Employment Insurance (EI)

Decision

[1] An extension of time to apply for leave (permission) to appeal is refused. The appeal will not be going ahead.

Overview

[2] The Applicant, Q. Y. (Claimant),is appealing the General Division decision. The General Division found that the Claimant was late when she applied for Employment Insurance benefits in February 2021. The General Division also found that the Claimant had not shown that she had good cause for not applying for benefits earlier, on August 30, 2020. The General Division decided that it could not antedate (backdate) the Claimant’s application as if she had made it earlier.

[3] The Claimant argues that the General Division failed to follow rules of procedural fairness.

[4] Before the Claimant can move ahead with her appeal, I have to decide whether the appeal has a reasonable chance of success. There is also the issue about whether the Claimant filed her application on time. Either way, the Claimant has to have an arguable case for her appeal to go ahead.

[5] I find that the Claimant does not have an arguable case. For that reason, I am refusing to give permission to the Claimant. The appeal will not go ahead.

Preliminary matter

[6] There is an issue over whether the Claimant even received the General Division decision that she is appealing. In her Application to the Appeal Division, the Claimant wrote, “I don’t received yet & don’t know about it.”

[7] If the Claimant did not receive the General Division decision, then the clock has not started running on when the Claimant has to file an application to the Appeal Division. Her application to the Appeal Division filed on February 3, 2022, would not be late.

[8] Yet, the Claimant explained why she was appealing the General Division decision. Why would the Claimant explain why she was appealing the General Division decision if she did not receive it?

[9] The Claimant argues that the General Division did not follow rules of procedural fairness. She wrote:

I filed my decision on “my tribunal file number is GE-21-1672” on October 25^th, 2021, after they don’t consider & sent me a copy of decision on November first week they told me in phone, But I can’t receive that decision, then I called you in December & January for reconsideration of my application, & they said, “in telephone call they send me an email or mail” to resubmit the reason you are late, but they don’t send anything in an email or mail till to than, I call back many times now a lady call me today and then send me the form by email, where I put all my information to reconsideration of my case once again. [sic - misspellings corrected]^{Footnote 1}

[10] The Claimant repeated this passage when explaining why she was late with her application. She added that she sent in all supporting documents with her previous application. And “you have the access in IRCC where all my information is there & sent you a copy of my previous Documents in previous decesion & my pay stub as well, please check & reconsider my file for a win win situation. [sic]” ^{Footnote 2}

[11] If the Claimant did not get a copy of the General Division decision, why would she explain why she was late in filing her application to the Appeal Division? And how would the Claimant know that she was late in the first place, if she did not get a copy of the General Division decision?

[12] The Social Security Tribunal (Tribunal) typically does not tell claimants how they can appeal General Division decisions until after they get them. If the Claimant did not get a copy of the General Division decision, it is also unclear how she knew about the appeals process, let alone explain why she even filed an application to the Appeal Division.

[13] Information about the appeals process is on the Tribunal’s website. But, one would not expect a claimant to access and complete the application to the Appeal Division unless the need arose.

[14] The Tribunal wrote to the Claimant on February 24, 2022, to confirm whether she had already received the General Division. The Tribunal also sent her a copy of the General Division decision. The Tribunal asked the Claimant several questions, as follows:

1. Did you get a copy of the General Division decision before today?
2. If so, when did you get a copy of the General Division decision?
3. Why are you appealing the General Division decision? You say the General Division did not follow rules of procedural fairness. Are there any other mistakes you say the General Division made, such as a legal or factual error? If so, explain in full detail what these mistakes are. For example, if you say the General Division ignored some of the evidence, say what this evidence is and where it can be found in the General Division file by giving the page number(s).
4. You say the General Division did not follow rules of procedural fairness. Explain how the General Division did not follow rules of procedural fairness. Why do you say the General Division did not follow rules of procedural fairness? When do you say this happened?

[15] The Tribunal gave the Claimant until March 4, 2022 to respond.

[16] The Tribunal phoned the Claimant on February 28 and March 1, 2022. Each time, the Tribunal left a voice mail message, with the caller’s name and contact information. The caller asked the Claimant to call back. On March 9, 2022, the Tribunal sent an email message to the Claimant, asking her to contact the Tribunal.

[17] To date, the Claimant has not responded.

[18] The Claimant suggests in her application to the Appeal Division that she did not receive the General Division decision. But, I am prepared to find that the Claimant did in fact receive the General Division decision because:

• The Tribunal sent a copy of the General Division decision by email to the parties on September 29, 2021. Section 19(1) of the Social Security Tribunal Regulations (Regulations) deems such decisions to have been communicated to the parties the next business day after the day on which it is transmitted, if sent by email.
• The Tribunal’s letter of September 29, 2021, was the first time that the Tribunal told the parties how they could appeal the General Division decision. The Tribunal typically does not direct parties to the appeals process until it sends the General Division decision to them.
• On October 18, 2021, the Claimant phoned the Tribunal. She had new information that she wanted the General Division to look at. She wanted to ask the General Division to rescind and change its decision. She wanted to make a rescind or amend application. The Claimant would likely only be asking the General Division to change its decision if she knew what the General Division had decided.
• The General Division member told the Claimant at the hearing on September 27, 2021, when to expect to receive her decision. The member told her that she could expect to receive a decision the next day or maybe up to a week later. If the Claimant did not receive the decision shortly after the hearing, it would be unusual that she would not have asked the Tribunal about the decision when she called on October 18, 2021.^{Footnote 3}
• In her application to the Appeal Division, the Claimant argued the General Division did not follow rules of procedural fairness.
• The Tribunal wrote to the Claimant on February 24 and again on March 9, 2022, about her application. The Tribunal also phoned the Claimant twice. She has not responded.

[19] Along with the deeming provisions under section 19(1) of the Regulations, these considerations lead me to believe that the Claimant did in fact get a copy of the General Division decision on September 30, 2021. She seemed to know the outcome of the General Division decision and she knew about the appeals process.

Issues

[20] Is there an arguable case that the General Division made any jurisdictional, procedural, legal, or factual errors?

Analysis

The application was late

[21] The Claimant did not file her application on time. She had 30 days to file after getting the General Division decision.^{Footnote 4} Under section 19(1) of the Regulations, the Claimant is deemed to have received the General Division decision on September 30, 2021.

[22] The Claimant filed her application on February 3, 2022. This was more than 30 days after she got the General Division decision.

[23] Because the Claimant did not file her application on time, she has to get an extension of time. If the Appeal Division does not grant an extension of time, this means that the Appeal Division will not consider the Claimant’s application for leave to appeal. This would end the Claimant’s appeal of the General Division decision.

I am not extending the time for filing the application

[24] The Appeal Division may grant an extension if the application is not late by more than a year.^{Footnote 5} When deciding whether to grant an extension, I have to consider certain factors.^{Footnote 6} These factors include whether:

• there is an arguable case on appeal or some potential merit to the application
• there are special circumstances or a reasonable explanation for the delay
• the delay was excessive
• the Respondent, the Canada Employment Insurance Commission (Commission) will be prejudiced if I grant an extension and
• the Claimant had a continuing intention to pursue the application.^{Footnote 7}

[25] A claimant does not have to meet all of these factors. And, the importance of each could be different, depending on the facts of the case. But the most important consideration is whether the interests of justice are served by granting an extension.^{Footnote 8}

[26] If a claimant does not have an arguable case, it is against the interests of justice to grant an extension. This is because if a claimant does not have an arguable case, the Appeal Division has to refuse leave (permission) to appeal. A claimant needs to have an arguable case so they can move ahead with their appeal. If they do not have an arguable case, which is another way of saying their appeal has no reasonable chance of success,^{Footnote 9} their appeal does not go ahead. ^{Footnote 10}

[27] For this reason, I will focus on whether the Claimant has an arguable case.

[28] The Claimant says that the General Division did not follow rules of procedural fairness. However, she did not give any details or explain how the General Division did not follow rules of procedural fairness. In my review of this matter, I do not see any instances where the General Division (or Social Security Tribunal) failed to ensure that the process was fair:

• The Claimant received notice of the hearing. The Claimant attended the hearing, along with her nephew. He explained that he would help and ensure that she understood what was going on. He also testified on behalf of the Claimant.

  Though English may not be the Claimant’s primary language, the Claimant was able to understand what was going on during the hearing. The Claimant also confirmed that she was fluent in English and understood the General Division member. The Claimant was fully responsive to any questions.

  The member also told the Claimant and her nephew that if she did not understand, that they should let the member know. That way, the member could try to rephrase what she was saying. And, if the Claimant still did not understand, then the member said that she would adjourn the hearing to another day, so that an interpreter could be arranged.

• The Claimant understood the case she had to meet. She wanted her application antedated (backdated). She understood that she was late when she applied for Employment Insurance benefits. She also understood that she had to show that she had good cause if she wanted the Commission to backdate her application.
• The General Division member gave the Claimant a full and fair chance to present her case. The Tribunal invited the Claimant to file any records. The member let the Claimant and her nephew give evidence and explain the Claimant’s case.

[29] The Claimant filed records after the General Division hearing. The General Division member did not consider these records. But, by then, the member had already issued a final decision, so she could not consider these records.^{Footnote 11}

[30] None of this suggests that the Claimant did not get a fair hearing or that the process at the General Division was unfair.

[31] The Claimant is also asking for a reconsideration of the General Division’s decision and to give a different decision that is favourable to her. However, the Claimant has to show that the appeal has a reasonable chance of success or that she has an arguable case. This is different from getting a reassessment of the case.

[32] I have reviewed the underlying record, to ensure that the General Division did not misconstrue or mischaracterize any important evidence. The General Division’s findings are consistent with the evidence.

[33] I also do not see that the General Division made any legal errors. The General Division recognized that it had to consider whether the Claimant acted like a reasonable and prudent person would have done in similar circumstances. The General Division determined that the Claimant had to show that she tried to learn about her rights and responsibilities as soon as possible and as best as she could.

[34] The Claimant now suggests that medical issues affected her ability to file an application for Employment Insurance benefits on time. However, the General Division did not have this information at the time. The Appeal Division does not consider new evidence of this nature. If the Claimant wants to try to rely on this new information, she should consider making an application to rescind or amend, although she would have to meet certain requirements to be able to succeed on such an application.

[35] As the Claimant does not have an arguable case, I find that it is against the interests of justice to grant an extension of time.

Conclusion

[36] An extension of time is refused. The appeal will not be going ahead.