Employment Insurance (EI)

Decision

[1] The appeal won’t go ahead. I am not giving the Appellant more time to appeal. In other words, I am not accepting the late appeal. This decision explains why.

Overview

[2] The Canada Employment Insurance Commission (Commission) made a decision in the Appellant’s case. The Appellant asked the Commission to reconsider. The Commission reconsidered and sent the Appellant a letter about its reconsideration decision on October 12, 2022.

[3] The Appellant disagreed with the reconsideration decision, so he appealed it to the Social Security Tribunal (Tribunal) on June 12, 2023

[4] There is a deadline for appealing to the Tribunal. An appellant who appeals late has to explain why they are late.^{Footnote 1} The Tribunal will give more time to appeal if the appellant has a reasonable explanation for why they are late.^{Footnote 2}

[5] The Appellant says he knew of other people in the same situation whose claims for employment insurance (EI) benefits were rejected, so he lost faith and missed the 30-day deadline to appeal. But then on June 12, 2023, he saw a posting on Twitter by a claimant who won her appeal before the Tribunal. This gave him hope again and he decided to appeal.

Issue

[6] I have to decide the following two issues:

1. a) Is the Appellant’s appeal late?
2. b) If so, does he have a reasonable explanation for why his appeal is late?

Analysis

[7] If an appellant disagrees with the Commission’s reconsideration decision, they can appeal to the Tribunal.^{Footnote 3} They have to appeal within 30 days after the Commission told them about the decision.^{Footnote 4}

The Appellant’s appeal is late

[8] The Appellant doesn’t dispute that his appeal is late.^{Footnote 5}

[9] I accept that the Commission told the Appellant about its reconsideration decision more than 30 days before he appealed to the Tribunal. There is a Supplementary Record of Claim documenting that the Commission verbally communicated the decision to the Appellant on October 12, 2022 (at GD3-66). There is also a reconsideration decision letter that was issued to the Appellant that same day (at GD3-67). The Appellant says he received the reconsideration decision letter on October 19, 2022.^{Footnote 6}

[10] The Appellant included a copy of the October 12, 2022 reconsideration decision letter with the Notice of Appeal he filed with the Tribunal on June 12, 2023, more than 30 days after the decision was communicated to him.

[11] The evidence shows the Appellant’s appeal is late.

The Appellant doesn’t have a reasonable explanation

[12] I find that the Appellant didn’t give a reasonable explanation for why his appeal is late.

[13] The Appellant acknowledges he was fully aware of his right to appeal and that he had 30 days to do so. But he took no steps to appeal because he didn’t think his appeal had much chance of success. Then 8 months later, he learns that the Tribunal rendered a favourable decision in an appeal with similar facts to his. Only then is he motivated to appeal.

[14] This is not a reasonable explanation. If the Appellant thought the reconsideration decision was wrong, it would have been reasonable for him to take steps to appeal it right away – regardless of what he had heard about Tribunal decisions in other cases. But he did nothing. A reasonable person, knowing there was a 30-day deadline for appealing, would not have waited over 8 months to protect their right to dispute the reconsideration decision.

[15] I am also persuaded by the analysis and findings of the Tribunal’s Appeal Division in a similar recent case^{Footnote 7} (the SS case). In the SS case, the claimant was late filing his appeal and requested an extension of time. To grant an extension of time to appeal, the Tribunal’s Appeal Division had to decide whether the claimant had a reasonable explanation for why their application for leave to appeal was late. The claimant in the SS case referred to a different favourable decision to the one the Appellant in this appeal did, but similarly explained that it came out after the 30-day deadline to submit his appeal had passed. The Appeal Division in the SS case ruled:

“The fact that a decision that appears to be favorable to the Claimant was rendered after his appeal deadline is not a reasonable explanation for why he is late.”^{Footnote 8}

Conclusion

[16] The Appellant didn’t give a reasonable explanation for why his appeal is late. Because of this, I can’t give the Appellant more time to appeal.

[17] This means the appeal won’t go ahead.