On this page
Reasons and decision
[1] Previously, a member of the General Division dismissed the Applicant’s appeal. In due course, the Applicant filed an application requesting leave to appeal to the Appeal Division.
[2] Subsection 58(1) of the Department of Employment and Social Development Act (Act) states that the only grounds of appeal are that:
- (a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- (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.
[3] The Act also states that leave to appeal is to be refused if the appeal has “no reasonable chance of success”.
[4] This is not an ordinary file.
[5] The Applicant in this matter was a member of a large and extremely complex group appeal. I issued a decision in that matter in 2014 (the 2014 decision) which, on consent, resolved the main legal points in dispute and established a special regime for dealing with any remaining outstanding issues. This special regime included generous timelines to request a reconsideration from the Commission, but it specifically excluded any challenge to the agreed-upon resolution of the main legal issues.
[6] I note that out of approximately 2,400 initial appellants who were given access to this special regime, only four (4) have requested leave to appeal to the Appeal Division.
[7] Beyond the deadline set in the 2014 decision, the Applicant attempted to avail herself of the special regime. The Commission, noting the missed deadline, refused to reconsider the Applicant’s file. The General Division upheld that determination, substantially for the same reasons.
[8] In her application for leave to appeal, the Applicant stated only that she wanted someone to listen to her story and perhaps to have her debt written off.
[9] Because these initial submissions did not set out a ground of appeal which had a reasonable chance of success, Tribunal staff contacted the Applicant by letter to seek further details. Specifically, the Tribunal letter asked that the Applicant provide full and detailed grounds of appeal as required by the DESDA, and provided examples of what constitutes grounds of appeal. The Tribunal letter also noted that if this was not done, the application could be refused without further notice.
[10] In reply, the Applicant alleged that she did not receive the earnings which the Commission stated that she did. She also repeated her request for a write-off of her debt.
[11] I note (as did the General Division member) that the Applicant submitted to the General Division that she had not been made aware of the 2014 decision until she received a notice of debt from the Commission. This was well after the deadline set in the 2014 decision had passed.
[12] Essentially, the Applicant argued that because neither her own counsel nor the Tribunal ever successfully communicated the 2014 decision to her, natural justice requires that she be granted an extension of time to request the reconsideration authorized by the 2014 decision.
[13] Because of the unique nature of the facts of this case, I find that the Applicant’s arguments are not, on their face, destined to fail.
[14] Although of course I make no substantive finding at this stage, legal arguments regarding the Applicant’s natural justice rights have been raised which have a reasonable chance of success. For that reason, I am prepared to grant leave to appeal to ensure that these rights have been fully respected by the Tribunal throughout the lengthy appeal process.
[15] I would remind the Applicant, however, that according to s. 112.1 of the Employment Insurance Act, I have no ability to write off or forgive her debt.
[16] I encourage the Applicant to concentrate her submissions on the issue at hand: whether or not she is entitled to have the Commission reconsider her case, given the provisions of the 2014 decision.
[17] Following the receipt of written submissions from the parties, I will determine if an oral hearing is necessary.