Employment Insurance (EI)

Reasons and decisions

Decision

[1] I grant the Appellant (B. F.) an extension of time to file her appeal.

[2] This means that the Social Security Tribunal (Tribunal) will now schedule her appeal hearing, and send her a notice of hearing.

Overview

[3] The Appellant lost her job as a Registered Nurse on December 31, 2021. Then she applied for Employment Insurance regular benefits.

[4] The Canada Employment Insurance Commission (Commission) decided that she wasn’t entitled to receive EI benefits because she lost her job due to misconduct under the Employment Insurance Act (EI Act).

[5] She asked for a reconsideration of the Commission’s decision. The Commission sent the Appellant its reconsideration decision, dated May 26, 2022.

[6] The law gives an Appellant 30 days to file an appeal of the Commission’s reconsideration decision.^{Note de bas de page 1} So, she had until Monday, June 27, 2022 to file her notice of appeal.

[7] The Social Security Tribunal (Tribunal) received her appeal on September 9, 2022. This means her appeal was late.

[8] I must decide whether to allow the Appellant an extension of time to file her appeal.

[9] Section 52(2) of the DESD Act gives me the power to make this decision.

Analysis

[10] In deciding whether to extend the time to appeal, I have to consider and weigh four factors—the Gattellaro factors:^{Note de bas de page 2}

• the appellant’s continuing intention to pursue the appeal
• whether the appeal raises an arguable case
• whether there is a reasonable explanation for the delay
• whether the delay prejudiced other party(ies) to the appeal

[11] The weight the Tribunal gives to each factor may be different in each case. And in each case, some factor may not be as relevant as others.

[12] The most important thing is that my decision serves the interests of justice.^{Note de bas de page 3}

The Appellant’s Evidence

[13] In her appeal notice the Appellant gave the following reasons she delayed filing her appeal:^{Note de bas de page 4}

• she fell into a depression after losing her job and being refused EI benefits
• due to her job loss, she and her family had to sell their house and move, and figure out how to survive
• this was a very difficult and emotionally taxing time for her
• she needed time to heal and reduce some of the stress associated with these events
• she spoke with someone at the Commission who told her she would have a chance to explain why her appeal was late, and the Tribunal would consider her reasons and decide whether to accept it late

[14] She sent a medical certificate of disability with her appeal notice.^{Note de bas de page 5} It says she needed time off work due to mental health issues in the fall of 2021. She went on sick leave at that time.

[15] Her employer terminated her employment before she returned to work.^{Note de bas de page 6}

[16] I accept the Appellant’s evidence. I have no reason to doubt her evidence about her mental health challenges in fall 2021, or about losing her job and her home, or about how this affected her mental health. What she wrote in her notice of appeal is consistent with the medical certificate. It also makes sense that someone who had been on medical leave because of mental health issues would suffer depression when they lost their job and their home.

[17] I also accept that the Appellant needed time to get better in order to file her appeal to the Tribunal. I have no reason to doubt her evidence about this, and it makes sense in the circumstances.

Continuing Intention to Pursue the Appeal

[18] I find that the Appellant had a continuing intention to pursue her appeal, for two reasons.

[19] First, she filed her appeal within a reasonable amount of time, considering her challenging personal circumstances.

[20] Second, her actions show she always intended to appeal. She checked with the Commission about filing a late appeal, and made the decision to take the time she needed for her health to improve enough to file her appeal. And she filed her appeal when she was fit to do that.

Arguable Case

[21] The question of whether an appeal raises an arguable case is almost the same as asking whether it’s plain and obvious her appeal is bound to fail.^{Note de bas de page 7}

[22] I find it’s not plain and obvious her appeal is bound to fail.

[23] The Appellant is appealing the Commission decision that she isn't entitled to get EI benefits because she lost her job due to misconduct.

[24] I have to decide if the Commission has proven that it is more likely than not she lost her job because of misconduct. My decision in her case may depend on her testimony at the hearing—what she says about her conduct, what she knew, and when she knew it.

[25] So, because my decision in her appeal might depend on her testimony, I find she has an arguable case. In other words, based on the documents in the appeal file it isn't plain an obvious her appeal is bound to fail.

Reasonable Explanation for the Delay

[26] Above, I accepted the Appellant’s evidence about her very challenging life circumstances, and about her depression and mental health issues.

[27] Based on this evidence, I find that she has a reasonable explanation for the delay. She was in the best position to manage the stress in her life, and to know what she was capable of doing at a given time because of her mental health. She decided to wait to file her appeal until she was in better health, and to ask for an extension of time when she did.

Prejudice to the Other Party

[28] The Commission is the only other party in the Appeal.

[29] I find the Commission won’t be prejudiced if I grant the Appellant an extension of time to appeal. I make this finding for two reasons. First, the time between the Commission’s reconsideration decision and when the Appellant filed her appeal is nowhere close to the one-year limit for filing an appeal.^{Note de bas de page 8} Second, the Commission is ready to go ahead with the appeal. It’s already sent the Tribunal its documents and arguments.

The interests of justice

[30] I find it’s in the interests of justice to grant an extension of time, for two reason.

[31] First, I make this finding based on all the circumstances of the case:

• relatively short delay in filing the appeal
• significant amount of benefits at stake in the appeal
• fact there is no prejudice to the Commission
• Appellant has a reasonable explanation for her delay and an arguable case

[32] Second, I make this finding based on the Tribunal’s policy on accommodation and accessibility.^{Note de bas de page 9} The Tribunal adopted this policy, in part, to meet its obligations under the Canadian Human Rights Act (Act). These obligations reflect important legal guarantees that promote justice and inclusion for people with disabilities, among other people.

[33] The Appellant’s evidence shows me that she wasn’t able to file her appeal on time because of her mental health issues. These mental health issues are very likely a “disability” under the Act.

[34] Under the Act (and the Tribunal’s policy), the Tribunal has a duty to accommodate her disability-related needs as a way to promote access to our processes. And to encourage full and meaningful participation in the Tribunal’s processes. So, it’s in the interests of justice for me to extend the time for her to file her appeal—as an appropriate accommodation under human rights law of her disability-related needs.

Conclusion

[35] I have considered and applied the Gattellaro factors, and taken into account the interests of justice.

[36] Based on my findings, set out above, I will grant the Appellant an extension of time to file her appeal.

[37] This means the Tribunal will now schedule her appeal hearing, and send her a notice of hearing.