Employment Insurance (EI)

Decision and Reasons

Decision

[1] An extension of time to apply for leave to appeal is refused.

Overview

[2] I. S. (Claimant) was separated from employment. He received pay in lieu of notice and vacation pay when his employment ended, and began to receive Employment Insurance benefits in January 2017. The Claimant made biweekly claims for benefits until June 28, 2017, when he stopped because he received severance pay at that time. He submitted the next claim in September 2017. The Canada Employment Insurance Commission made two decisions: to allocate the severance pay to the week of separation from work which resulted in an overpayment, and to refuse the Claimant’s request to antedate his claim reports to June 25, 2017.

[3] The Claimant appealed these decisions to the Tribunal. The Tribunal’s General Division dismissed the appeal regarding the allocation of funds, and allowed the appeal regarding antedating his claim. The Claimant’s request for leave to appeal the General Division’s decision to the Tribunal’s Appeal Division was filed late, and an extension of time to file the application is refused because the Claimant has not presented a ground of appeal on which the appeal has a reasonable chance of success.

Issues

[4] Was the application for leave to appeal filed late?

[5] If not, should an extension of time to file the application be granted?

Analysis

Issue 1: Was the application late?

[6] The Department of Employment and Social Development Act (DESD Act) governs the Tribunal’s operation. It states that an appeal to the Appeal Division must be made within 30 days of when the General Division decision is communicated to the Claimant.^{Footnote 1} The General Division decision is dated July 23, 2018. The Social Security Tribunal Regulations state that a document is deemed to have been received by a person ten days after it was mailed to them.^{Footnote 2} Therefore, the Claimant is deemed to have received the General Division decision in early August 2018. The Claimant’s application to the Appeal Division was received by the Tribunal on February 12, 2019,^{Footnote 3} which is far more than 30 days after August 2018. In this application the Claimant also acknowledges that it was made late. Therefore, the application was filed late.

Issue 2: Should time to file the application be extended?

[7] The DESD Act says that the Appeal Division can extend the time for an application to be made.^{Footnote 4} The Federal Court instructs that the following factors should be considered when deciding whether to extend time:

1. Is there a continuing intention to pursue the application;
2. Is there is a reasonable explanation for the delay;
3. Is there is any prejudice to the other party in allowing the extension; and
4. Does the matter disclose an arguable case?^{Footnote 5}

[8] The weight to be given to each of these 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 6}  In this case, the Claimant’s application provided an explanation for filing the appeal late, being that his house burned down. This is a reasonable explanation for the delay. I am also satisfied that the Claimant had a continuing intention to appeal because the entirety of the delay is explained by this situation.

[9] There is nothing in the written record regarding any prejudice to any party, so I cannot make any finding regarding this.

[10] Legally, whether there is an arguable case on appeal is the same as whether the appeal has a reasonable chance of success. This is the test that must be met to be granted leave to appeal under the DESD Act.^{Footnote 7} This Act also sets out only three grounds of appeal that can be considered. They are that the General Division failed to observe a principle of natural justice or made a jurisdictional error, made an error in law, or based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.^{Footnote 8}  Therefore, to be granted leave to appeal the Claimant must present at least one ground of appeal that falls under the DESD Act and on which the appeal has a reasonable chance of success.

[11] The Claimant checked the box in the application form to indicate that the appeal was based on the General Division having made an error in law. However, the Claimant did not set out what that alleged error was. The Tribunal wrote to the Claimant, explained what grounds of appeal the Appeal Division can consider, and asked that he provide grounds of appeal under the DESD Act. The Claimant requested additional time to provide this. He was granted additional time, but has not provided any further information to the Tribunal.

[12] I have read the General Division decision and the written record. Nothing suggests that  General Division made any error in law. The General Division did not overlook or misconstrue any important information; it did not base its decision on any erroneous findings of fact. There is no suggestion that the General Division failed to observe a principle of natural justice.

[13] The Claimant has therefore not presented any ground of appeal that falls under the DESD Act on which the appeal has a reasonable chance of success. It is not in the interests of justice to extend the time to file an application when it has no reasonable chance of success on its merits.

Conclusion

[14] An extension of time to apply for leave to appeal is therefore refused.