Employment Insurance (EI)

Decision and reasons

Decision

[1] The appeal is allowed. The matter is returned to the General Division to reconsider its decision.

Overview

[2] The Appellant, F. B. (Claimant), was temporarily laid off by his employer in May 2018. Shortly afterwards, he left Canada to visit his sick father. He returned to Canada in October 2018, but he did not apply for Employment Insurance benefits until April 2019. He asked to have his claim backdated to May 2018 but the Respondent, the Canada Employment Insurance Commission (Commission) refused. The Commission did not accept that the Claimant had good cause for delaying his application. It maintained this decision after the Claimant asked it to reconsider.

[3] The Claimant appealed the Commission’s reconsideration decision to the General Division of the Social Security Tribunal. The General Division dismissed his appeal and the Claimant is now appealing to the Appeal Division.

[4] The appeal is allowed. The General Division’s reasons are so inadequate that they constitute an error of law.

What grounds can i consider for the appeal?

[5] “Grounds of appeal” are the reasons for the appeal. To allow the appeal, I must find that the General Division made one of these types of errors:^{Footnote 1}

1. The General Division hearing process was not fair in some way.
2. The General Division did not decide an issue that it should have decided. Or, it decided something it did not have the power to decide.
3. The General Division based its decision on an important error of fact.
4. The General Division made an error of law when making its decision.

Issue(s)

[6] Did the General Division make an error of law by supporting its decision with inadequate reasons?

[7] Did the General Division make an important error of fact by overlooking or misunderstanding the Claimant’s explanation for his delay in the period from April 10, 2019, to May 3, 2019?

Analysis

Inadequate reasons

[8] The General Division accepted that the Claimant’s employer gave him information that led the Claimant to believe he was ineligible for benefits. It did not specifically state that it accepted the Claimant’s reason as good cause for the delay, or good cause for any part of the delay.

[9] However, the General Division did state that the Claimant had not shown good cause for the delay other than the period leading up his return to Canada on October 17, 2018. From this, I might infer that the General Division accepted that the Claimant had good cause before October 17, 2018. The only explanation the Claimant had given for his delay to that point was that he was relying on what his employer told him. Therefore, I might conclude that the General Division accepted that the Claimant’s reason that he was misinformed about his eligibility meant that he had had good cause; but only to October 17, 2018.

[10] If I were to read the decision this way, then the General Division’s reasons would still not explain why the Claimant had good cause up to October 17, 2018, but not afterwards. The Claimant’s reason for delaying did not change, at least not until April 10, 2019. The General Division justified its decision by saying, “Upon his return to Canada it was not his intention to apply which indicates he knew he could.” However, this is contrary to evidence on the file. The Claimant told the Commission that he did not intend to apply because he expected a recall within 6 weeks. In context, this remark appears to describe his intention at the time that his employer initially laid him off. The Claimant also said—in the same conversation—that he did not apply because he did not think he could.^{Footnote 2} When he said this, he was referring to the time that his employer laid him off permanently—which was after his return to Canada.

[11] The Claimant’s statement that he did not apply does not suggest that he knew he could apply. Such a conclusion would not follow necessarily even in the absence of evidence to the contrary, but the Claimant expressly said that he did not know he could apply. Therefore, I do not accept that the General Division gave any intelligible reason for why the Claimant’s reason for delay was good cause before he returned to Canada, but not afterwards.

[12] On the other hand, it is possible to read the decision as suggesting that the Claimant may have had good cause after he returned to Canada, but only until April 10, 2019. Immediately following its acceptance of the Claimant’s explanation that he had been misinformed by his employer, the General Division says this: “That being said, when [the Claimant] was advised on April 10, 2019, by COSTI to apply, he still waited until May 3, 2019, before applying.” In its context, this statement could imply that the Claimant had good cause until April 10, 2019, which was when a provincial government program (COSTI) advised him to apply.

[13] If I were to accept this second interpretation, then the General Division should have considered the Claimant’s evidence about his continued delay after April 10, 2019. The Claimant asserted that he went to Service Canada on April 10, immediately after meeting with COSTI but that the Service Canada office was closed. He returned to Service Canada after his COSTI appointment on April 17 and an agent instructed him to apply online. He said the agent told him to include an explanation for why his application was late. The Claimant made repeated attempts to log on to the online application process, but it took a few days before he could gain access. Then he made a number of exploratory efforts to include an explanation for why his application was late before he gave up. He finally submitted his online application without the explanation, and he mailed the explanation to the Commission separately.^{Footnote 3} The General Division does not refer to any of this evidence or explain why the Claimant did not have good cause between April 10 and May 3, 2019.

[14] I granted leave because I found that there was an arguable case that the General Division’s (implied) finding that the Claimant’s reason was not good cause after he returned to Canada was perverse or capricious. I considered that the Claimant could make an argument that this statement that he did not intend to apply did not necessarily mean that he knew he could apply. I thought that he could argue that his supposed intention did not invalidate his excuse for delaying.

[15] In my leave decision, I also discovered an arguable case that the General Division might have made an important error of fact by ignoring the Claimant’s entire explanation for his continued delay after April 10, 2019. This would only be important to the decision if the Claimant otherwise had good cause to April 10, 2019.

[16] The Commission has conceded that the General Division made an error on the basis that the General Division’s reasons are not transparent or intelligible. When I consider that the decision is capable of different interpretations, I find that I must agree with the Commission.  The Federal Court has stated that a reviewing court must be able to “understand why the tribunal made its decision and [reasons must] permit it to determine whether the conclusion is within the range of acceptable outcomes.”^{Footnote 4} I cannot understand on what basis the General Division reached its decision, and I expect that the Claimant would likewise have difficulty. This prejudices the Claimant’s ability to mount an effective appeal. Therefore, I find that the General Division made an error of law by supporting its decisions with inadequate reasons.

[17] Having found that the General Division made an error, I must now turn to the appropriate remedy.

Remedy

Nature of remedy

[18] I have the authority to change the General Division decision or make the decision that the General Division should have made.^{Footnote 5} I could also send the matter back to the General Division to reconsider its decision.

[19] I am unable to review the evidence that the General Division heard because there is no audio recording of its hearing. Because of this, the Commission argues that the record is not complete and that I must send the matter back to the General Division for reconsideration.

[20] The Claimant argues that this is a simple matter and that it should be clear that I must decide in his favour. He does not want any additional delay so he urges me to make the decision. He also suggests that there is enough information in the Commission file and in his submissions to the General Division that I should be able to make the decision, even if I do not have the audio record of the hearing.

[21] I have reviewed the record and I do not agree that this is a simple matter. Higher courts have handed down decisions that govern the sort of reasons for delay that the Social Security Tribunal may accept as good cause. There have been decisions that have found certain reasons to be good cause, and other decisions that have stated that other reasons are not good cause.^{Footnote 6} I cannot be sure whether the Claimant provided additional evidence that would align his own reasons or circumstances with any of those decisions, or exclude his own reasons or circumstances from the authority of any of those decisions. In order to apply the law to the facts, I would need to review the audio recording of the General Division hearing. That recording is not available.

[22] Therefore, I am returning the matter to the General Division for reconsideration. I direct the General Division to hold a new oral hearing to the extent that this is practicable, and to consider any new evidence that the Claimant may wish to present.

Conclusion

[23] The appeal is allowed. The matter is returned to the General Division for reconsideration.