Employment Insurance (EI)

Decision and Reasons

Decision

[1] The appeal is allowed.

Overview

[2] The Applicant, T. G. (Claimant), applied for Employment Insurance benefits after she was dismissed from her employment. The Respondent, the Canada Employment Insurance Commission (Commission), refused her application because she had lost her employment due to her own misconduct. This decision was maintained on reconsideration. The Claimant appealed to the General Division of the Social Security Tribunal, but she did not call in to connect to the teleconference hearing. The General Division proceeded on the record and dismissed her appeal. The Claimant is appealing that decision to the Appeal Division on the grounds that she was denied an opportunity to be heard.

[3] The appeal is allowed. The Claimant expected to be able to explain the circumstances of her dismissal, and she claimed that she did not join the teleconference hearing at the scheduled time because she had expected the Tribunal to call her. Given the Claimant’s known difficulty communicating in English, the General Division’s decision to proceed on the record without providing the Claimant with an opportunity to make further representations is a breach of the Claimant’s natural justice right to be heard.

Issue

[4] Did the General Division fail to observe a principle of natural justice by proceeding on the record when the Claimant did not join the teleconference hearing at the scheduled time?

Analysis

General principles

[5] The Appeal Division’s task is more restricted than that of the General Division. The General Division is required to consider and weigh the evidence that is before it and to make findings of fact. In doing so, the General Division applies the law to the facts and reaches conclusions on the substantive issues raised by the appeal.

[6] However, the Appeal Division may only intervene in a decision of the General Division, if it can find that the General Division has made one of the types of errors described by the grounds of appeal in s. 58(1) of the Department of Employment and Social Development Act (DESD Act).

[7] The only grounds of appeal are described below:

1. The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. 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.

Background

[8] The General Division had adjourned the hearing on its own initiative on a prior occasion owing to its difficulty in obtaining an interpreter. Later, the Claimant requested and was granted an adjournment because of a conflict between her hearing date and a specialist appointment. The Claimant failed to appear for the second hearing date and then requested an adjournment after the fact, explaining that she had been ill and that she did not have anyone to assist her with dialing in to the teleconference. The General Division granted the adjournment but warned the Claimant that she would not be given further adjournments.

Issue: Did the General Division fail to observe a principle of natural justice by proceeding on the record when the Claimant did not join the teleconference hearing at the scheduled time?

[9] At the scheduled time on the most recent hearing date, the Claimant failed to appear again. The audio recording of the hearing is silent for most of its 12 minute length, while the General Division member waits for the Claimant to call in. The recording also ends in silence without the member formally concluding the proceedings or indicating how the member intends to proceed. The Tribunal has no record that the member made a request to Tribunal staff to contact the Claimant during the time that the member was waiting for the Claimant to call in. In her decision, the General Division member indicates that she called the Tribunal’s liaison office after the hearing and determined that the Claimant had not attempted to call in.

[10] Tribunal records indicate that the Claimant had someone contact the Tribunal on her behalf to explain that she had expected the Tribunal to call her. This call was received within an hour of the time that the hearing had been scheduled to begin but it would presumably have been received after the General Division member had confirmed that the Claimant had not attempted to call the Tribunal.

[11] The General Division went on to determine the matter on the record, stating that the Claimant should have known that she was required to call in. The General Division rejected the Claimant’s explanation that she had expected the Tribunal to call her on the basis that the Claimant had stated in a previous adjournment request that she did not have anyone to assist her to call in, and because it was clearly stated on the Notice of Hearing that she must dial in to the teleconference. The General Division considered that there were no exceptional circumstances that prevented the Claimant from calling in, as would be required for an adjournment or postponement request under s. 11(2) of the Social Security Tribunal Regulations.

[12] However, the Claimant’s native language is X, and her concern about her ability to communicate in English is evident on the face of the file. This is shown by her stated need for an interpreter at section 4 of the Notice of Appeal, and her statement at section 5 that she needed someone to read the reconsideration decision to her because of her language difficulties. Before rendering a decision, the General Division should have considered the possibility that, as a consequence of her difficulty communicating in English, the Claimant did not understand that she was expected to call in to the teleconference. In my view, the Claimant’s language difficulty was an exceptional circumstance that would have justified adjourning the hearing for the Claimant to attend, or to allow the Claimant to provide additional evidence or submissions in some other form.

[13] The Commission has taken the position that the matter should be returned to the General Division stating that “it cannot be said that the General Division’s decision to proceed with the hearing on July 3, 2018, in the absence of the [C]laimant, complied with the rules of fairness and natural justice.”

[14] I agree. I accept that the Claimant had intended to attend the hearing, as shown by her representative’s call within an hour of the time that the hearing was to start. Given her language barrier, it is plausible that she had understood that the Tribunal would call her when the hearing was to begin, even though she had stated a need for help to “dial in” on a previous occasion and the English instructions on the Notice of Hearing instructed her to call.

[15] The Claimant had provided some documentation with her Notice of Appeal, but she only supplied very brief reasons for her appeal. It is quite possible that the Claimant was relying on the oral hearing for an opportunity to present her case. I therefore find that the General Division’s decision to render a decision on the record in these circumstances, without affording the Claimant an opportunity to provide additional evidence or submissions, constitutes a breach of natural justice, and that the General Division therefore erred under s. 58(1)(a) of the DESD Act.

Conclusion

[16] The appeal is allowed.

[17] In accordance with s. 59 of the DESD Act, I direct that the matter be referred back to the General Division for reconsideration.

[18] I further direct that the General Division make reasonable efforts to conduct that reconsideration by way of an oral hearing unless the parties agree on some other form of hearing.