] work or working conditions to any infections he may have had before quitting work”: General Division Decision at para 34. The General Division did not ignore this evidence in rendering its decision. Consequently, the Appeal Division held that there was no reasonable chance of success on this procedural fairness ground. I agree.
(b) No error of jurisdiction [19] The Applicant failed to establish that the General Division made an error of jurisdiction. As the Appeal Division determined, the General Division “only decided the issues that it had the authority to decide”: Appeal Division Decision at para 27. There was no suggestion that the General Division exceeded its jurisdiction in this case. As such, the Appeal Division reasonably concluded that there was no reasonable chance of success on this ground of appeal.
(c) No error of law [20] The Appeal Division further rejected the Applicant’s argument that the General Division erred in law in finding that he did not have just cause to leave his job because he had reasonable alternatives to quitting. The onus was on the Applicant to establish just cause: Canada (Attorney General) v Patel, 2010 FCA 95 at paras 7–8. The General Division correctly stated, “[h]aving a good reason for leaving a job isn’t enough to prove just cause”: General Division Decision at para 13.
[21] As set out in paragraphs 9–10 above, the test for determining “just cause” under the Act is whether, on a balance of probabilities, a claimant had no reasonable alternative to leaving their employment. Subsection 29(c) of the Act sets out relevant circumstances for consideration. The Applicant argued that the following three circumstances applied to his situation: (i) subparagraph 29(c)(iv) — danger to health and safety; (ii) subparagraph 29(c)(ii) — obligation to accompany his spouse to another residence; and (iii) subparagraph 29(c)(viii) — excessive overtime. The General Division considered these circumstances individually, ultimately finding that the Applicant had failed to establish each of them: General Division Decision at paras 21–51.
[22] The Applicant’s arguments regarding health and safety do not point to any errors in the Appeal Division’s decision. He essentially asserts that his evidence is sufficient. While the medical notes do show that he was seriously ill, there is no indication that either his weight loss or pneumonia were caused by the job. The General Division reasonably found that without establishing this link, the Applicant failed to discharge his onus of proving intolerable working conditions or detrimental health effects: Re Cartier, CUB 26602; Re Keenleyside, CUB 26604; Re Mitton, CUB 25574.
[23] The Applicant argues that the General Division erred in finding that he did not have an obligation to accompany his spouse to another residence. While I appreciate that he and his wife wanted him to return to the family home in Edmonton, this is not what is envisaged by an “obligation” under subparagraph 29(c)(ii) of the Act. A claimant must establish that they are motivated by something more than just personal choice: Re Ledrew, CUB 58277; Re Hunter, CUB 42390A. Here, the Applicant knew when he accepted the job that it required moving from Edmonton to Fort McMurray.
[24] In terms of excessive overtime, the General Division determined that there was “no evidence that for his work situation as a field technologist in Fort McMurray Alberta there was excessive overtime. Working 12 hours [sic] days would be more the norm than the exception in that type of work environment”: General Division Decision at para 48. The evidence shows that the Applicant understood that the job would require long hours when he accepted it.
[25] The General Division ultimately determined that the Applicant had reasonable alternatives to quitting his job. The Applicant misapprehends what “no reasonable alternative to quitting” means in the Act. He asserts that his employer had no jobs other than ones in the field and thus that there was no alternative but to quit. However, establishing no reasonable alternative to quitting is not simply about asking the present employer for another position. Generally, a claimant must demonstrate efforts to seek alternative employment before taking a unilateral decision to quit a job: White at para 5; Canada (Attorney General) v Murugaiah, 2008 FCA 10 at para 9; Canada (Attorney General) v Campeau, 2006 FCA 376 at para 20.
[26] Here, the General Division determined that the following reasonable alternatives were open to the Applicant before voluntarily leaving his job: (i) requesting a leave of absence from his employer; (ii) asking his employer for more robust winter weather gear; (iii) consulting a physician about his health concerns and potentially obtaining sick leave; and (iv) using time off to find a new job before quitting his old one: General Division Decision at paras 63–66.
[27] The Appeal Division concluded that it was “not arguable that the General Division made an error of law” as it “stated and applied the law correctly when it decided that the [Applicant] did not have just cause to leave his job”: Appeal Division Decision at para 33. The Applicant has failed to establish that the Appeal Division’s decision is unreasonable in this regard.
(d) No error of fact [28] Finally, the Applicant argues that the Appeal Division erred in failing to find that the General Division made an error of fact. In accordance with paragraph 58(1)(c) of the DESDA, the Appeal Division can only grant leave to appeal where the General Division bases its decision on erroneous factual findings “made in a perverse or capricious manner or without regard to the material before it.” This has been articulated as “a more stringent test than evidentiary reweighing and asks the [Appeal Division] to consider whether the factual findings of the General Division were unreasonable, not whether they were incorrect”: Garvey v Canada (Attorney General), 2018 FCA 118 at para 5 [Garvey].
[29] The Federal Court of Appeal further explained the test as follows in Walls v Canada (Attorney General), 2022 FCA 47:
[40] On the second error, it is important to be reminded of the meaning of “perverse or capricious” as set out in the grounds for appeal at subsection 58(1) of the DESD Act.
[41] This Court has held that a perverse or capricious finding of fact is one where the finding squarely contradicts or is unsupported by the evidence (Garvey v. Canada (Attorney General), 2018 FCA 118, [2018] FCJ No 626 (QL) at para. 6). In the recent decision of Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161, at paragraphs 122 and 123, referring to paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7 and to Rohm & Haas Canada Limited v. Canada (Anti-Dumping Tribunal) (1978), 1978 CanLII 2028 (FCA), 22 N.R. 175, 91 D.L.R. (3d) 212, this Court considered the meaning of “made in a perverse or capricious manner or without regard to the material before [the decision maker]” in a similar context of determining whether there was a basis for intervention of erroneous factual findings from an administrative decision-maker. In this passage, this Court explained that the notion of “perversity” has been interpreted as “willfully going contrary to the evidence”. The notion of “capriciousness” or of the factual findings being made without regard to the evidence would include “circumstances where there was no evidence to rationally support a finding or where the decision maker failed to reasonably account at all for critical evidence that ran counter to its findings.”
[Emphasis added]
[30] The Applicant failed to establish that the General Division made any such errors of fact in this case. The General Division did not overlook or misconstrue evidence. Essentially, the Applicant disagrees with the General Division’s assessment of the evidence. However, as the Appeal Division correctly held, “that alone doesn’t allow [the Appeal Division] to intervene” under section 58 of the DESDA: Appeal Division Decision at para 37. The Appeal Division is not entitled to reassess or reweigh the evidence: Garvey at para 11. On this basis, it reasonably held that the Applicant had no reasonable chance of success on appeal on this ground.
IV. Conclusion [31] Based on the foregoing, I am unable to find any reviewable errors in the Appeal Division’s decision. As a result, the application is dismissed.
[32] The Respondent did not seek costs, and I agree that, in the circumstances, none should be payable by the Applicant.
JUDGMENT in T-543-24
THIS COURT’S JUDGMENT is that the application is dismissed without costs.
“Anne M. Turley”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
T-543-24
STYLE OF CAUSE:
SYED ALI NAQVI v ATTORNEY GENERAL OF CANADA
PLACE OF HEARING:
Edmonton, Alberta
DATE OF HEARING:
December 10, 2024
jUDGMENT AND REASONS:
TURLEY J.
DATED:
DECEMBER 16, 2024
APPEARANCES:
Syed Ali Naqvi
FOR THE APPLICANT ON HIS OWN BEHALF
Ian McRobbie
For The Respondent
SOLICITORS OF RECORD:
Attorney General of Canada Gatineau, Quebec
For The Respondent