Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

Overview

[2] This is an appeal of the General Division decision dated July 24, 2023. The General Division found that the issue before it was whether the Appellant, N. B. (Claimant), was late when he filed his appeal at the General Division.

[3] The Claimant was trying to appeal a reconsideration decision of the Canada Employment Insurance Commission (Commission) dated April 27, 2023. He included a copy of this reconsideration decision in his Notice of Appeal.^{Footnote 1} But he also included another reconsideration decision, one dated January 7, 2021.

[4] The General Division found that the Claimant was appealing the January 2021 reconsideration decision. So, it determined that when the Claimant filed his appeal on May 24, 2023, he was late by more than one year. As a result, the General Division concluded that “his application for EI benefits [could] not be antedated (backdated)”^{Footnote 2} because it was not brought on time.

[5] The Claimant argues that the General Division made a jurisdictional and factual error in that it decided the wrong issue altogether.

[6] The General Division identified the wrong issue, in part because it received an incomplete copy of the file materials from the Commission. This led the General Division to make jurisdictional, legal, and factual errors.

[7] Ordinarily, the appropriate remedy would be to return the matter to the General Division for a redetermination. But the General Division already decided the matter on October 10, 2023, in a duplicate appeal that the Claimant filed.

[8] The General Division cannot rehear the same thing because it already decided the matter. For this reason, I am dismissing the appeal.

Preliminary matters

[9] I recently held a case conference. I confirmed with the Claimant that he no longer wishes to have an in-person hearing and is agreeable to having this appeal proceed “in writing.”

Factual background

Reconsideration decision dated January 7, 2021

[10] The Commission issued a decision on January 7, 2021. The Claimant asked the Commission to reconsider this decision. The Commission issued a reconsideration decision on January 21, 2021.^{Footnote 3} The January 21, 2021 reconsideration decision dealt with the issue of an antedating (backdating) of an application.

Reconsideration decision dated April 27, 2023

[11] The Commission issued another initial decision on November 21, 2022.^{Footnote 4} The Claimant asked the Commission to reconsider this decision. The Commission issued a reconsideration decision on April 27, 2023.^{Footnote 5} The initial and reconsideration decision dealt with the issue of the Claimant’s earnings and the allocation of those earnings.

[12] The Commission found that the Claimant had misrepresented his earnings (though he subsequently voluntarily disclosed his earnings, so was not subject to any penalties). The April 27, 2023 decision also indicates that the Commission was reversing its decision on the issue of the allocation of the earnings.^{Footnote 6}

[13] The Claimant appealed this reconsideration decision twice, in two separate appeals to the General Division:

1. i. GE-23-1437 – first appeal filed with General Division on May 24, 2023. The General Division issued its decision on October 10, 2023. The Claimant filed an appeal of the General Division decision to the Appeal Division on October 23, 2023 under appeal file number AD-23-982.
2. ii. GE-23-1439 – second appeal filed with General Division, also on May 24, 2023. The General Division issued its decision on July 24, 2023. The Claimant filed an appeal of the General Division decision to the Appeal Division on July 31, 2023 under appeal file number AD-23-739. This is the matter before me.

[14] These are duplicate appeals at the General Division. The Claimant is seeking or has sought to appeal the same reconsideration decision.

Issues

[15] The issues in this appeal are:

1. a) Did the General Division make any jurisdictional, legal, or factual errors?
2. b) If so, how should the error be addressed?

Analysis

[16] The Appeal Division may intervene in General Division decisions if the General Division made any jurisdictional, procedural, legal, or certain types of factual errors.^{Footnote 7}

[17] For these types of factual errors, the General Division had to have based its decision on that error, and had to have made the error in a perverse or capricious manner, or without regard for the evidence before it.^{Footnote 8}

The General Division decided the wrong reconsideration decision

[18] The General Division decided the wrong reconsideration decision. It should have been apparent to the General Division that the Claimant was appealing the reconsideration decision of April 27, 2023 and not the reconsideration decision dated January 7, 2021.

[19] The Claimant included both reconsideration decisions with his Notice of Appeal. He also included other materials that related to the allocation of earnings and to a late application.

[20] The Commission provided a copy of its file materials, which consisted of materials relating to the reconsideration decision of January 21, 2021. The file (GD3) included the Claimant`s application dated January 6, 2021, a record of employment dated July 9, 2021, an antedate request dated January 7, 2021, the Claimant`s request for reconsideration on the antedate issue, and the Commission`s reconsideration decision of January 21, 2021, dealing with the antedate issue.

[21] Not surprisingly, the Commission’s file led the General Division to believe that the Claimant’s appeal related to the Commission’s reconsideration decision of January 21, 2021, on the antedate issue.

[22] However, the Claimant indicated in his Notice of Appeal which reconsideration decision he was appealing. The appeal form asked him when he received the reconsideration decision (that he was appealing). The Claimant clearly indicated that he received the reconsideration decision on April 27, 2023. Therefore, it should have alerted the General Division that the Claimant was appealing the reconsideration decision of April 27, 2023.

[23] The General Division misapprehended the evidence (the Notice of Appeal). This led it to decide the wrong issue.

[24] At the very least, since the Claimant had included both the 2021 and 2023 reconsideration decisions with his Notice of Appeal, the General Division should not have been reliant on the Commission’s file. It should have sought clarification from the Claimant. It should have asked the Claimant which reconsideration decision he was appealing to the General Division.

The General Division made a jurisdictional and legal error by mixing two different issues

[25] Although it is a moot concern since the General Division decided the wrong issue, I note that the General Division also made a legal error when it decided that it could not antedate the Claimant’s application because of section 52(2) of the Department of Employment and Social Development (DESD) Act.

[26] Section 52(2) of the DESD Act lets the General Division extend the time within which an appeal to the General Division may be brought. It does not relate to whether a claimant can backdate their application for Employment Insurance benefits.

[27] There were two succinct issues before the General Division:

1. i. Whether the Claimant’s appeal to the General Division had been filed on time. If not, could the General Division extend the time for filing the appeal.
2. ii. Whether the Claimant could antedate (backdate) his application for employment Insurance benefits from January 6, 2021, to August 27, 2020.

[28] The General Division mixed the two issues.

[29] As the General Division had decided that the Claimant was late when he filed his appeal with the General Division, it should have concluded that it could not extend the time to allow him to file the appeal. That should have ended the matter.

[30] At that point, the General Division did not have any jurisdiction to deal with the antedating issue.

[31] If the Claimant had not been late by more than one year, at most, the General Division could have extended the time for filing. It still would not have had any jurisdiction to antedate a late appeal to the General Division.

Addressing the error

[32] The General Division decided the wrong reconsideration decision.

[33] Usually, such an error would result in returning this matter to the General Division so that it can decide the matters (namely, the earnings and allocation issue) that it should have decided in the first place.

[34] However, the General Division has decided the matter already.

[35] As I have noted above, the Claimant filed duplicate appeals at the General Division. The General Division issued a decision on the appeal of the Commission’s April 27, 2023 reconsideration decision (in file GE-23-1437) on October 10, 2023. The Claimant appealed the General Division’s decision to the Appeal Division (AD-23-982). The Appeal Division did not grant leave (permission) for him to appeal.

[36] The Claimant still wants to pursue an appeal of the Commission’s April 27, 2023 reconsideration decision, under a duplicate appeal that he filed with the General Division. He claims that he was unaware that he filed two separate appeals.

[37] But, the issues are the same and the parties to both proceedings are the same in both appeals. And, the General Division’s decision on October 10, 2023, is final.

[38] As the matters have already been decided by the General Division, it cannot rehear the appeal, even by a different member.^{Footnote 9} I see no utility in returning this matter to the General Division. The most judicious outcome is to dismiss this matter altogether.

Conclusion

[39] The General Division (GE-23-1439) decided the wrong issue but it has already addressed the underlying issues in another appeal (GE-23-1437). For that reason, the appeal is dismissed.