Employment Insurance (EI)

Decision and reasons

Decision

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

Overview

[2] The Applicant, T. W. (Claimant), requested a reconsideration of a decision of the Respondent, the Canada Employment Insurance Commission (Commission), on July 4, 2017. The original decision, in which the Commission found that the Claimant had made false or misleading statements resulting in an overpayment, was dated May 13, 2016. The Commission rejected the reconsideration request on the basis that the request was made more than a year after the 30-day time limit to request a reconsideration. 

[3] The Claimant appealed to the General Division of the Social Security Tribunal, (Tribunal) which found that the reconsideration request was late but not more than a year after the date the decision was communicated to the Claimant. It found that the Commission had exercised its discretion injudiciously, so the General Division substituted its own decision. Unfortunately for the Claimant, the General Division still found that the Claimant did not meet the criteria for an extension of time, so the Claimant’s appeal was dismissed. The Claimant now requests leave to appeal this decision to the Appeal Division of the Tribunal.

[4] The appeal has no reasonable chance of success. The Claimant has not identified any error in the General Division decision, and I have been unable to find any significant evidence that was misunderstood or ignored. There is no arguable case that the General Division erred under section 58(1)(c) of the Department of Employment and Social Development Act (DESD Act).

Issue

[5] 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 the evidence before it?

Analysis

General principles

[6] 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.

[7] However, the Appeal Division may intervene in a decision of the General Division only 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 DESD Act.

[8] The grounds of appeal are as follows:

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.

[9] Unless the General Division erred in one of these ways, the appeal cannot succeed, even if the Appeal Division disagrees with the General Division’s conclusion.

[10] To grant this application for leave and permit the appeal process to move forward, I must find that there is a reasonable chance of success on one or more grounds of appeal. A reasonable chance of success has been equated to an arguable case.^{Footnote 1}

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 the evidence before it?

[11] On his leave to appeal form, the Claimant selected the option indicating that his appeal is based on the General Division having made an important error regarding the facts. This selection corresponds to the ground of appeal set out at section 58(1)(c)—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 the evidence before it.

[12] The Claimant elaborated on his ground of appeal, explaining that his personal file includes certain incorrect information related to his Employment Insurance benefits and disability benefits.

[13] The Commission made a decision on May 13, 2016 in which it found that the Claimant had made false statements that resulted in an overpayment. However, this was not the issue that was before the General Division. Under section 113 of the Employment Insurance Act (EI Act), the General Division has jurisdiction to consider only the reconsideration decision of the Commission. In the Claimant’s case, the Commission refused to reconsider its decision because the Claimant’s request was received late.

[14] Therefore, the only issues that were before the General Division were whether the Claimant’s request was late, whether the General Division properly exercised its discretion when it refused the late reconsideration request, and, ultimately, whether the late request for reconsideration should be allowed.

[15] On these issues, the General Division found as follows:

• The Claimant’s request was more than 30 days late and, therefore, outside the time permitted under section 112(1)(a) of the EI Act. However, the General Division also found that the request for reconsideration was less than one year late, and therefore the additional requirements set out under section 1(2) of the Reconsideration Request Regulations (Request Regulations) do not apply.
• The Commission had taken irrelevant considerations into account by applying section 1(2) of the Request Regulations and, therefore, the Commission had exercised its discretion injudiciously. This meant that the General Division could make the decision the General Division should have made, applying only the relevant considerations.
• The General Division applied section 1(1) of the Request Regulations. The test under this section states that there must be a reasonable explanation for requesting more time and the person requesting the reconsideration must have demonstrated a continuing intention to make the request. The General Division determined that the Claimant demonstrated a continuing intention to make the request but that he did not have a reasonable explanation for the delay.

[16] In his application for leave to appeal, the Claimant did not explain how the incorrect information in his personnel file was relevant to the issue of whether his request was actually late or to the issue of whether he had a reasonable explanation for the delay. The Claimant did not identify any other relevant evidence that was ignored or misunderstood.

[17] I caused a letter to be sent to the Claimant on September 20, 2018, in which I requested that the Claimant clarify his grounds of appeal and identify some error in the General Division decision. The Claimant did not respond before the October 22, 2018, deadline that I had imposed, however he called the Tribunal on October 29, 2018, to ask for an extension of time to provide some additional explanation.

[18] The Tribunal allowed him an extension to November 15, 2018, but warned the Claimant that it would make the decision on the basis of the information already filed, if the Claimant did not submit anything else by that date. The Claimant called again on November 14, 2018, and asked for another extension. The Tribunal asked him to make this request in writing and to provide reasons. The Tribunal received a fax from the Claimant on November 15, 2018, that said only “Family Issues.”

[19] The Tribunal then left a message on the Claimant’s voicemail informing him that the Tribunal would not grant him an extension of time to provide additional submissions and would be making a decision on his leave application. The same  message also informed the Claimant that the Tribunal would accept and review any additional explanation he wished to provide, if the Tribunal received it before it finalized the decision.

[20] On December 3, 2018, the Tribunal received additional information from the Claimant, related to wage loss insurance payments and perceived errors in the Commission’s file. The Claimant did not explain how any of this information was relevant to the question of why his request for reconsideration was filed late, which is the issue before me. The additional information does not assist the Claimant to establish that he had a reasonable explanation for the delay in requesting a reconsideration of the original Commission decision.

[21] Although the Claimant has not identified any error in the General Division decision, the Federal Court has directed the Appeal Division to look beyond the stated grounds of appeal. In Karadeolian v Canada (Attorney General), the Court stated as follows: “the Tribunal must be wary of mechanistically applying the language of section 58 of the [DESD] Act when it performs its gatekeeping function. It should not be trapped by the precise grounds for appeal advanced by a self-represented party like [the applicant in that case].”^{Footnote 2}

[22] Accordingly, I have reviewed the record, but I have been unable to discover any other significant evidence that might have been ignored or overlooked and that I may accept as raising an arguable case that there were erroneous findings on which the General Division decision was based.

[23] There is no arguable case that the General Division based its decision that the claimant did not have a reasonable explanation for his delay in requesting a reconsideration on “an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the evidence before it”^{Footnote 3}.

[24] The Claimant does not have a reasonable chance of success on appeal.

Conclusion

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