Employment Insurance (EI)

Reasons and Decision

Overview

[1] The Appellant made an initial claim for employment insurance benefits on November 18, 2013. On July 13, 2015 the Respondent advised the Appellant that a penalty of $1,449.00 would be imposed following 2 false representations and a notice of violation, which was classified as a subsequent violation, was issued. On August 17, 2017, the Appellant requested a reconsideration of these decisions, and on August 30, 2017 the Respondent advised the Appellant that the decision issued on July 13, 2015 would not be reconsidered as the request had been received outside of the 30 day time limit for requesting reconsideration and it had determined that the Appellant had not satisfied the requirements for allowing an extension of time to make the request. The Appellant appealed this decision to the Social Security Tribunal (Tribunal) on September 20, 2017.

[2] The Tribunal must decide whether the Respondent acted judicially when refusing to extend the time limit for requesting reconsideration of the July 13, 2015 decision.

[3] The hearing was held by teleconference for the following reasons:

1. The complexity of the issue under appeal.
2. The fact that credibility is not anticipated to be a prevailing issue.
3. The fact that the Appellant will be the only party in attendance.
4. The information in the file, including the need for additional information.
5. The form of hearing respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.

[4] The following people attended the hearing: the Appellant, E. H.

[5] The Tribunal finds that the Respondent acted judicially when exercising its discretionary authority in refusing to extend the time period for requesting reconsideration of the decision issued on July 13, 2015. As a result, the Tribunal cannot disturb the Respondent’s decision to deny further time to request reconsideration and the appeal is dismissed.  The reasons for this decision follow.

Evidence

[6] On November 18, 2013 the Appellant made an initial claim for employment insurance regular benefits indicating that he had worked for his employer from July 16, 2013 until November 15, 2013 and that his employment had terminated because of a shortage of work. (GD3-3 to GD3-12)

[7] A Record of Employment issued on November 19, 2013 indicated that the Appellant’s last day of work was November 15, 2013 and his employment had ended because of a shortage of work/end of contract or season. The Appellant had 1042 hours of insurable employment. (GD3-13 to GD3-14)

[8] On July 13, 2015, the Respondent advised the Appellant in writing that according to their records, the Appellant had not declared certain earnings received as wages from the employer for the weeks beginning May 11, 2014; May 18, 2014; and May 25, 2014. The Respondent had therefore adjusted the allocation of those earnings and this would mean that the Appellant would have to pay back any benefits he should not have received. Additionally, the Appellant was advised that the Respondent had concluded that the Appellant had knowingly made these false representations and his file indicated that he had three previous incidents of improper reporting or omitting to provide information. He had been notified of these incidents in letters dated July 29, 2011; October 24, 2014; and February 5, 2015. A penalty was therefore being imposed in the amount of $1,449.00 for 2 false representations and he would be required to work more hours to qualify for employment insurance benefits in the future because a notice of violation was being issued, also on July 13, 2015. This letter also advised the Appellant that if he disagreed with this decision, he had 30 days following the date of the letter to make a formal request for reconsideration to the Respondent. (GD3-15 to GD3-17)

[9] The Respondent spoke with the Appellant on August 8, 2017 and when asked why he was requesting a review of the decision that he had been notified of over 365 days ago, the Appellant indicated that he received the letter, but did not understand it. He did not contact the Respondent or the Canada Revenue Agency (CRA) as it just got away from him. He did not have an answer as to why he did not inquire earlier when he had been getting notices on a monthly basis from CRA. The Appellant explained that he was about to apply for benefits and realized he needed 1400 hours to qualify. The Respondent advised him that with the number of violations imposed on him in the past, he should have inquired about the impact on his future initial claims and that an extension of time to make a reconsideration request was denied. (GD3-22)

[10] On August 17, 2017 the Respondent received the Appellant’s request for reconsideration of the decision that “Employment Insurance wants me to have 1400 hours to file a claim for E.I.” that was verbally communicated to him on August 3, 2017. He further explains that he received the letters and apologizes for the delay because he did not understand what they meant. He had called to find out about applying for EI but was told that he needed 1400 hours to qualify for benefits and he is now appealing because he is a seasonal worker and cannot get that many hours. He would like to start paying his overpayment when he does get on EI but it will be impossible for him to get the 1400 hours needed so he would like it to be dropped to 700 hours so he could qualify for benefits. (GD3-19 to GD3-21)

[11] An internal “Record of Decision” prepared by the Respondent indicates that the Appellant’s request for reconsideration of the decision issued on July 13, 2015 was received 736 days after the date of the initial decision letter and that the Appellant stated that he did not understand the letters, but that in the past he has received notifications of debt and has had his penalties reconsidered and reduced. The Appellant’s statements that he did not understand the timeframes for reconsideration or the process were determined to not be credible. It noted that the Appellant was aware of the decision dated July 13, 2015 but had not provided a reasonable explanation for the delay nor demonstrated a continuing intention to request reconsideration as he was aware of the process as demonstrated by his two previous reconsideration requests to have penalties reduced and monthly statements and notices of debts were sent to him which he did not make attempts to have reconsidered. (GD3-23)  

[12] The Appellant was advised by letter dated August 30, 2017 that the Respondent has determined that the explanation he has provided with respect to the delay in requesting reconsideration does not meet the requirements of the Reconsideration Request Regulations to allow an extension of time and, as a result, the Respondent would not be reconsidering its decision of July 13, 2015. (GD3-24)

[13] At the hearing, the Appellant testified that he asked for reconsideration because he wants to qualify for benefits but was told he needed 1400 hours to qualify, which he does not think he can get because he is a seasonal worker. When he received the original decision, he did not really understand what was said on the paper and the last letter he got when they refused, he thought they were refusing him and he would get another chance to appeal it again. He testifies that he probably did read it and understand it, but might have forgotten to go ahead and do it. He wrote a letter to the Respondent saying that he could not get the 1400 hours and asked if they could change that. Since he got the letter dated July 13, 2015, he has not been back at work because he was sick for a while. He had a heart attack at work and was on sickness benefits and this was about 3 years ago and he has not worked since and has not gotten any employment insurance benefits during that time.

[14] The Appellant also testified that he was getting notices from the CRA about the overpayment, but he did not pay because he was not working and he never told them he disagreed with the decision. He had told the CRA what the situation was, he was on social assistance and they told him to send a pay stub from social assistance and they stopped sending bills for the time being and he is supposed to get back to them as soon as he goes back to work. He wants to get on EI so he can start paying back the overpayment but does not know how he will qualify with 1400 hours required. He knows he did wrong, will pay what he owes back, but is only a seasonal worker.

Submissions

[15] The Appellant submitted that when he received the initial decision letter he did not really understand it and he thought he would have another chance to appeal. He may have forgotten to go ahead and appeal. He had been sick for a period of time since then and although he was getting notices from CRA he explained the situation to them and they stopped sending him notices. Because he is a seasonal worker, he would not be able to have enough hours to qualify for benefits and be able to start paying his overpayment.

[16] The Respondent submitted that it exercised its discretion under section 112 of the Act in a judicial manner as all the pertinent circumstances were considered when denying the Appellant’s request for further time to request a reconsideration decision. The Appellant had not provided a reasonable explanation for the delay in requesting the reconsideration nor has he demonstrated a continuing intention to request said reconsideration. It was the Appellant’s choice at the time not to contact the Respondent for clarification of the decision and not to file a request for reconsideration within the required timeframe. The Respondent also submits that if the longer period of the delay were allowed, the Appellant would still have to meet increased entrance requirements to establish a claim for benefits as the decision dated July 13, 2015 is in relation to a subsequent violation, meaning the Appellant had accumulated other violations prior.

Analysis

[17] The relevant legislative provisions are reproduced in the Annex to this decision.

[18] The Tribunal notes that decisions set out in the July 13, 2015 letter, being the penalty and notice of violation, are not before the Tribunal. The only question before the Tribunal is whether or not the Respondent exercised its discretionary authority judicially when denying the Appellant’s request to extend the limit of 30 days to request reconsideration of the July 13, 2015 decision.

[19] Subsection 112(1) of the Employment Insurance Act (the Act) allows a claimant to request that the Commission reconsider its initial decision within the 30 days after the date on which the decision was communicated to them, or any further time that the Commission may allow.

[20] Section 1 of the Reconsideration Request Regulations sets out the requirements that must be met in order to further time to be allowed. The Commission may allow a longer period if the Commission is satisfied there is a reasonable explanation for requesting a longer period and the person has shown a continuing intention to request a reconsideration.

[21] In some cases, the Respondent must also be satisfied that the request for reconsideration has a reasonable chance of success and no prejudice would be cause by allowing a longer period. One of the circumstances where these additional criteria apply is when the request for reconsideration is made after the 365-day period after the day on which the decision was communicated to the Appellant. The Tribunal finds that the Appellant is not disputing that his request for reconsideration was made more than 365 days after the letter dated July 13, 2015 was communicated to him.

[22] Since the Appellant made his request for reconsideration more than 365 days after the Respondent’s decision was communicated to him, the Respondent cannot allow further time unless it is satisfied that all four factors outlined in section 1 of the Reconsideration Request Regulations are met:

1. There is a reasonable explanation for requesting a longer period; and
2. The person has demonstrated a continuing intention to request a reconsideration; and,
3. The request for reconsideration must have a reasonable chance of success; and,
4. No prejudice will be caused to the Commission or another party by allowing a longer period to make the request.

[23] A decision made by the Commission further to the Reconsideration Request Regulations is a discretionary decision. The Commission “may” allow further time to request reconsideration outside of the 30-day limit, but it is not obligated to do so. (Daley v Canada (Attorney General), 2017 FC 97).

[24] In the Federal Court of Appeal decision in Canada (Attorney General) v Knowler, A-445-95, based on a previous version of the Act very similar to the one currently in force, Judge Marceau explains that before interfering with a discretionary decision of the Commission to refuse the extension of the time, it must be determined that the Commission did not exercise its discretionary authority judiciously, meaning on the basis of considerations that were not relevant or failing to take into consideration relevant factors. The Federal Court of Appeal decision in Canada (Attorney General) v Purcell, 1996 1 FCA 644, adds that in judicially exercising a discretionary authority, the decider must not act in bad faith or in a discriminatory manner or for an improper purpose or motive.

[25] The Appellant has submitted that when he received the letter dated July 13, 2015 indicating that a penalty and the notice of violation had been imposed he may not have understood what the letter meant or that he may have forgotten to go ahead and request reconsideration. He also submits that he had a heart attack approximately 3 years ago and has not worked since.

[26] The Respondent submits that it acted judicially in determining that the Appellant did not have a reasonable explanation for requesting a longer period and did not demonstrate a continuing intention to request a reconsideration because the Appellant was aware of the decision dated July 13, 2015 and it was his choice at that time not to contact the Respondent for clarification and not to make a request for reconsideration.

[27] The Appellant’s testimony at the hearing and his previous statements to the Respondent are consistent in that he admits he did received the July 13, 2015 letter from the Respondent indicating that a penalty had been imposed and because of his violation, he would require more insurable hours to qualify for benefits. He suggests that he may not have understood the consequences. However, he also admits that since the receipt of that letter, he did not attempt to contact the Respondent to clarify these consequences. In fact he only spoke to the Respondent again when he was considering making a new initial claim.

[28] The Respondent’s notes show that in August 2017 the Appellant was contacted and given the opportunity to explain the delay in requesting reconsideration of the decision to impose a penalty and increase the number of hours required to qualify for benefits. (GD3-22). The Appellant was also asked why he did not inquire earlier when he was getting notices from CRA on a monthly basis, to which he had no reply.

[29] At the hearing before the Tribunal, the Appellant raised the fact that he had suffered a heart attack and was recovering and unable to work during part of the period of the delay. This information does not appear to have been provided to the Respondent. However, the Tribunal also notes that the Appellant testified that during this period, he also communicated with CRA to explain his situation which resulted in a stoppage of the sending of bills until such time as he was back to work. As the Appellant was well enough to communicate with CRA with respect to his debt, the Tribunal finds that his health situation would not have prevented him from communicating with the Respondent to request reconsideration of the July 13, 2015, or at least more information with respect to the consequences of that decision. As the Appellant’s health situation did not impeded his communications with the CRA and he did not disclose this as a reason for his delay in requesting reconsideration, the Tribunal finds that this factor was not relevant to the question of whether or not the Appellant had a reasonable explanation for asking for an extension of the delay to request reconsideration.

[30] The Tribunal finds that the Respondent offered the Appellant the opportunity to provide information with respect to the delay in requesting reconsideration of the decision. The “Record of Decision” (GD3-23) shows that the Respondent considered the relevant information provided by the Appellant and also the fact that the Appellant had made two previous reconsideration requests and had received monthly statements and notices of debt, when concluding that the Appellant had not provided a reasonable explanation for the delay in requesting reconsideration and that he had not demonstrated a continuing intention to request the reconsideration. The Tribunal finds that taking this information into consideration, the Respondent acted judicially when concluding that the Appellant did not have a reasonable explanation for the delay and that he had not demonstrated a continuing intention to request reconsideration.

[31] With respect to the two additional criteria that are laid out in subsection 1(2) of the Reconsideration Request Regulations and which must be met in addition to the criteria examined above because the Appellant’s request for reconsideration was made more than 365 days after the date the decision was communicated to him, the Tribunal notes that neither the Appellant nor the Respondent’s arguments specifically address these criteria. The Respondent acknowledges in its Record of Decision (GD3-23) that these criteria must be met. In its argumentation to the Tribunal, the Respondent explains that even if a longer period of delay were allowed, the Appellant would still be required to meet increased entrance requirements to establish a claim for benefits as the decision notice dated July 13, 2015 is in relation to a subsequent violation; meaning the claimant was imposed with other violations prior. This would suggest that the Respondent was not satisfied that the Appellant’s claim had a reasonable chance of success and that they considered that the third criteria had not been met.

[32] The Tribunal notes that while the Respondent has recognized the fourth and final criterion as part of the test to be applied, it has failed to consider whether any prejudice would be caused to the Respondent or any other persons by allowing a longer period to make a request.

[33] However, in order for the extension of the time limit to request a reconsideration of the Respondent’s decision of July 13, 2015 to be granted, all four criteria outlined in section 1 of the Reconsideration Request Regulations must be satisfied. The Respondent had refused an extension of time on the basis that the first two criteria had not been met. Once the Respondent determined that the first two criteria under subsection 1(1) had not been met, it was open to them to decide it was not necessary to consider the factors in subsection 1(2), as a positive finding with respect to either of these criteria would not alter the outcome of the application of the test. Jurisprudence, such as Canada (Attorney General) v Sirois, A-600-95 and Canada (Attorney General) v Chartier, A-42-90 explains that there is no reason to intervene in a discretionary decision of the Commission, unless as it has been proven to have been made in a non-judicial manner.

[34] The Tribunal concludes that the Respondent did act in a judicial manner in determining that a longer period for requesting reconsideration should not be granted as the Appellant had not satisfied the all criteria set out in section 1 of the Reconsideration Request Regulations. In particular, the Respondent acted in good faith and considered all relevant factors when arriving at the conclusion that the Appellant did not have a reasonable explanation for the delay in requesting reconsideration and that he did not demonstrate a continuing intention to request reconsideration of the decision. Any finding with respect to the final two criteria would not alter the decision to refuse to extend the time limit for requesting reconsideration, as the first two criteria have not been met. As such, the Tribunal must dismiss the appeal and the extension of time to request reconsideration of the July 13, 2015 decision cannot be granted.

Conclusion

[35] The appeal is dismissed.

Annex

The law

Employment Insurance Act

1. 112 (1) A claimant or other person who is the subject of a decision of the Commission, or the employer of the claimant, may make a request to the Commission in the prescribed form and manner for a reconsideration of that decision at any time within
   1. (a) 30 days after the day on which a decision is communicated to them; or
   2. (b) any further time that the Commission may allow.
2. (2) The Commission must reconsider its decision if a request is made under subsection (1).
3. (3) The Governor in Council may make regulations setting out the circumstances in which the Commission may allow a longer period to make a request under subsection (1).

Reconsideration request Regulations

1. 1 (1) For the purposes of paragraph 112(1)(b) of the Employment Insurance Act and subject to subsection (2), the Commission may allow a longer period to make a request for reconsideration of a decision if the Commission is satisfied that there is a reasonable explanation for requesting a longer period and the person has demonstrated a continuing intention to request a reconsideration.
2. (2) The Commission must also be satisfied that the request for reconsideration has a reasonable chance of success, and that no prejudice would be caused to the Commission or a party by allowing a longer period to make the request, if the request for reconsideration
   1. (a) is made after the 365-day period after the day on which the decision was communicated to the person;
   2. (b) is made by a person who submitted another application for benefits after the decision was communicated to the person; or
   3. (c) is made by a person who has requested the Commission to rescind or amend the decision under section 111 of the Employment Insurance Act.