Employment Insurance (EI)

Decision

[1] The appeal is dismissed. I find that the Canada Employment Insurance Commission (Commission) was justified in refusing to extend the 30-day period to ask for a reconsideration.^{Note de bas de page 1}

Overview

[2] On June 10, 2022, the Appellant asked the Commission to reconsider a decision it had made on January 26, 2021.^{Note de bas de page 2}

[3] On August 17, 2022, the Commission told her that it would not reconsider the January 26, 2021, decision. It said that it had looked at her reasons for her late reconsideration request, but it had found that they didn’t meet the requirements of the Reconsideration Request Regulations.^{Note de bas de page 3}

[4] The Commission’s January 26, 2021, decision deals with a request to antedate the Appellant’s claim for benefits.^{Note de bas de page 4}

[5] The Appellant explains that after getting notices of debt, she asked for a reconsideration on June 10, 2022, to challenge the request to pay back the amount she was overpaid in benefits. As for the Commission’s January 26, 2021, decision denying her antedate request, she says that after reading it, she figured that she could not challenge it. She says that around December 2020, she went to a Service Canada Centre to find out whether she could get her claim for benefits antedated; she wanted it to start on March 23, 2020. According to her, the Commission told her that it could not grant her antedate request. Since her antedate request was denied in December 2020, she says she figured that she could not challenge the Commission’s January 26, 2021, decision on this issue. She says that she asked for a reconsideration in June 2022 after getting notices of debt asking her to pay back a $2,000 advance payment of the Employment Insurance Emergency Response Benefit (EI ERB). She explains that the appeal she filed with the Tribunal on September 10, 2022, deals with that repayment request.

Preliminary matters

[6] In this case, I consider that the Commission’s January 26, 2021, decision deals with a request to antedate the Appellant’s claim for benefits to March 23, 2022 [ sic],^{Note de bas de page 5} while the purpose of the Appellant’s June 10, 2022, reconsideration request was to challenge the request to pay back an amount she was overpaid as an advance payment of the EI ERB (overpayment).

[7] After the hearing on April 13, 2023, and in response to a request from the Tribunal, the Commission explained that the Appellant’s June 10, 2022, reconsideration request^{Note de bas de page 6} showed that she wanted the Commission to reconsider the decision asking her to pay back the $2,000 EI ERB advance payment.^{Note de bas de page 7}

[8] The Commission acknowledged that the Appellant’s reconsideration request for this issue wasn’t late and that the decision in question needed to be reconsidered.^{Note de bas de page 8} It said that it had initially made the decision on May 20, 2022.^{Note de bas de page 9}

[9] Following this acknowledgement, the Commission recommended two solutions to the Tribunal: either reconsider, with the Tribunal’s approval, its decision on the issue of paying back the EI ERB advance payment before deciding the issue of antedating the Appellant’s claim for benefits, or reconsider after making its decision.^{Note de bas de page 10}

[10] On May 18, 2023, after getting the Tribunal’s approval, the Commission made a reconsideration decision concerning its May 20, 2022, initial decision about the amount that the Appellant owed for benefits she was overpaid as an advance payment of the EI ERB.^{Note de bas de page 11} In its May 18, 2023, decision, the Commission indicated that it was rescinding the May 20, 2022, decision.^{Note de bas de page 12}

[11] In its arguments, the Commission explains that the Appellant has proven that she was entitled to receive the EI ERB for an additional four weeks, offsetting the $2,000 advance payment, which is the equivalent of four weeks of benefits (four weeks at $500 per week).^{Note de bas de page 13} The Commission says that its May 18, 2023, decision resulted in a write-off of the $2,000 overpayment that was created after the Appellant was paid an equivalent amount as an advance payment of the EI ERB.^{Note de bas de page 14}

[12] With this in mind, my decision deals solely with the request to reconsider the Commission’s decision on the request to antedate the Appellant’s claim for benefits. I would point out that the Commission’s refusal to extend the 30-day period to ask for a reconsideration is in connection with the antedate request.

[13] However, to be clear, my decision doesn’t affect the Commission’s May 18, 2023, reconsideration decision that resulted in a write-off of the $2,000 benefit overpayment that the Appellant owed.

Issue

[14] I have to decide whether the Commission was justified in refusing to extend the 30-day period to ask for a reconsideration.^{Note de bas de page 15}

Analysis

[15] A claimant or other person who is the subject of a decision of the Commission can ask the Commission, in the prescribed form and manner, to reconsider that decision at any time within 30 days after the day the decision is communicated to them, or any further time that the Commission may allow.^{Note de bas de page 16}

[16] The Commission can allow a longer period for a reconsideration request if it is satisfied that there is a reasonable explanation for requesting a longer period and the person has shown a continuing intention to ask for a reconsideration.^{Note de bas de page 17}

[17] The Commission must also be satisfied that the reconsideration request has a reasonable chance of success, and that no prejudice would be caused to the Commission or a party by allowing a longer period to make the request, in the following “particular circumstances”: the reconsideration request (a) is made after the 365-day period after the day the decision was communicated to the person; (b) is made by a person who submitted another application for benefits after the decision was communicated to the person; or (c) is made by a person who has asked the Commission to rescind or amend the decision under section 111 of the Employment Insurance Act.^{Note de bas de page 18}

[18] Given the issue raised in this case, I note that my role is limited to determining whether the Commission exercised its discretion judicially when it denied the Appellant an extension of the 30-day period to ask for a reconsideration concerning the request to antedate her claim for benefits.^{Note de bas de page 19}

[19] The Federal Court of Appeal (Court) has established the principle that discretionary decisions of the Commission should not be interfered with unless the Commission didn’t exercise its discretion judicially.^{Note de bas de page 20}

[20] The Court has also defined “judicially” as acting in good faith, taking into account all relevant factors and ignoring any irrelevant factors.^{Note de bas de page 21}

[21] The Federal Court has confirmed that the Commission’s decision whether to extend the time to ask for a reconsideration is discretionary.^{Note de bas de page 22}

[22] In this case, I find that the Commission has shown that it exercised its discretion judicially when it denied the Appellant an extension of the 30-day period to ask for a reconsideration concerning the request to antedate her claim for benefits.

[23] The Commission argues as follows:

1. a) The Appellant was aware of the Commission’s January 26, 2021, decision, but waited until June 10, 2022, to ask for a reconsideration.^{Note de bas de page 23}
2. b) The Appellant hasn’t shown that she has a reasonable explanation for her delay or that she had a continuing intention to challenge the decision during the period of the delay.^{Note de bas de page 24}
3. c) The substantive issue had no reasonable chance of success given that the Appellant had until December 2, 2020, to claim the EI ERB and didn’t ask for an antedate until January 5, 2021.^{Note de bas de page 25}
4. d) The Commission says that it exercised its discretion “judicially”^{Note de bas de page 26} when it refused to extend the 30-day period to ask for a reconsideration of the decision affecting the Appellant, since it considered all the relevant circumstances when it refused her delay in making her request.^{Note de bas de page 27}
5. e) For the Commission to accept a late reconsideration request, the Appellant has to meet the following four conditions: She has to prove that she has a reasonable explanation for her late reconsideration request, that she had a continuing intention to ask for a reconsideration during the period of the delay, that her reconsideration request has a reasonable chance of success, and that no prejudice would be caused to the Commission or another party by accepting her late reconsideration request. It isn’t enough for her to meet some of these conditions. The Commission doesn’t have to accept the late reconsideration request.^{Note de bas de page 28}

[24] The Appellant’s testimony and statements indicate the following:

1. a) She explains that she received the Commission’s January 26, 2021, decision denying her request for an antedate to have her benefit period start on March 23, 2020.^{Note de bas de page 29}
2. b) Once she read the decision, she figured there was nothing else she could do to get an antedate.
3. c) Around December 2020, she went to a Service Canada Centre to find out whether she could get her claim for benefits antedated. A Commission representative told her that she could not get an antedate.
4. d) She says that because of this, she figured that she could not challenge the Commission’s January 26, 2021, decision on this issue.
5. e) Even though the decision said that she had 30 days following its receipt to ask for a reconsideration, in her opinion, she had already done this when she had previously gone to a Service Canada Centre. She figured that she was out of options. The Commission had told her that [translation] “it was too late” to ask for an antedate. She says that she didn’t understand the concept of a reconsideration request.
6. f) The purpose of her June 10, 2022, reconsideration request was to challenge the request to pay back a $2,000 advance payment of the EI ERB after she started getting notices of debt in early June 2022.^{Note de bas de page 30}

[25] In this case, the evidence shows that the Appellant didn’t meet the 30-day deadline to ask the Commission to reconsider its January 26, 2021, decision.

Reasonable explanation

[26] I find that the Appellant hasn’t given a reasonable explanation for the delay in asking the Commission to reconsider its January 26, 2021, decision on her request to antedate her claim for benefits.

[27] Despite the Appellant’s explanation that she thought she could not ask the Commission to reconsider that decision because it had told her, around December 2020, that it could not grant her antedate request, the fact is that she could ask for a reconsideration.

[28] I find that the Appellant had the opportunity to read the content of the January 26, 2021, decision. It said that she had 30 days to ask for a reconsideration.^{Note de bas de page 31}

[29] In my view, when the Commission made its decision on January 26, 2021, there was nothing stopping the Appellant from asking for a reconsideration within the 30-day time limit.

[30] I agree with the Commission’s finding that the Appellant hadn’t given a reasonable explanation for the delay in asking for a reconsideration of the January 26, 2021, decision.

Continuing intention to ask for a reconsideration

[31] I find that the Appellant hasn’t shown that she had a continuing intention to ask for a reconsideration of the January 26, 2021, decision.

[32] I find that the Appellant had the opportunity to ask for a reconsideration of the decision but chose not to take advantage of it.

[33] The January 26, 2021, decision told the Appellant that she had 30 days following the date of the decision to ask for a reconsideration.^{Note de bas de page 32}

[34] According to the Appellant’s testimony, her intention in asking for a reconsideration in June 2022 wasn’t to challenge the Commission’s refusal to antedate her claim for benefits, but to challenge the request to pay back a $2,000 advance payment of the EI ERB.

[35] I find that the Commission correctly determined that the Appellant hadn’t shown a continuing intention to ask for a reconsideration of its January 26, 2021, decision.

Reasonable chance of success and potential prejudice to the parties

[36] In its arguments, the Commission explains that the substantive issue—antedating the Appellant’s claim for benefits—had no reasonable chance of success.^{Note de bas de page 33} It says that the Appellant had until December 2, 2020, to claim the EI ERB but didn’t ask for an antedate until January 2021.^{Note de bas de page 34}

[37] At the hearing, the Appellant didn’t provide any evidence to support that her reconsideration request had a reasonable chance of success on the issue mentioned in the Commission’s January 26, 2021, decision.

[38] Instead, the Appellant’s explanations show that her reconsideration request was about the request to pay back the EI ERB advance payment.

[39] The Appellant also hasn’t made any arguments about the potential prejudice to the Commission or another party in accepting her reconsideration request.

The Commission’s discretion

[40] I am of the view that the Commission exercised its discretion judicially when it denied the Appellant an extension of the 30-day period to ask for a reconsideration, since it considered all the relevant circumstances when it refused her delay in making her request.

[41] I find that in making its decision, the Commission took into account all relevant factors and ignored any irrelevant factors.

[42] These factors refer to the following: the lack of a reasonable explanation from the Appellant for the delay in asking for a reconsideration and the fact that she didn’t have a continuing intention to ask for a reconsideration.

[43] I also find that the Appellant hasn’t shown that the Commission relied on irrelevant factors in refusing to extend the 30-day period to ask for a reconsideration.

[44] I find that the Commission exercised its discretion judicially when it denied the Appellant an extension of time to ask for a reconsideration.

Conclusion

[45] I find that the Commission was justified in refusing to extend the 30-day period to ask for a reconsideration concerning the request to antedate the Appellant’s claim for benefits.

[46] To be clear, that refusal doesn’t concern the Commission’s May 18, 2023, reconsideration decision dealing with the advance payment of the EI ERB to the Appellant and the resulting overpayment.

[47] This means that the appeal is dismissed.