On this page
Decision
[1] The appeal is dismissed.
Introduction
[2] On May 11, 2010 a panel of the board of referees (“the Board”) determined that the appeal of the Appellant from the previous determination of the Commission should be dismissed. On May 17, 2010, the Appellant attempted to appeal that decision to an umpire.
[3] On April 1, 2013 the Appeal Division of the Social Security Tribunal of Canada (“the Tribunal”) became seized of any appeal not heard by an umpire by that date.
[4] On November 4, 2014 a teleconference hearing was held. Although the Appellant attended and made submissions, the Commission did not. As I was satisfied that all parties had been given proper notice, I proceeded regardless.
The law
[5] To ensure fairness, this matter will be examined based upon the Appellant’s legitimate expectations at the time of the appeal to an umpire. For this reason, the present appeal will be decided in accordance with the legislation in effect immediately prior to April 1, 2013.
[6] According to subsection 115(2) of the Employment Insurance Act (“the Act”) which was in effect before April 1, 2013, the only grounds of appeal are that:
- (a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or
- (c) the board of referees based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[7] The standard of review for questions of law and jurisdiction is correctness.
[8] The standard of review for questions of fact and mixed fact and law is reasonableness.
Analysis
[9] As noted above, the Appellant first attempted to file her appeal with an umpire on May 17, 2010. Unfortunately, for reasons that are still not entirely clear to me, the appeal never reached an umpire. Instead, although it was properly filed with Service Canada, they seem to have misplaced it for over four years until it was re-discovered earlier this year and transferred to the Tribunal.
[10] I find as fact that this delay was in no way the fault of the Appellant, and can be solely attributed to Service Canada. Ultimately, however, it is my view that for the reasons below this appeal cannot succeed.
[11] Before me, the Appellant stated that she suffered significant stress due to the enormous delay. She also submitted that she received many calls from the Canada Revenue Agency (“the CRA”) attempting to collect the alleged overpayment, and that these distressed her greatly. The Appellant noted that the amount of money in question, approximately $435, must be far less than the cost of conducting this appeal and noted also that she has already paid this amount to the CRA just to make them stop calling her. Finally, she expressed her strong disappointment that the Commission couldn’t be bothered to attend the hearing.
[12] Continuing, the Appellant put forward three main arguments. First, she submitted that she never intended to mislead or defraud the Commission. Second, she submitted that she was available at all times while outside of the country. Third, she submitted that the delay alone warrants granting her appeal.
[13] The Commission, in their written submissions, makes no apology for the exceptionally long delay on this file and does not address the arguments made regarding the delay. Instead, they confine themselves to pointing out that the underlying appeal of the Appellant is without merit and should be dismissed. The Commission notes that the Appellant admitted before the Board that she was outside of Canada for a personal vacation and as such is not entitled to benefits during that period. As the disentitlement for being outside of Canada is the only Commission decision under appeal, they submit that no ground of appeal has been articulated and that therefore the decision of the Board should be upheld.
[14] On the first and second arguments presented by the Appellant, I find myself in agreement with the Commission. There is no suggestion in the file or Board decision that the Appellant misled the Commission or was not available during the period in question. The sole issue under appeal is whether or not the Appellant is entitled to receive benefits while out of Canada during the period in question. As noted by the Commission (and the Board), the Appellant admitted at the Board hearing and in writing that she was indeed outside of Canada on vacation as alleged. As such, I agree that according to s.37(b) of the Act the Appellant was not entitled to benefits during that period. These grounds of appeal cannot succeed.
[15] In her final ground of appeal, the Appellant argues that her appeal should be granted because of the delay alone. She notes that she faced repeated collections calls from the CRA and additional stress arising from not having this matter resolved one way or the other in a timely fashion. Because of this, the Appellant argues that it would be just and fair to grant her appeal.
[16] As noted above, the Commission made no written submissions on the issue of delay and did not attend the in-person hearing. As the Appellant was unrepresented, I was forced to examine the jurisprudence without the benefit of legal representation from either side. After conducting research, I am of the view that Blencoe v. British Columbia Human Rights Commission (2000 SCC 44) and Canada (Attorney General) v. Norman (2002 FCA 423) apply to this case. I have relied upon Norman in preference to Blencoe because it interprets how Blencoe applies to the employment insurance appeal regime.
[17] In Norman, the Federal Court of Appeal noted that the Supreme Court of Canada in Blencoe had found that in some cases delay could amount to an abuse of process. To show this, the court held in part that:
“…the [claimant] must demonstrate that the delay was unacceptable to the point of being so oppressive as to taint the proceedings. The determination of whether a delay had become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the [claimant] contributed to the delay or waived the delay, and other circumstances of the case.
…
Moreover, the actual prejudice caused by the delay must be of such magnitude that the public’s sense of decency and fairness is affected.”
[18] In my view, Norman stands for the proposition that although it is possible to allow an appeal for delay alone this is to be an extremely rare, perhaps almost unique, event.
[19] I readily agree that the Appellant has been treated very poorly. I also agree that a four year delay entirely due to a government administrative error may very well affect the public’s sense of decency and fairness, especially since during that time another branch of the government began aggressively attempting to recover the alleged overpayment before they were entitled to do so.
[20] I cannot, however, find any actual prejudice to the Appellant with regard to the proceedings themselves. There is no new evidence which the Appellant wanted to present but could not due to the passage of time. The evidence presented before the Board has, notwithstanding the delay, been recorded properly in the docket and to my knowledge all relevant documents are present.
[21] While I am fully prepared to conclude that this delay was unacceptable and oppressive, especially in how it affected the Appellant, I cannot conclude that it tainted the proceeding itself. Because of this, this ground of appeal must also fail.
[22] Having found no evidence to support the grounds of appeal invoked by the Appellant or any other ground of appeal, I have no power to disturb the findings of the Board.
Conclusion
[23] For the above reasons, the appeal is dismissed.