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Reasons and decision
Persons in attendance
The Appellant, Mr. R. P., attended the videoconference hearing.
Introduction
[1] On July 27, 2014, the Appellant applied for employment insurance regular benefits. The Canada Employment Insurance Commission (Commission) submitted that he did not provide required information so his application was not processed, his registration number was cancelled and his application was deleted.
[2] On August 1, 2014, the Appellant submitted a Request for Reconsideration to the Commission. On September 22, 2014, the Commission, responded by indicating that it cannot proceed with a reconsideration under section 112 of the Employment Insurance Act (EI Act) because it had not yet made an initial decision.
[3] At the same time, on August 11, 2014, the Appellant appealed to the General Division of the Social Security Tribunal (Tribunal). On August 28, 2014, the Appellant also filed a Notice of Appeal with the Appeal Division of the Tribunal however it was deemed premature and the appeal was returned to the General Division.
[4] On November 7, 2014, the Member proceeded with a Question and Answer hearing. Both parties responded by providing written submissions (GD7 to GD14). On January 6, 2015, the Appellant raised potential Charter issues (GD14-10). As a result, on February 3, 2015, the Question and Answer hearing was adjourned (GD16).
[5] The Appellant was sent a copy of the docket, and on March 13, 2015, a prehearing conference was held with both parties in order to clarify the potential Charter issues raised in the Appellant’s appeal, to discuss the requirements under section 20 of the Social Security Tribunal Regulations and to determine next steps (GD25). On July 15, 2015, the Appellant was provided with the opportunity to submit the required notice with respect to the potential constitutional challenge by September 30, 2015, however; he did not respond (GD30 and GD31).
[6] The Appellant’s appeal therefore proceeded as a regular appeal and it was set down to be heard. The Appellant’s requests for two adjournments of the February 10 and 11, 2016 hearings (and change in location) were granted. He then inadvertently missed his hearing of March 3, 2016 (GD32, GD32A and GD34). The Member was able to immediately reschedule the hearing for March 4, 2016 (GD35).
[7] The hearing was held by videoconference because of (a) the complexity of the issue under appeal and (b) the form of hearing respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.Issue
[8] The Member must decide whether the Commission must reconsider its decision to not establish a claim pursuant to section 112 of the EI Act.
The law
[9] Section 2 of the EI Act defines a ‘claimant’ is a person who applies or has applied for benefits under the EI Act.
[10] Subsection 48(1) of the EI Act stipulates that no benefit period shall be established for a person unless the person makes an initial claim for benefits in accordance with section 50 and the regulations and proves that the person is qualified to receive benefits
[11] Subsection 48(2) of the EI Act stipulates that no benefit period shall be established unless the claimant supplies information in the form and manner directed by the Commission, giving the claimant’s employment circumstances and the circumstances pertaining to any interruption of earnings, and such other information as the Commission may require.
[12] Subsection 48(3) of the EI Act stipulates that on receiving an initial claim for benefits, the Commission shall decide whether the claimant is qualified to receive benefits and notify the claimant of its decision.
[13] Subsection 49(1) of the EI Act stipulates that a person is not entitled to receive benefits for a week of unemployment until the person makes a claim for benefits for that week in accordance with section 50 and the regulations and proves that
- (a) the person meets the requirements for receiving benefits; and
- (b) no circumstances or conditions exist that have the effect of disentitling or disqualifying the person from receiving benefits.
[14] Subsection 49(3) of the EI Act stipulates that on receiving a claim for benefits, the Commission shall decide whether benefits are payable to the claimant for that week and notify the claimant of its decision.
[15] Subsection 50(1) of the EI Act stipulates that a claimant who fails to fulfil or comply with a condition or requirement under this section is not entitled to receive benefits for as long as the condition or requirement is not fulfilled or complied with.
[16] Subsection 50(3) of the EI Act stipulates that a claim for benefits shall be made by completing a form supplied or approved by the Commission, in the manner set out in instructions of the Commission.
[17] Subsection 50(5) of the EI Act stipulates that the Commission may at any time require a claimant to provide additional information about their claim for benefits.
[18] Subsection 50(6) of the EI Act stipulates that the Commission may require a claimant or group or class of claimants to be at a suitable place at a suitable time in order to make a claim for benefits in person or provide additional information about a claim.
[19] Subsection 50(9) of the EI Act stipulates that a claimant shall provide the mailing address of their normal place of residence, unless otherwise permitted by the Commission.
[20] Subsection 112(1) of the EI Act states that a claimant or other person, who is the subject of a decision of the Commission, or the employer of the claimant, may make a request to the Commission in the prescribed form and manner for a reconsideration of that decision at any time within:
- (a) 30 days after the day on which a decision is communicated to them; or
- (b) any further time that the Commission may allow.
[21] Subsection 112(2) of the EI Act stipulates that the Commission must reconsider its decision if a request is made under subsection (1).
[22] Section 113 of the EI Act stipulates that a party, who is dissatisfied with a decision of the Commission made under section 112, including a decision in relation to further time to make a request, may appeal the decision to the Social Security Tribunal established under section 44 of the Department of Employment and Social Development Act.
Evidence
[23] On June 27, 2014, the Appellant applied for employment insurance regular benefits. On his application form he did not indicate his gender noting it is not applicable and provided a post office box number in X, Ontario and postal code as his mailing and residential addresses. The Appellant indicated that due to shortage of work as a Computer Technician, his last day of work was June 20, 2014 (GD3-3 to GD3-6).
[24] On July 1, 2014, the Appellant was invited to an interview with the Commission’s Integrity Services Investigator in order to provide information regarding his social insurance number (SIN) which the Commission indicated had not been used by a Government agency for at least 5 years (GD3-7).
[25] On July 17, 2014, the Appellant agreed to attend the interview without prejudice to his position, noting that he had confirmed his identity on at least 5 occasions and that pursuant to section 50 (or any other section) of the EI Act, there is no requirement that a person use a Government agency within 5 years of applying for benefits, in order to obtain benefits (GD3-11). After the meeting with the Investigator, the Appellant indicated that (a) he is, and always has been a resident of X, Ontario however; providing a physical address is not a requirement under subsection 50(9) of the EI Act; this is the only mailing address he has and he does not receive mail anywhere else (b) he was advised that his SIN was ‘dormant’ but was not provided with the source of that information or why and how the term ‘dormant’ has any power/authority regarding his application and (c) his birthdate on his application form is correct and has never been under dispute throughout his life. The Investigator referred to a copy of his original SIN application form that shows a different birthdate however, she would not give him a copy. He questioned why he was not notified that there was a request for this information by the Commission under the related privacy legislation. He therefore, will not submit an application to amend his SIN information. He has applied for and received benefits in the past (since 1965) using the same SIN which has always been acceptable. He is very protective of his privacy and wishes to be accommodated (GD3-13 to GD3-20).
[26] On August 1, 2014, the Appellant submitted a Request for Reconsideration to the Commission. He indicated that the Commission has made his application/claim for benefits a nullity and that on July 30, 2014; he was verbally advised that his claim was cancelled/deleted without explanation or notice. He noted that he properly identified himself with government identification (driver’s license and birth certificate) and that there is no authority to cancel/delete his claim other than him doing it himself (GD3-22 and GD3-23). The Appellant also provided his account of the July 25, 2014 interview with the Commission’s Integrity Investigator (GD3-30 to GD3-35).
[27] On August 14, 2014, the Commission indicates in its Record of Claim that the Appellant’s application for benefits “has been cancelled” because he did not provide a residential address. It indicated that the “initial registration number was cancelled and the paper application deleted in NWS”. The Commission agent notes that since a claim was not established, no further action will be taken (GD3-43).
[28] In his notice of appeal to the Tribunal, the Appellant indicates that the Commission has unlawfully deleted his application for benefits causing it to be a nullity. He reiterates that he has not been notified of the decision and has not been provided with reasons. The Appellant recounts the events leading up to this appeal and notes that he has also not received a response to his request for reconsideration (GD2-9 to GD3-11).
[29] On September 22, 2014, the Commission advised the Appellant by letter that it cannot proceed with his request for reconsideration because it had not yet made an initial decision (GD3-44).
[30] On November 7, 2014, the Member conducted a Question and Answer hearing, and asked the Commission to respond to the following three questions:
- Please explain how your action “to cancel” the Claimant’s application for benefits and/or to not establish a claim, is not a decision?
- When was the Claimant’s application “cancelled”? Was this communicated to the Claimant? Please provide the authority for cancelling the application.
- Why did you not perform an administrative review pursuant to section 112 of the Employment Insurance Act?
[31] On November 19, 2014, the Commission responded by indicating that according to subsection 48(2) of the EI Act, a benefit period shall not be established unless the claimant supplies information in the form and manner directed by the Commission. In this case, the Appellant’s identity could not be verified so his application was not processed. The Commission contends that a ‘decision’ was not rendered since the application process was incomplete. It therefore, submits that reconsideration under section 112 of the EI Act is inapplicable, and there is no decision to appeal under section 113 to the Tribunal. The Commission verbally advised the Appellant but did not notify him in writing. The Commission notes that the Appellant’s recourse is to provide the requested information to the Commission so that the application can be processed and a decision rendered (GD7).
[32] At the present hearing, the Appellant testified that the Commission did make a decision. It made the decision to delete his file. The Commission did not fulfill its responsibilities as indicated on its website that it will advise of any decisions and provide reasons. In fact, the Commission has not stated what information has not been provided by him.
[33] He testified that he has provided all that was asked by the Commission (1) they took copies of his birth certificate and driver’s license (2) provide a mailing address which is in compliance of subsection 50(9) of the EI Act (3) he was advised his SIN was dormant but questions how that can be the case if he has been working and filing taxes (4) he has documents from his Old Age Security (OAS) approving him for benefits using his SIN and post office box as his mailing address. He doesn’t understand the problem he is having with the Commission. The Appellant finds it ironic that the Commission’s mailing address is a post office box as well.
[34] The Appellant stated that he finds it unfair that he has to start from the beginning after waiting two years in this process. He asked that, if it is within the Tribunal’s authority, he be granted $10,000.00 in punitive damages.
[35] The Appellant confirmed that he is not pursuing a Charter appeal with the Tribunal.
[36] On March 30, 2016, the Appellant submitted documentary evidence obtained through Access to Information and Privacy (ATIP). He notes that the Commission lied and withheld evidence from both him and the Tribunal and submitted that in a Supplementary Record of Claim dated October 7, 2014 the Benefits Officer indicated that “no decision has been made at this time as no claim has been established …” (GD37-5). The Appellant notes however that a decision had been made on July 18, 2014 in a Record of Decision that indicates “claim cancelled” (GD37-6).
Submissions
[37] The Appellant submitted that he has complied with all the requirements to qualify for benefits in accordance with the EI Act. The Commission has made a decision, that is, to delete his claim application. The Commission has not given notice of its decision or provided reasons for deleting his claim. The Commission does not have the statutory authority to delete a claim application. By doing so, its actions are an abuse of power and process and contrary to natural justice (GD2). The Commission’s vexatious actions of not processing his claim and then by not reconsidering its decision, should not be condoned and needs to be addressed in a punitive manner (GD37).
[38] The Commission submitted that a ‘decision’ was not rendered since the application process was not completed and a claim was not established. A reconsideration under section 112 of the EI Act is not applicable, and there is no decision to appeal under section 113 to the Tribunal. According to subsection 48(2) of the EI Act, a benefit period shall not be established unless the claimant supplies information in the form and manner directed by the Commission. Since the Appellant’s identity could not be verified, his SIN was dormant for the last 5 years and he refused to provide his residential address, gender and whereabouts the last 5 years, his application for benefits was cancelled. The Commission verbally advised the Appellant but did not notify him in writing (GD4 and GD7).
Analysis
[39] It is the Commission’s position that it is not within the Tribunal’s jurisdiction to consider the Appellant’s appeal under section 113 of the EI Act because it has yet to make a reconsideration decision under section 112 of the EI Act.
[40] According to section 113 of the EI Act, a party who is dissatisfied with a decision of the Commission made under section 112, including a decision in relation to further time to make a request, may appeal that decision to the Social Security Tribunal established under section 44 of the Department of Employment and Social Development Act. The Appellant in this case, made a request to the Commission in the prescribed form for a reconsideration of its decision to which he was subject pursuant to subsection 112(1) of the EI Act. According to subsection 112(2), the Commission must then reconsider its decision. The Member finds that by refusing to do a reconsideration decision under section 112 of the EI Act, the Commission has rendered a decision. That is, it has decided to not reconsider its decision to cancel the Appellant’s claim. By doing so, the Tribunal has jurisdiction to consider the Appellant’s appeal pursuant to section 113 of the EI Act.
[41] The Member next considered that the Appellant in this case, is an individual who has come to the Commission with an application for employment insurance regular benefits. According to section 2 of the EI Act, a ‘claimant’ is a person who has applied for benefits under the EI Act. The Member finds therefore, that the Appellant is a ‘claimant’ under the EI Act.
[42] The Appellant/Claimant filed an application for benefits with the Commission, who in turn, requested information from the Appellant, as it has the right to do pursuant to section 48, 49 and 50 of the EI Act. The Commission contends that a benefit period shall not be established unless the Appellant provides information in the form and manner directed by the Commission pursuant to subsection 48(2) of the EI Act. The Commission submitted that the Appellant did not provide the required information so he was verbally advised that his application for benefits was cancelled since the application process was incomplete. It is the Commission’s position that at a “decision” was therefore not rendered because the Appellant did not provide the required information, and as result, the application process was incomplete (GD7). The Appellant, on the other hand, submitted that the Commission does not have the authority to delete/cancel/nullify his application for benefits. He contends that, by doing so, the Commission did make an initial decision. It decided to delete his claim. The Commission did not notify him, or provide him with reasons for its decision.
[43] The Member agrees with the Appellant and finds that the Commission does not have the authority to simply delete or cancel an application for benefits because it is incomplete, for whatever reason. The purpose of sections 48, 49 and 50 of the EI Act is to set out the procedure and requirements for filing an initial claim for benefits. These sections provide the Commission with the authority to not establish a benefit period or pay benefits pursuant to sections 48 and 49 of the EI Act, unless the claimant makes an initial claim for benefits in accordance with section 50 and the regulations and proves that he/she qualified to receive benefits. Further, subsection 48(3) of the EI Act stipulates that upon receiving an initial claim for benefits, the Commission shall decide whether the claimant is qualified to receive benefits and notify the claimant of its decision. The Commission must therefore, make a decision on every initial claim for benefits it receives one way or another, and cannot delete or cancel an application because the process was not completed and/or the required information was not provided since it has the authority to make a decision based on those grounds under section 48, 49 and 50 of the EI Act.
[44] The Member finds that the Commission did make an initial decision to not establish a benefit period for following two reasons:
[45] First, the Commission took action on the file and deleted/cancelled the claim. This is supported by the Record of Decision of July 18, 2014 that indicates that the claim was cancelled (GD37-6). Plus, the Record of Claim dated August 14, 2014, indicated that the “initial registration number was cancelled and the paper application deleted in NWS” (GD3-43). The Member is of the opinion that if no decision was made, or one was yet to be made, the Appellant’s initial registration number would have been maintained while his application remained incomplete and until a decision was eventually rendered.
[46] Second, in response to the Member’s questions during the Question and Answer hearing, the Commission submitted that it cancelled the claim pursuant to subsection 48(2) of the EI Act, noting that this subsection stipulates that a benefit period shall not be established unless the claimant supplies information in the form and manner directed by the Commission. The Member also considered however, that according to subsection 48(3), upon receiving an initial claim for benefits, the Commission shall decide whether the claimant is qualified to receive benefits and notify the claimant of its decision. In this case, the Commission, on receiving the initial application, decided that the Appellant had not made his initial claim in accordance with the requirements of 48(2) and section 50 of the EI Act and “cancelled” the claim. The Member finds that by doing so, it made the decision that the Appellant does not qualify for benefits under subsection 48(3) of the EI Act.
[47] Since the Appellant is subject to this decision, and since the Appellant has made a request to the Commission in the prescribed form and manner for a reconsideration of this decision pursuant to subsection 112(1) of the EI Act, the Commission must reconsider this decision pursuant to subsection 112(2) of the EI Act.
[48] The Tribunal does not have the authority to grant punitive damages.
Conclusion
[49] The Commission must reconsider its decision regarding the Appellant’s initial claim for benefits pursuant to subsection 112(2) of the EI Act. The Member recommends that during the reconsideration process, the Commission clearly list and inform the Appellant of what information it requires of him.
[50] The appeal is allowed.