Employment Insurance (EI)

Decision and reasons

Decision

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

Overview

[2] The Applicant, N. A., applied for and received Employment Insurance (EI) benefits effective June 2010.

[3] The Respondent, the Canada Employment Insurance Commission, subsequently became aware that the Applicant had travelled outside of Canada while on claim and, in September 2012, it issued a decision to impose a disentitlement, penalty, and notice of violation.

[4] The recourse available to the Applicant in 2012 was to file an appeal; he did not do so. The Applicant requested reconsideration in April 2018.

[5] The General Division found that: the decision was communicated to the Applicant by October 4, 2012; he did not file an appeal in the established 30-day appeal period; he took the appropriate step to dispute the September 2012 decision 5.5 years after the decision was communicated to him; and he did not satisfy the test for allowing a longer period to make a request for reconsideration.

[6] The Applicant filed the Application with the Appeal Division and submitted that the General Division did not properly evaluate his case. He also attached additional documents.

[7] I find that the appeal does not have a reasonable chance of success because the Application simply repeats arguments the Applicant made to the General Division and does not present any reviewable errors.

Issues

[8] Is there an arguable case that the General Division failed to observe a principle of natural justice or refused to exercise its jurisdiction?

[9] Is there an arguable case that the General Division made a serious error in its findings of fact by concluding that the Applicant did not satisfy the factors required to be allowed a longer period to ask for reconsideration?

Analysis

[10] An applicant must seek leave to appeal in order to appeal a General Division decision. The Appeal Division must either grant or refuse leave to appeal, and an appeal can proceed only if leave to appeal is granted.^{Footnote 1}

[11] Before I can grant leave to appeal, I must decide whether the appeal has a reasonable chance of success. In other words, is there an arguable ground upon which the proposed appeal might succeed?^{Footnote 2}

[12] Leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success^{Footnote 3} based on a reviewable error.^{Footnote 4} The only reviewable errors are the following: the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; erred in law in making its decision, whether or not the error appears on the face of the record; or 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.

[13] The Applicant submits that the General Division failed to consider his specific circumstances. He also submits that it failed to consider that his travel document was stolen and that someone else travelled with it, using his identity.

Issue 1: Is there an arguable case that the General Division failed to observe a principle of natural justice or refused to exercise its jurisdiction?

[14] I find that there is no arguable case that the General Division failed to observe a principle of natural justice or refused to exercise its jurisdiction.

[15] “Natural justice” refers to fairness of process and includes such procedural protections as the right to an unbiased decision-maker and the right of a party to be heard and to know the case against them. It is settled law that an applicant has the right to expect a fair hearing with a full opportunity to present their case before an impartial decision-maker.^{Footnote 5}

[16] The Applicant did not participate in the teleconference hearing with the General Division, although he had been notified of the hearing. He has not explained his absence. He had an opportunity to present his case at this hearing but did not. He did not fulfill his responsibility to attend the hearing to present his case, so he cannot say that this was a breach of natural justice.

[17] The Application did not explain how the General Division failed to observe a principle of natural justice, and there was no material evidence supporting the Applicant’s argument about how the General Division member conducted the proceedings. There is no error relating to natural justice that is apparent on the face of the record, either.

[18] The appeal does not have a reasonable chance of success based on this ground.

Issue 2: Is there an arguable case that the General Division made a serious error in its findings of fact by concluding that the Applicant did not satisfy the factors required to be allowed a longer period to ask for reconsideration?

[19] I find that there is no arguable case that the General Division made a serious error in its findings of fact.

[20] The General Division considered the evidence in the documentary record. It considered the Applicant’s reasons for delay, including the fact that he sent a letter of reply to the initial decision, rather than an appeal; his explanation that his travel document had been stolen and that someone else had used it to travel; and his arrest in 2013.

[21] The General Division considered the Applicant’s circumstances and found that he had not met any of the four factors needed for the Respondent to consider allowing him more time to ask for reconsideration.^{Footnote 6}

[22] In the Application, the Applicant argues that: he did not travel outside of Canada, his travel document was stolen, and someone else must have used it to travel—this travel is what the Respondent used as proof that the Applicant had been outside of Canada; he did not know that he had to appeal the September 2012 decision; he was told by Service Canada staff to send a letter, which he did; he was not told to file an appeal; and he has additional documents to submit: an Adult Conditional Sentence Order for an offence in December 2013 dated 2015/12/09 and an Adult Probation Order for an offence in December 2013 dated 2015/12/11.

[23] The Applicant’s submissions before the General Division included each of these arguments. The General Division noted these submissions in its decision.^{Footnote 7} The Applicant basically seeks to reargue his case based on arguments similar to those he made before the General Division. A simple repetition of his arguments falls short of disclosing a ground of appeal that is based on a reviewable error.

[24] Only one of the two documents attached to the Application was new: the Adult Conditional Sentence Order. The Adult Probation Order was already in the record at the General Division. This new document, however, does not contain any new information. It relates to the Applicant’s arrest in December 2013; the General Division had already considered this.

[25] Furthermore, new evidence is not a ground of appeal to the Appeal Division. It was up to the Applicant to present any evidence he had to the Commission and to the General Division before or at the hearing.

Conclusion

[26] I am satisfied that the appeal has no reasonable chance of success, so the Application is refused.