Employment Insurance (EI)

Reasons and decision

Introduction

[1] On July 10, 2015, the General Division (GD) of the Social Security Tribunal of Canada (Tribunal) dismissed the Applicant’s appeal on a request to reconsider/recalculate his weekly benefit rate pursuant to section 14 of the Employment Insurance Act (EI Act). The Canada Employment Insurance Commission (Commission) had approved sickness benefits to the Applicant and calculated his weekly benefit rate at $149. The Applicant has requested reconsideration of the calculation and argued that his benefit rate should be $252. The Commission maintained its decision on reconsideration.

[2] The Applicant sent an email to the Tribunal on August 29, 2015 which stated that he had only reached a lawyer the previous day and was requesting an extension to September 8, 2015 in order to meet with the lawyer. The email also stated “calculation 6% for this and 7% so I not apply to sickness e.i.”

[3] The Tribunal sent a letter, dated September 11, 2015, to the Applicant to advise that in order for the Appeal Division (AD) of the Tribunal to consider his request for an extension of time, he would need to provide the following information:

1. Explain why the appeal is late (e.g. is there a reasonable explanation for the delay);
2. Explain how there has been a continuing intention to appeal (e.g. what steps have been taken which show the intention to appeal);
3. Explain why there is an arguable case; and
4. Explain why there is no prejudice to the other parties if the extension of time to appeal was granted.

The letter also requested other mandatory information, namely:

• Your representative’s name, address, telephone number and, if any, facsimile number and email address (if applicable);
• The grounds for the Application (the reasons you are appealing the decision);
• Any statements of fact that were presented to the General Division and that the Applicant relies on in this Application;
• Your Social Insurance Number;
• Your full address and, if applicable, facsimile number and email address (Note: if you do not have a telephone number, a written reply stating that you do not have a telephone number
• A signed declaration that the information provided is true to the best of your knowledge. You may send a declaration to the Tribunal by writing, on a blank piece of paper:
  • Your full name; and
  • The Tribunal Number (refer to number in subject line); and
  • The following declaration: “I, (full name of Applicant), declare that the information provided for appeal number (number of appeal) is true to the best of my knowledge.”

An application for leave to appeal form (Application) was attached for the Applicant’s use.

[4] The Applicant sent an email in response on September 29, 2015.  This email includes a narrative which seems to relate to some of the information requested by the Tribunal.

[5] On September 30, 2015, the Tribunal acknowledged receipt of the September 29 email, noted that the Application was not complete and advised what was required to complete the Application. The Applicant sent emails to the Tribunal on September 30, October 2, 6 and 7, 2015. The Applicant sent in the Application form on October 9, 2015 by fax. The Tribunal considered the Application complete as of October 9, 2015.

[6] The Applicant sent further emails to the Tribunal on October 22, November 6, 17, 26, 29, 30, December 1, 2, 3, 4, 7, 17, 19, 20 and 21, 2015.  The Applicant also called the Tribunal on November 2, 2015.

[7] On December 22, 2015, the Tribunal advised the Applicant that the AD Member assigned to the file had determined that the Application was missing required information, namely, an explanation of the delay in filing the appeal and the reasons for the appeal. On December 23, 2015, the Applicant replied by email and stated that he had already sent in all his information. His reply stated:

Thing you talking about all ready send by fax twice ... is it some worker having mental problem in your office.

Wath kind game you playing always asking several time same info, I thing after all thing I have done to shut down some - middle me income assistance and social service Vancouver, is time, enquiry mode on Manuel Tadros way and Efrya is over I saw her strawberry face enough, I thinking you are more intelligent , is look .... almost same, ambarassing people to receive gain from her credit work ...

I most regard given you detail fax been send, and answer same question ...

GOT TIRED YOU UNCOMPETENCE PAYING GOOD WORKER HAVING CLEAN LIFE

[8] The Applicant sent further emails to the Tribunal on December 23, 24, 27, 28 and 29, 2015 and on January 4 and 5, 2016. They did not provide any further explanation of the delay in filing the appeal or the reasons for the appeal.  There is information in some emails that appears to relate to a new EI claim being filed with the Commission which is not related to this matter and is not in the jurisdiction of the Tribunal.

Issues

[9] In order for the Application to be considered, an extension of time to apply for leave to appeal to the AD must be granted.

[10] Then, the AD must decide if the appeal has a reasonable chance of success.

Law and analysis

[11] Pursuant to subsections 57(1) and (2) of the Department of Employment and Social Development Act (DESD Act), an application must be made to the AD within 30 days after the day on which the decision appealed from was communicated to the appellant. Further, the AD may allow further time within which an application for leave is to be made, but in no case may an application be made more than one year after the day on which the decision is communicated to the appellant.

[12] According to subsections 56(1) and 58(3) of the DESD Act, “an appeal to the Appeal Division may only be brought if leave to appeal is granted” and “the Appeal Division must either grant or refuse leave to appeal.”

[13] Subsection 58(2) of the DESD Act provides that “leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.”

[14] Subsection 58(1) of the DESD Act states that the only grounds of appeal are the following:

1. (a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. (b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. (c) The General Division 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.

Extension of Time

[15] The Application was date stamped and treated as complete on October 9, 2015. While the Applicant had sent an email to the Tribunal stating an intention to appeal and requesting an extension of time within which to file an appeal, on August 29, 2015, the Application was not received until October 9, 2015.

[16] The GD decision was sent to the Applicant under cover of a letter dated July 13, 2015. The Application stated that the Applicant received the decision “likely three weeks” after the hearing date.

[17] Under paragraph 19(1)(a) of the Social Security Tribunal Regulations, I deem that the decision of the GD was communicated to the Applicant 10 days after the day on which it was mailed to him on July 13, 2015. Accordingly, I find that the decision was communicated to the Applicant on July 23, 2015.

[18] The Application was, therefore, filed 78 days after it was communicated to the Applicant, 48 days after the 30 day limit.

[19] The factors which the Tribunal considers and weighs in determining whether to extend the time period beyond the 30 day limit within which an applicant is required to file his or her application for leave to appeal are as follows:

1. (a) Whether there is a continuing intention to pursue the application or appeal;
2. (b) Whether the matter discloses an arguable case;
3. (c) Whether there is a reasonable explanation for the delay; and
4. (d) Whether there is prejudice to the other party in allowing the extension.

[20] The Applicant filed submissions attempting to address these factors.  While the Tribunal has asked for further clarification, the Applicant has replied that he has submitted everything in the past. Therefore, the AD is left to interpret the many emails of the Applicant which indicate that:

1. He attempted to consult with a lawyer but found this to be a waste of time;
2. “Your worker” made a mistake (although it is unclear what entity the worker is employed with);
3. He was busy, because he went back to work;
4. He cannot accept the benefit amount paid by the Commission as it is too low; and
5. He stays at a shelter and needs money to get a room elsewhere, some furniture and better food.

[21] In Canada (Attorney General) v. Larkman, 2012 FCA 204 (CanLII), the Federal Court of Appeal (FCA) held that the overriding consideration is that the interests of justice be served, but it also held that not all of the four questions relevant to the exercise of discretion to allow an extension of time need to be resolved in an applicant’s favour.

[22] In X, 2014 FCA 249, the FCA set out the test applicable to an extension of time, as follows, in paragraph 26:

In deciding whether to grant an extension of time to file a notice of appeal, the overriding consideration is whether the interests of justice favour granting the extension. Relevant factors to consider are whether:

1. (a) there is an arguable case on appeal;
2. (b) special circumstances justify the delay in filing the notice of appeal;
3. (c) the delay is excessive; and
4. (d)the respondent will be prejudiced if the extension is granted.

[23] In Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 4, the FCA found that an arguable case at law is akin to determining whether legally an applicant has a reasonable chance of success.

[24] As for the delay in filing the Application before the AD, an explanation for the delay has been given. While I am not sure the explanation addresses all the relevant factors suggested above, I find that the Applicant did have a continuing intention to appeal given his many communications with the Tribunal, that there are special circumstances that justify the delay in filing the Application, that the delay is not excessive, and that the Respondent will not be prejudiced if an extension of time is granted.

[25] The Applicant submits that there is an arguable case, for the reasons he gave in his Application. Since the issue of whether the appeal has a reasonable chance of success is determinative of the Application, I will discuss the issue of reasonable chance of success below.

[26] Given the specific circumstances, the length of the delay, the Applicant’s explanation, and the interests of justice, I grant an extension of time for the filing of the Application.

Application for Leave to Appeal

[27] The Application states as reasons for the appeal that:

1. The Applicant cannot accept the low benefit amount of $149 a week;
2. He stays at a shelter and needs money to get a room elsewhere, some furniture and better food;
3. He is not asking for income assistance or a social service donation; and
4. He wants to resolve this with a “yes” or “no”, and he is tired of the inquiries.

The Applicant’s many emails repeat these arguments in various forms and, also, seem to refer to matters that are unrelated to this appeal. Much of the content of the Applicant’s communications with the Tribunal resemble the email quoted in paragraph [7] above.

[28] The Application does not make reference to subsection 58(1) of the DESD Act, and it is not clear to me how the GD is alleged to have erred. The Applicant was asked to provide details on what specific errors in the GD decision are being asserted (with paragraph number and description of exact error). The Applicant did not respond in a manner from which the AD is able to glean this information.

[29] The issue before the GD was the calculation of the Applicant’s sickness benefit.

[30] During the GD hearing, the Applicant advanced similar arguments to those in the Application.

[31] The GD stated the correct legislative basis and legal tests for determining the qualifying period and calculating the rate of weekly benefits at paragraphs [5], [6], and [16] to [24] of its decision.

[32] Further, the Applicant does not state how the GD is alleged to have erred other than repeating his position that he cannot accept the low sum of benefits and needs more money. In essence, the Applicant seeks to reargue his case before the AD.

[33] Once leave to appeal has been granted, the role of the AD is to determine if a reviewable error set out in subsection 58(1) of the DESD Act has been made by the GD and, if so, to provide a remedy for that error.  In the absence of such a reviewable error, the law does not permit the AD to intervene.  It is not the role of the AD to re-hear the case de novo.  It is in this context that the AD must determine, at the leave to appeal stage, whether the appeal has a reasonable chance of success.

[34] I have read and carefully considered the GD’s decision and the record.  There is no suggestion that the GD failed to observe a principle of natural justice or that it otherwise acted beyond or refused to exercise its jurisdiction in coming to its decision. The Applicant has not identified any errors in law or any erroneous findings of fact which the GD may have made in a perverse or capricious manner or without regard for the material before it, in coming to its decision.

[35] In order to have a reasonable chance of success, the Applicant must explain how at least one reviewable error has been made by the GD. The Application is deficient in this regard, and I am satisfied that the appeal has no reasonable chance of success.

Conclusion

[36] The Application is refused.