Table of contents
Reasons and decision
Introduction
[1] On August 31, 2017, the General Division of the Social Security Tribunal of Canada (Tribunal) determined that the Applicant did not have just cause for voluntarily leaving her employment under section 29 of the Employment Insurance Act and that she was disqualified under section 30. The Applicant filed an application for leave to appeal (Application) with the Tribunal’s Appeal Division on October 12, 2017. The Application was filed outside the 30-day limitation imposed by subsection 57(1) of the Department of Employment and Social Development Act (DESD Act).
Issue
[2] Has the Application been filed out of time and, if so, should I exercise my discretion to allow the late Application?
[3] If the extension of time is granted, does the appeal have a reasonable chance of success?
The law
[4] Paragraph 57(1)(a) of the DESD Act provides that an application for leave to appeal must be made within 30 days after the day on which it is communicated to the appellant.
[5] Paragraph 19(1)(a) of the Social Security Tribunal Regulations (Regulations) states that the decision is deemed to have been communicated to a party 10 days after the day on which it was sent to the party, if sent by ordinary mail.
[6] Subsection 55(2) of the DESD Act permits the Appeal Division to allow further time within which an application for leave to appeal is to be made.
[7] According to subsections 56(1) and 58(3) of the DESD Act, an appeal to the Appeal Division may be brought only if leave to appeal is granted and the Appeal Division must either grant or refuse leave to appeal.
[8] According to subsection 58(1) of the DESD Act, the following are the only grounds of appeal:
- (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.
[9] Subsection 58(2) of the DESD Act provides that leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.
Preliminary issue—Late application
The General Division decision of August 31, 2017, was mailed on the same day. Nothing in the file indicates that it was sent by any means other than regular mail.
[10] The Applicant indicates that her previous correspondence from the Tribunal had been directed to her by registered mail. She did not know when to expect the decision but she expected it to also arrive by registered mail. She collects her regular mail from a community mailbox, which she checks infrequently.
[11] The Applicant wrote to enquire as to the status of the appeal by letter dated September 18, 2017. This was acknowledged by the Tribunal by letter dated September 22, 2017. She discovered both the General Division decision and the Tribunal’s September 22, 2017, letter on the same day, when she checked her mail on October 9, 2017. She mailed her Application the following day and it was filed on October 12, 2017.
[12] The 30-day time limit for filing an application for leave to appeal is calculated from the date the General Division decision is communicated. That date would be deemed by paragraph 19(1)(a) of the Regulations to be 10 days from the date of mailing, which would be September 10, 2017.
[13] However, I accept the Applicant’s evidence that she only received the decision on October 9, 2017. The Applicant’s explanation is plausible, and its credibility is supported by her earlier enquiry as to the status of the decision. In consequence, I find that the decision was communicated on October 9, 2017, and filed on October 12, 2017. Therefore, the Applicant has rebutted the presumption of delivery on September 10, 2017, and I find the Application to have been filed within the allotted timeframe.
[14] As a result of my finding above, I do not need to consider whether I should exercise my discretion to allow a late application.
Submissions—Leave to appeal
[15] The Applicant argues that the General Division erred in its determination that the Applicant did not have just cause for leaving her employment and in its apparent rejection of her claim that she had a “reasonable expectation of continued employment with her new employer.”
[16] The Applicant alleges errors of fact, and challenges the General Division’s interpretation of the law and application of the legal test. The Applicant also disputes the version of facts accepted by the General Division and, in particular, that the new position had always been meant to be part-time or temporary.
Analysis
[17] The General Division found as fact that there was “no indication of full-time employment” at paragraph 32 and “no evidence to support the [Applicant]’s contention that there was an opportunity [of full-time, permanent work]” at paragraph 34.
[18] The General Division states its reliance on the Applicant’s testimony at paragraph 32, and on the Respondent’s telephone log notes of a conversation with the Human Resources manager at the Calgary store where the Applicant took up her new employment (paragraph 34).
[19] However, I note that, at paragraph 11, the General Division recorded the Applicant’s evidence that the new employer reached out to her and that “she was advised that there was a job opportunity in Calgary that could lead to a more permanent position.”
[20] The Applicant’s testimony could be said to be some evidence that her new employment offered an opportunity of permanent work. In finding that there was no evidence, it is possible that the General Division overlooked this aspect of the Applicant’s testimony and thereby made an erroneous finding of fact in a perverse or capricious manner, or without regard to the material before it—per paragraph 58(1)(c) of the DESD Act.
[21] Based on the above, I find that the Applicant has a reasonable chance of success on appeal.
[22] As a result of the decision in Mette v. Canada (Attorney General), 2016 FCA 276, it is not necessary that I consider each individual ground of appeal. The Court noted that “[subsection 58(2)] does not require that individual grounds of appeal be dismissed. Indeed, individual grounds may be so inter-related that it is impracticable to parse the grounds so that an arguable ground of appeal may suffice to justify granting leave.”
Conclusion
[23] The Application is granted.
[24] The Applicant is free to argue any additional grounds of appeal at her appeal on the merits.
[25] This decision granting leave to appeal does not presume the result of the appeal on the merits of the case.