Employment Insurance (EI)

Decision

[1] The appeal is allowed. The matter will be returned to the General Division for reconsideration.

Introduction

[2] Previously, a member of the General Division determined that the Appellant’s appeal should be dismissed. In due course, the Appellant filed an application for leave to appeal with the Appeal Division and leave to appeal was granted.

[3] This appeal was decided on the record.

The law

[4] According to subsection 58(1) of the Department of Employment and Social Development Act, the only grounds of appeal are that:

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.

Analysis

[5] This appeal concerns whether or not the Commission properly refused to grant the Appellant an approximately four (4) year extension of time to file her request for reconsideration.

[6] Having considered the General Division decision, the Commission admits that in upholding their initial determination the General Division member failed to state and apply the correct law as he should have. Further, the Commission also admits that they themselves failed to determine and apply the correct law as they should have. They ask, however, that I give the decision that the General Division member (and they) should have given and dismiss the appeal.

[7] I agree with the Commission that both they and the General Division member erred by not considering and properly applying the Reconsideration Request Regulations and that therefore both decisions must be rescinded.

[8] I do not agree, however, that I should give the decision myself instead of returning the file to the General Division. The Appellant deserves the opportunity to make her case in full before a General Division member.

Conclusion

[9] For the above reasons, the appeal is allowed. The matter is returned to the General Division for reconsideration.