Employment Insurance (EI)

Decision and Reasons

Decision

[1] The appeal is allowed and the matter is referred back to the General Division for reconsideration.

Overview

[2] R. G. (Claimant), applied for benefits on November 27, 2017. The Respondent, the Canada Employment Insurance Commission (Commission), sent letters to the Claimant dated December 1 and December 28, 2017, advising him that the personal information submitted in his online application did not match his social insurance records. The Commission told the Claimant that they required evidence of his legal status from Immigration, Refugees and Citizenship Canada. The Claimant provided a copy of his permanent residency card on January 20, 2020. The Commission determined that the Claimant did not show good cause for the delay in providing his identification documents and denied him employment insurance (EI) benefits.

[3] The Claimant appealed the Commission’s decision to the General Division arguing that it took about two years to receive his permanent residency card and he submitted all of his documents. The General Division dismissed the appeal, finding that the Claimant did not prove he had good cause for the entire period of delay. The General Division found that it was more likely than not that the Claimant received the permanent residency card in June or July of 2019 and that a reasonably prudent person in similar circumstances would have submitted it when it was received.

[4] The Claimant is appealing the General Division’s decision. He argues that the General Division decision was procedurally unfair because his aunt, who was assisting him with the appeal and had assisted him in applying for his permanent residency card, did not attend the hearing. The Commission acknowledges that the General Division erred in failing to provide a fair process when it did not adjourn the hearing to allow the Claimant’s aunt to attend.

[5] The Commission requests that the appeal be allowed and the matter returned to the General Division for reconsideration. The Claimant would like to have the matter resolved and have the decision made in his favour.

Issue

[6] Did the General Division fail to provide a fair process when it did not offer the Claimant an adjournment to allow his aunt to attend the hearing?

Analysis

[7] Under section 58(1) of the Department of Employment and Social Development Act (DESDA), the Appeal Division can intervene in the General Division’s decision in very limited circumstances. The section does not give the Appeal Division the jurisdiction to reassess the evidence.^{Footnote 1} The Appeal Division can intervene only if there has been a breach of natural justice, an error of law or if it based its decision on an error of fact made in a perverse or capricious manner or without regard for the material before it.

Issue: Did the General Division fail to provide a fair process when it did not offer the Claimant an adjournment to allow his aunt to attend the hearing?

[8] I find that the General Division failed to provide a fair process when it did not offer the Claimant an adjournment.

[9] The Claimant argues that he is functionally illiterate and requires help reading and responding to correspondence from the Commission. His aunt had planned on attending the hearing at the General Division to provide assistance. She also had relevant evidence to offer because she had helped the Claimant with his application for his permanent residency card.^{Footnote 2}

[10] The Claimant’s aunt is his representative before the Appeal Division but was not acting as his representative at the hearing before the General Division.^{Footnote 3} As the General Division notes in its decision, she had contacted the Tribunal the day before the hearing and advised that she wished to participate.^{Footnote 4} She told the agent that she spoke with that she was not acting as the Claimant’s representative. When the Claimant’s aunt did not call into the hearing, the General Division member waited to see if she connected. The member asked the Claimant if he wanted to begin without her and he stated that he did.^{Footnote 5}

[11] After the Claimant’s testimony, the General Division member disconnected the teleconference to allow the Claimant an opportunity to try to contact his aunt.^{Footnote 6} The hearing resumed ten minutes later and the Claimant stated that he had been unable to reach her.^{Footnote 7} The General Division member noted that the Claimant was unable to answer many of her questions regarding his application for permanent residency because his aunt had helped him with that process. The member indicated that she felt she needed to hear from the aunt.^{Footnote 8} The General Division member offered an opportunity for the Claimant’s aunt to provide a written statement after the hearing.^{Footnote 9} The Claimant did not want this because he felt that he had already given all of the information he had and asked the General Division member to make a decision based on his evidence.^{Footnote 10}

[12] The record shows that the General Division member provided the Claimant with an opportunity to contact his aunt and to allow her to send in a statement after the hearing. However, the Claimant has stated his difficulty with formal communication in English. Once it became apparent to the General Division member that the Claimant`s aunt had important information that was relevant to the appeal, and had told the Tribunal that she planned to attend, the member should have offered the Claimant the option of adjourning the hearing. The option of allowing the aunt to send information after the hearing is not sufficient given the Claimant’s stated issues with literacy and formal communication in English. The General Division member had questions for the Claimant’s aunt and it is not clear that the aunt would have known what information needed to be provided after the hearing.

[13] Failing to allow the Claimant the opportunity to adjourn the hearing resulted in a breach of procedural fairness and the Claimant did not have an opportunity to fully present his case.

Remedy

[14] I have the authority to make the decision that the General Division should have made.^{Footnote 11} I can also refer the matter back to the General Division for reconsideration.

[15] The Commission submits that the matter should be referred back to the General Division for reconsideration because the record is incomplete.

[16] The Claimant asks that I make a decision allowing his appeal, but is also not opposed to the matter being sent back to the General Division. The Claimant says that there is information already on the record that is sufficient to allow the appeal. He argues that the record shows that he had applied for benefits in the past and was not asked for documents to confirm his identity. His representative also argued that he was able to receive other social benefits without issues regarding his identity and referred to bank account records that were not before the General Division.

[17] I do not agree that the record is complete. In her submissions, the Claimant’s representative referred to information that was not before the General Division. I cannot consider evidence that was not before the General Division. The fact that the Claimant’s representative wished to rely on such information highlights the fact that the record is incomplete and that the matter should be heard again with an opportunity for the aunt to give evidence.

[18] The General Division member noted that she felt that the Claimant’s aunt had relevant evidence to offer regarding the application process for a permanent residency card, and when the card was received. I have found that the General Division failed to provide a fair process when it did not give the Claimant the option of adjourning the hearing to allow his aunt to participate, as she had intended. A stated above, in my view the Claimant should have the opportunity to have his aunt participate in a hearing before the General Division.

[19] I am sending the matter back to the General Division for reconsideration to allow the Claimant the opportunity to fully present his case.

Conclusion

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