Employment Insurance (EI)

Reasons and decision

Decision

[1] Leave to appeal to the Appeal Division of the Social Security Tribunal (Tribunal) is refused.

Introduction

[2] On January 12, 2017, the General Division of the Tribunal found that the Applicant's appeal was not filed on time. The Applicant filed an application for leave to appeal to the Appeal Division on January 25, 2017.

Issue

[3] The Tribunal must decide if the appeal has a reasonable chance of success.

The law

[4] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development Act (DESDA), “An appeal to the Appeal Division may only be brought if leave to appeal is granted” and “[t]he Appeal Division must either grant or refuse leave to appeal.”

[5] Subsection 58(2) of the DESDA provides that "[l]eave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success."

Analysis

[6] The only possible grounds of appeal as set out in subsection 58(1) of the DESD Act are as follows:

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.

[7] A leave to appeal proceeding is a preliminary step to a hearing on the merits. It is a first hurdle for the Applicant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the leave stage, the Applicant does not have to prove the case.

[8] The Tribunal will grant leave to appeal if it is satisfied that any of the above grounds of appeal has a reasonable chance of success.

[9] This means that the Tribunal must be in a position to determine, in accordance with subsection 58(1) of the DESDA, whether there is a question of law, fact, or jurisdiction to which the response might justify setting aside the decision under review.

[10] In light of the foregoing, does the Applicant’s appeal have a reasonable chance of success?

[11] In his application for leave to appeal, the Applicant submits that the General Division made its decision without taking his situation into account. He was outside Canada, he was very sick, and he had no knowledge of the procedure to be followed. He provided all the evidence, documents, and medical reports that explain his delay. He states that the Respondent's reconsideration decision had been communicated to him on December 22, 2015.

[12] In refusing the Applicant's request for an extension of time, the General Division concluded the following:

[6] The Tribunal finds that the Respondent’s reconsideration decision was communicated to the Appellant once on August 27, 2015 (verbal communication) and then again on August 28, 2015 (written communication). In fact, the Appellant acknowledges in his notice of appeal that he received the written communication of August 28, 2015.

[…]

[8] The Tribunal finds that the Appellant appealed to the Tribunal’s General Division on January 4, 2017, more than one year after the decision was communicated to him. The Tribunal must apply subsection 52(2) of the DESDA, which clearly states that the General Division may allow further time within which an appeal may be brought, but in no case may an appeal be brought more than one year after the day on which the decision is communicated to the appellant.

[13] The General Division determined that it did not have the authority to extend the time to file the application for leave to appeal beyond one year pursuant to subsection 52(2) of the DESDA. Because the Respondent's reconsideration decision was communicated to the Applicant on August 27 and 28, 2015 (GD3-23, GD3-24) and because he filed his application to appeal on January 4, 2017 (GD2-1), the General Division was left with no option but to refuse the Applicant's request to extend the time to file the application for leave to appeal.

[14] In support of his application for leave to appeal to the Appeal Division, the Applicant now argues that the Respondent's reconsideration decision was communicated to him only on December 22, 2015, and he explains in detail the reasons for the delay in providing his application to appeal to the General Division.

[15] Even if the Appeal Division were to accept that the Applicant had received notice of the Respondent's reconsideration decision on December 22, 2015, his appeal to the General Division was not received until January 4, 2017, more than one year after the decision was communicated to him.

[16] In light of the foregoing reasons, and after revision of the appeal file, the General Division decision and the arguments in support of the application for leave to appeal, the Tribunal finds that the appeal does not have a reasonable chance of success.

Conclusion

[17] Leave to appeal is refused.