Employment Insurance (EI)

Decision and reasons

Decision

[1] The application for leave to appeal is refused.

Overview

[2] At the time when the Applicant, M. M. (Claimant), left her employment and applied for Employment Insurance benefits, she was unable to obtain Records of Employment (ROE) from her employers. The Respondent, the Canada Employment Insurance Commission (Commission), calculated that she was entitled to 40 weeks of benefits at $537.00 per week, based on its understanding of information that the Claimant had provided. When the Commission eventually received the ROEs, it recalculated the Claimant’s entitlement to benefits to be 17 weeks at $362.00 per week. The Commission assessed an overpayment against the Claimant accordingly. The Claimant asked the Commission to reconsider, but the Commission maintained its decision. The Claimant appealed to the General Division of the Social Security Tribunal, where her appeal was dismissed. She is now seeking leave to appeal to the Appeal Division.

[3] The Claimant does not have a reasonable chance of success on appeal. There is no arguable case that the General Division decision is based on, or affected by, the errors of fact to which the Claimant refers in her application or that the General Division otherwise made an “erroneous finding of fact in a perverse or capricious manner or without regard for the material before it” as would be required under section 58(1)(c) of the Department of Employment and Social Development Act (DESD Act)

Preliminary matters

[4] I must determine whether the Claimant’s application for leave to appeal was late before I can proceed. According to section 57(1)(a) of the DESD Act, a party must make an application for leave to appeal within 30 days of the date the decision is communicated to the party. Unless the party can prove otherwise, a decision that is sent to that party by ordinary mail is deemed under section 19(1)(a) of the Social Security Tribunal Regulations (SST Regulations) to have been received 10 days from the date of the decision.

[5] In this case, the date of the General Division decision is September 4, 2018, and there is no evidence to suggest the Claimant did not receive it within 10 days of the date of the decision. Therefore, I accept that the Claimant received the decision on September 14, 2018, as per section 19(1)(a) of the SST Regulations. In order for the leave to appeal application to have been filed within 30 days of September 14, 2018, the Appeal Division would have had to receive the application on or before October 13, 2018, but the Appeal Division did not receive the leave to appeal application until October 19, 2018. Therefore, the application for leave to appeal is six days late.

Issues

[6] Should the Claimant be granted an extension of time to file her application for leave to appeal?

[7] If the extension of time is granted, is there an arguable case that 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:

1. the casual or on-call nature of the Claimant’s employment;
2. the term of her employment contract; or
3. the Commission’s misunderstanding about her pay period?

Analysis

Issue 1: Should the Claimant be granted an extension of time to file her application for leave to appeal?

[8] Section 57(2) of the DESD Act permits me to allow further time for the application for leave to be made. The decision to allow further time is a discretionary decision,^{Footnote 1} but, in exercising my discretion to grant an extension of time, I must still have regard to the four factors identified by the Federal Court in Canada (Minister of Human Resources Development) v Gattellaro.^{Footnote 2} They are as follows:

1. a) A continuing intention to pursue the appeal;
2. b) A reasonable explanation for the delay;
3. c) The existence of prejudice to the other party if the extension were allowed; and
4. d) The matter discloses an arguable case.

[9] The weight given to each of the above factors may differ in each case, and in some cases, different factors will be relevant. The overriding consideration is that the interests of justice be served.^{Footnote 3}

[10] In this case, the Claimant’s complete application was filed on time, and she was only six days late in completing her application. Six days is such a short delay that I cannot find that she did not have a continuing intention to pursue the appeal or a reasonable explanation for the delay. I also find that a delay of only six days could not have prejudiced the Commission in its ability to respond to the application.

[11] While I do not find that the matter discloses an arguable case, as will be evident from my reasons below, three of the Gattellaro factors are supportive of granting an extension of time. Given the minimal delay, the interests of justice would not be served by denying the extension of time.

[12] I will grant an extension of time and permit the late application to proceed.

Issue 2: Is there an arguable case that 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:

1. the casual or on-call nature of the Claimant’s employment;
2. the term of her employment contract; or
3. the Commission’s misunderstanding about her pay period?

[13] The Claimant argues that the General Division misunderstood the nature and term of her employment. She states that she worked on a casual, on-call basis for up to 90 days within a calendar year. The General Division decision describes her employment as “part-time” and that she had a contract to work 90 days in a “school year.”

[14] The General Division decision concerned the Claimant’s weekly benefit rate based on her best 20 weeks of earnings^{Footnote 4} within her qualifying period; the number of weeks of benefits to which she was entitled based on the number of hours of insurable employment she had accumulated within her qualifying period,^{Footnote 5} and; whether the Commission was entitled to recover an overpayment based on the difference between the total value of the benefits she had received and the correct total benefit value as calculated by the Commission^{Footnote 6}.

[15] While the General Division may have described the Claimant’s employment inaccurately, the Claimant has not explained how the General Division’s description affected its assessment of the Claimant’s weekly benefit rate, the number of weeks of benefits to which she is entitled, or the overpayment ultimately required. It is not apparent to me that it had any effect at all.

[16] There is therefore no arguable case that the General Division ignored or misunderstood evidence that was relevant to its findings, or that its findings could be said to be perverse or capricious because of this description or misunderstanding.

[17] The Claimant also argued that the General Division erred by failing to consider or understand that the Commission had misunderstood her pay period. The Claimant appears to be arguing that she tried to provide accurate information to the Commission, that the Commission misunderstood her information when it granted her benefits in the first place, and that the Commission should not be allowed to recover an overpayment resulting from its own mistake.

[18] The Commission addressed this argument in paragraphs 12 and 27 of its decision, and I do not see how it ignored or misunderstood the Claimant’s evidence or how its conclusions do not follow from the evidence.

[19] Following the lead of the courts in cases such as Karadeolian v Canada (Attorney General),^{Footnote 7} I have reviewed the record to determine whether the General Division ignored or misunderstood any of the other evidence in making its findings, and in particular; its findings about her benefit rate, the weeks of benefits to which she was entitled, and the Claimant’s obligation to repay the amount calculated as the overpayment. I have not found any other arguable case that the General Division erred by making any finding of fact in a perverse or capricious fashion or without regard for the material before it, under section 58(1)(c) of the DESD Act.

[20] The Claimant has no reasonable chance of success on appeal.

Conclusion

[21] The application for leave to appeal is refused.