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Reasons and decision
Decision
[1] The Social Security Tribunal of Canada (Tribunal) dismisses the appeal.
Introduction
[2] On March 13, 2017, the Tribunal's General Division found that the appeal before the Tribunal's General Division had not been brought within the time limit set out in subsection 52(2) of the Department of Employment and Social Development Act (DESD Act).
[3] The Appellant filed an application for leave to appeal to the Appeal Division on April 10, 2017. Leave to appeal was granted on June 2, 2017.
Type of hearing
[4] The Tribunal determined that the appeal would be heard via teleconference for the following reasons:
- the complexity of the issue or issues;
- the fact that the parties’ credibility was not a key issue;
- the cost-effectiveness and expediency of the hearing choice;
- the need to proceed as informally and as quickly as possible while complying with the rules of natural justice.
The law
[6] According to subsection 58(1) of the DESD Act, the only grounds of appeal are the following:
- 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;
- 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.
Issue
[7] Did the General Division err in finding that the Appellant's appeal before the Tribunal's General Division had not been brought within the time limit set out in subsection 52(2) of the DESD Act?
Standard of review
[8] The Federal Court of Appeal determined that the Appeal Division's mandate is conferred to it by sections 55 to 69 of the DESDA. The Appeal Division cannot exercise the review and superintending powers reserved for higher courts—Canada (Attorney General) v. Jean, 2015 FCA 242; Maunder v. Canada (Attorney General), 2015 FCA 274.
[9] Therefore, unless the General Division failed to observe a principle of natural justice, erred in law, based its decision on an erroneous finding of fact that it had made in a perverse or capricious manner or without regard for the material before it or its decision was unreasonable, the Tribunal must dismiss the appeal.
Analysis
[10] The Tribunal proceeded with the hearing in the parties' absence because it was satisfied that the parties had received the notice of hearing, pursuant to section 12 of the Social Security Tribunal Regulations.
[11] The Appellant submits that the General Division erred in law in that it did not take into consideration the reasons for which he had not been able to complete his file within the prescribed time limit. He argues that his counsel never followed up on his mandate and did not do his job. As for the Appellant, he had always sent the required documents to the Tribunal within the prescribed time limit.
[12] The Respondent leaves it to the Appeal Division to determine whether the file must be returned to the General Division for a new hearing.
[13] Subsection 52(1) of the DESD Act provides that an appeal of a decision must be brought to the General Division in the prescribed form and manner and within the following timeframe: (a) in the case of a decision made under the Employment Insurance Act, 30 days after the day on which it is communicated to the appellant. Subsection 52(2) of the DESD Act 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 beyond a one-year delay.
[14] On November 30, 2015, the Respondent denied the Appellant's request for reconsideration regarding a voluntary departure. On May 18, 2016, the Appellant filed a notice of appeal with the Tribunal's General Division.
[15] On May 24, 2016, the General Division sent the Appellant a letter notifying him that his appeal was incomplete, and that the following was required to complete his appeal:
- a copy of the reconsideration decision being appealed;
- the date on which the Appellant was notified of the reconsideration decision;
- a signed declaration that the information provided is true to the best of the Appellant's knowledge.
[16] On May 31, 2016, the Appellant filed a signed declaration with the Tribunal that the information provided was true to the best of his knowledge. He also filed a copy of the Respondent's reconsideration decision rendered on November 30, 2015. He does not indicate, however, the date on which the reconsideration decision was communicated by the Respondent.
[17] The Tribunal sent further correspondence to the Appellant on May 31, June 15, June 29, and August 11, 2016, continuously asking him to confirm the date on which the Respondent's reconsideration decision was communicated to him. The Tribunal communicated with the Appellant by telephone on August 3 and 4, 2016, to explain what was missing from his file in order to complete his appeal. The Appellant said he would send the information to the General Division without delay.
[18] However, it was not until January 31, 2017, after several letters and telephone calls from the Tribunal, that the Appellant confirmed that the reconsideration decision had been communicated by the Respondent on December 7, 2015 (GD2E-1).
[19] As concluded by the General Division, the Appellant completed his appeal before the General Division on January 31, 2017, which was more than one year after the Respondent's reconsideration decision was communicated to him. The General Division therefore applied subsection 52(2) of the DESD Act, which clearly states that the General Division cannot extend the period for filing an appeal beyond the one-year period.
[20] As noted by the General Division, no lawyer was recorded in the Appellant's file as a representative and all communication from the General Division was sent directly to him. There was therefore nothing preventing him from providing the General Division with the information required for processing his appeal.
[21] In August 2016, the General Division contacted the Appellant by telephone to ask him to provide the required information while he was still within the one-year time limit. Unfortunately, he did not follow up on this conversation until five months later, on January 31, 2017.
[22] For the above-mentioned reasons, the appeal must be dismissed.
Conclusion
[23] The Tribunal dismisses the appeal.