Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

[2] The Respondent (Commission) exercised its discretion improperly when it denied the Appellant’s request to extend the time for reconsideration of the decision denying his claim for employment insurance (EI) benefits because he lost his job due to his own misconduct^{Footnote 1}.

[3] But the Appellant has not satisfied the legal test to extend the time for reconsideration, so the decision will not be reconsidered.

Overview

[4] The Appellant applied to renew his claim for regular EI benefits on December 7, 2021. On January 28, 2022, the Commission decided not to pay EI benefits to the Appellant on the renewal of his claim. It said he was disqualified from EI benefits because he was dismissed from his job due to his own misconduct (the disqualification/misconduct decision).

[5] On December 29, 2022, more than 30 days beyond the statutory deadline to request a reconsideration, the Appellant asked the Commission to reconsider the January 28, 2022 disqualification/misconduct decision. The Commission decided the Appellant did not satisfy the test to allow a longer period to request a reconsideration^{Footnote 2} and declined to reconsider the decision.

[6] The Appellant appealed the Commission’s denial of his request to extend the time for reconsideration to the Social Security Tribunal (Tribunal).

[7] The Appellant says he was never told about his right to ask for a reconsideration, but always felt that the decision on his claim was wrong. He didn’t learn about the reconsideration process until a colleague shared their EI experience with him in September or October 2022. Then, in December 2022, he learned of a favourable decision from the Tribunal allowing an appeal of a disqualification/misconduct decision in a fact scenario similar to his. This new decision from the Tribunal prompted him to file a request for reconsideration so he could appeal the disqualification/misconduct decision on his claim.

[8] The Commission says it exercised its discretion to deny the Appellant’s request to extend the 30-day reconsideration period properly. It says it took all relevant factors into account when it determined the Appellant did not provide a reasonable explanation for his delay of nearly 1 year or show a continuing intention to request a reconsideration.

[9] I must decide if the Commission exercised its discretion fairly^{Footnote 3}.

[10] I find that the Commission failed to exercise its discretion properly when it declined the Appellant’s late reconsideration request. It should have considered that no decision letter was sent to the Appellant advising him of the disqualification/misconduct decision and the 30-day timeframe to request a reconsideration of the decision.

[11] However, for the reasons set out below, I also find that the Appellant has not satisfied the legal test to extend the time for reconsidering the disqualification/misconduct decision. This means it will not be reconsidered.

Preliminary matter

[12] The issue of whether the Appellant should be disqualified from EI benefits because he lost his job due to misconduct^{Footnote 4} is not before me on this appeal.

[13] The Tribunal’s jurisdiction is limited to decisions that have been formally reconsidered^{Footnote 5}. Since the disqualification/misconduct decision has not been reconsidered, I have no jurisdiction to review that decision.

[14] I therefore make no findings with respect to the disqualification imposed on the Appellant’s renewal claim or whether he lost his job due to his own misconduct.

Issue

[15] I have to decide whether the Commission should accept the Appellant’s reconsideration request.

[16] To make this decision, I must consider these questions:

1. a) Is the Appellant’s reconsideration late? If so, how late?
2. b) Did the Commission make its decision fairly when it refused to accept his request for reconsideration?

[17] If I find the Commission didn’t make its decision fairly, then I can look at the legal test for extending the time to request a reconsideration and make my own decision about whether the Commission should accept the Appellant’s reconsideration request.

Analysis

[18] The law allows you to ask the Commission to reconsider a decision, but you must do so within 30 days of that decision being communicated to you^{Footnote 6}.

[19] If you wait more than 30 days to file your request for reconsideration, you are late.

[20] The Commission has discretion to allow more time to request a reconsideration^{Footnote 7}, but only if you satisfy the legal test for an extension beyond the 30-day period.  

[21] The Reconsideration Request Regulations set out the legal test that must be met for an extension of time.

[22] The first part of the legal test says the Commission may allow a longer period to ask for a reconsideration only if it is satisfied that:

1. a) you have a reasonable explanation for being late; and
2. b) you have shown a continuing intention to request reconsideration, even though you were late^{Footnote 8}.

[23] The second part of the legal test says that if your request for reconsideration is submitted more than 365 days after the original decision was communicated to you, the Commission must also be satisfied that:

1. c) your request for reconsideration has a reasonable chance of success; and
2. d) there would be no prejudice to the Commission or any party by accepting the late request for reconsideration^{Footnote 9}.

[24] The Commission can only accept a late reconsideration request and review the decision if you meet all the conditions in the applicable legal test.

[25] The Commission’s decision to accept or refuse a late request for reconsideration is a discretionary one. As such, it cannot be changed unless the Commission failed to exercise its discretion fairly.

[26] This means the Appellant must prove that the Commission’s decision to refuse his late reconsideration request was made in bad faith, or based on irrelevant considerations, or failed to take into account all relevant considerations, or was made in a discriminatory manner^{Footnote 10}.

[27] If the Commission didn’t make its decision fairly, I can step into the Commission’s role and make the decision to accept or refuse the late reconsideration request. 

Issue 1: Was the Appellant’s reconsideration request late?

[28] Yes, it was.

a) When was the decision communicated to him?

[29] The law says you have 30 days after the Commission communicates its decision to ask for a reconsideration of that decision.

[30] To communicate a decision, the Commission must show it told you about the “substance” and “effect” of its decision^{Footnote 11}. However, the Commission has no obligation to inform you of your appeal rights in order to meet its obligation to communicate the substance and effect of its decision to you^{Footnote 12}.

[31] The Commission did not issue a decision letter to the Appellant.

[32] Instead, the Appellant was verbally notified of the disqualification/misconduct decision – and his reconsideration rights – on January 28, 2022^{Footnote 13}.

[33] The Commission also responded to an inquiry from the Appellant’s Member of Parliament (MP) and verbally notified the MP’s assistant of the decision – and the Appellant’s reconsideration rights – on January 28, 2022^{Footnote 14}.

[34] At the hearing, the Appellant testified that:

• By January 2022, he knew the Commission had decided he would not be paid EI benefits (on the application he’d filed in December 2021) because he lost his job due to misconduct.
• However, he did not get a decision letter from the Commission, and he was not advised of his right to ask for a reconsideration or told there was a timeframe for doing so^{Footnote 15}. 
• He wasn’t aware he could ask for reconsideration until September or October 2022, when a colleague shared his experience and described the reconsideration process to him. 
• He didn’t take any steps to request a reconsideration until December 2022, when he learned the Tribunal had made a favourable decision on the issue of misconduct in a fact scenario similar to his. That was when he decided to ask for a reconsideration.
• This new, favourable Tribunal decision is what prompted him to submit his Request for Reconsideration form.

[35] I find the disqualification/misconduct decision was communicated to the Appellant on January 28, 2022.

[36] By January 28, 2022, the Appellant was aware of both the substance of the Commission’s decision (that his dismissal from his employment was due to his own misconduct) and the effect of the decision (that he would not be paid EI benefits on the application he filed in December 2021). This was sufficient to communicate the disqualification/misconduct decision to him.

[37] In coming to this conclusion, I give the most significant weight to the Commission’s Action Item at GD3-15. The Action Item shows that as of January 24, 2022, the Commission was investigating the Appellant’s dismissal from his employment. It also shows the Commission’s determination that the dismissal was due to Appellant’s own misconduct. And it shows that, as of January 28, 2022, both the Appellant and his MP’s office had been told of the disqualification imposed on his claim and the process for appealing within the next 30 days. 

[38] The Action Item is a detailed record of the steps taken by the Commission and was created contemporaneously with the investigation, the decision, and the communications with both the Appellant and the MP’s office. I consider the completion of the Action Item for the MP’s inquiry on January 28, 2022 to be reliable evidence that the Appellant was told about the substance and effect of the Commission’s decision, and given his reconsideration rights (although perhaps not in a way that registered with him^{Footnote 16}).

[39] The Appellant didn’t file his Request for Reconsideration until December 29, 2022, so it was late. 

b) How late was his reconsideration request?

[40] It was 11 months late.

[41] The decision was communicated to the Appellant on January 28, 2022 and his Request for Reconsideration was received by the Commission on December 29, 2022.

[42] Because his reconsideration request was less than a year late, the Appellant only needs to satisfy the first part of the legal test to extend the time to request a reconsideration.

[43] This means the Appellant needs to show 2 things:

1. c) That he had a reasonable explanation for being late with his Request for Reconsideration, and
2. d) That he had a continuing intention to ask for a reconsideration between January 28, 2022 and December 29, 2022.

Issue 2: Did the Commission exercise its discretion fairly when it declined the Appellant’s reconsideration request?

[44] No, it did not.

[45] I have reviewed the Record of Decision for the Commission’s denial of the Appellant’s late reconsideration request^{Footnote 17}. The Commission emphasized the fact that Appellant was aware of the negative decision on his claim in January 2022,  and discounted his statements that he was not informed of his right to request a reconsideration – by either the Commission or his MP’s office.

[46] This is troubling because the question of how and when the Appellant became aware of his right to request a reconsider is relevant to both factors of the legal test he must satisfy to have the 30-day period for requesting a reconsideration extended.

[47] The Appellant testified that:

• In January 2022, he knew the Commission had decided not to pay him EI benefits and that the reason was because the Commission said he lost his job due to his own misconduct.
• He disagreed with the finding of misconduct and didn’t think the decision was right.
• But he was never told he had a right to ask for a reconsideration of the decision.
• This was his first time going through this process.
• The information about having the right to ask for a reconsideration – and the 30-day deadline for doing so – was important information. If he wasn’t given this information, how could he have acted on time?
• He didn’t learn about the reconsideration process until a colleague told him about it in September or October 2022.
• That was when he started looking at the EI website to learn more about the reconsideration process.
• Then, in December 2022, he found out that the Tribunal had made a decision that overturned a finding of misconduct and was favourable to an Appellant in very similar circumstances to his. This spurred him to file a Request for Reconsideration.

[48] For the reasons set out in Issue 1 above, I agree with the Commission that the disqualification/misconduct decision was communicated to the Appellant on January 28, 2022.

[49] But I accept the Appellant’s testimony that he did not receive written notice of his reconsideration rights and was not told about his reconsideration rights in a meaningful way^{Footnote 18}until September or October 2022. The lack of decision letter and the fact he was unaware of his reconsideration rights in a way that registered with him for months after the decision was communicated to him are important and relevant factors in determining if the Appellant had a reasonable explanation for his delay and a continuing intention to request a reconsideration.

[50] The Commission should have taken these factors into consideration in its analysis of whether the Appellant satisfied the test to extend the time for reconsideration of the disqualification/misconduct decision. It did not do so.

[51] Because the Commission overlooked these relevant factors when it made its decision, I find that it didn’t use its discretion fairly. This means I can step into the Commission’s role and apply the legal test to make my own decision about the Appellant’s late reconsideration request.

Issue 3: Has the Appellant satisfied the legal test to extend the time to request a reconsideration?

[52] No, he has not.

[53] The Appellant has not provided a reasonable explanation for his delay or proven he had a continuing intention to request a reconsideration.

a) Reasonable Explanation for the Delay

[54] The Appellant has not provided a reasonable explanation for his delay.

[55] Given my findings under Issues 1 and 2 above, the Appellant must provide a reasonable explanation for delaying from January 28, 2022 (the date when the decision was communicated to him) to December 29, 2022 (the date he filed his Request for Reconsideration).

[56] The Appellant testified about the reasons for his delay as follows:

• In January 2022, when he learned the Commission was not going to pay him EI benefits because it decided he lost his job due to his own misconduct, he wasn’t told he could ask the Commission to reconsider this decision.
• He always believed the decision was wrong because he complied with his employer’s Covid-19 vaccination policy when he asked for a religious exemption. There is no misconduct in asking to be exempt from vaccination.
• But he wasn’t given a decision letter explaining what to do if he disagreed with the decision denying his EI benefits.
• Between January 28, 2022 and September or October 2022, he didn’t take any steps to contact Service Canada or investigate how the decision might be appealed or overturned.
• This is because he was dealing with a lot of stress, including:
  • the stress of the pandemic and “all of the new rules” about Covid,
  • the stress of losing his employment and having his request for a religious exemption “ignored” by his employer,
  • the stress of family members losing their jobs as well due to Covid,
  • the stress of not getting EI benefits after paying into the program,
  • the stress of having to look for a new job and, eventually, the stress of starting a new job.
• It was also his “first time going through this process” and he wasn’t familiar with the rules of EI. He was “discouraged” and “not thinking clearly”. He found it all “quite taxing”.
• He didn’t become aware of the reconsideration process until September or October 20022, when a colleague shared his experience with him and told him he could ask the Commission for a reconsideration.
• After the discussion with his colleague, he started looking into the reconsideration process by reading information on the EI website and trying to figure out the steps he had to take.
• He was still “highly stressed”, and it took time for him to understand and interpret the information on the website and “learn how to do an appeal”.
• In December 2022, he became aware of a favorable decision from the Tribunal that he believed would help him overturn the finding of misconduct in his case^{Footnote 19}.
• Learning of this favorable decision is the thing that spurred him to file his Request for Reconsideration so he could appeal the decision on his own claim for benefits.

[57] I acknowledge that the Appellant was not fully aware of his right to request a reconsideration until September or October 2022. But I don’t think this is a reasonable explanation for his delay from January 28, 2022 until that time. If the Appellant thought the January 28, 2022 disqualification/misconduct decision was wrong, it would have been reasonable for him to make some enquiries and find out if there was a way to overturn the decision - either by contacting Service Canada or going to the EI website. I can see he is able to make enquiries and reach out for assistance by how he involved his MP’s office to follow-up with the Commission about making the decision^{Footnote 20}. But for 9 or 10 months after the decision was made – from January 28, 2022 to September or October 2022 – he didn’t take any steps to enquire about the possibility of overturning the decision, even though he and his family members were dealing with the loss of their jobs and experiencing financial stress. This was not reasonable.

[58] I also acknowledge that the pandemic was a tumultuous time, and that the Appellant was highly stressed about his job loss and searching for new employment. But I don’t think this is a reasonable explanation for his delay either. All claimants seeking regular EI benefits are separated from their employment and must be actively seeking other employment in order to receive EI benefits^{Footnote 21}. These circumstances can admittedly be stressful, but they do not relieve claimants from complying with the timelines and responsibilities set out in the EI Act and its related Regulations.

[59] Finally, even taking into account that the Appellant was not fully aware of his right to request a reconsideration until September or October 2022, he still does not have a reasonable explanation for delaying from September or October 2022 until December 29, 2022. As of September or October 2022, he had the information from his colleague and was searching the Service Canada website to inform himself about the reconsideration process. It would have been reasonable for him to have known he was already late and needed to act quickly to get his Request for Reconsideration form filed. Yet he did not do so. And I don’t see anything that prevented him from asking for a reconsideration sooner^{Footnote 22}.

[60] For all of these reasons, I find the Appellant has not provided a reasonable explanation for his delay in filing his Request for Reconsideration.

[61] I am further supported in my finding by the analysis of the Tribunal’s Appeal Division in a similar recent case^{Footnote 23} (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 the same favourable decision that the Appellant in this appeal did^{Footnote 24}, and explained that it came out after the 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 25}

b) Continuing Intention to Request a Reconsideration

[62] The Appellant has not shown a continuing intention to ask for a reconsideration during his delay.

[63] For the reasons set out in paragraph 57 above, I find there is no evidence of a continuing intention to request a reconsideration between January 28, 2022 and September or October 2022.

[64] By September or October 2022, the Appellant had been told by his colleague that he could ask for a reconsideration. But he still didn’t file his Request for Reconsideration until December 29, 2022.

[65] He testified that:

• He has a colleague who “went through something similar” when they lost their employment.
• In September or October 2022, this colleague told him that he could appeal the disqualification/misconduct decision and explained what he needed to do.
• Prior to that, he hadn’t taken any steps to look into how to overturn the negative decision on his claim.
• And even after his colleague told him about the reconsideration process, he still didn’t take any steps to request a reconsideration because he was “waiting on the decision” about whether they could get EI benefits in their circumstances^{Footnote 26}.
• He was also “dealing with a new employment” at that time and all of the other stresses of the pandemic, including the job losses of his family members and “everything that was going on in the world” at the time.
• He also didn’t rush to “do a reconsideration” because so many people had lost their jobs during the pandemic and EI was “so backlogged” that he knew he would probably be waiting a long time for an answer. People in the system weren’t receiving calls back for “months”. He felt his attempt at reconsideration would be “futile” because of the “sheer volume” of the backlog at EI.
• He knew there was a timeframe for requesting a reconsideration, but he thought the timeframe was relative to the backlog and the fact that everything was taking longer than it would in non-pandemic times.
• He “went back and forth” in his mind about whether it was better to seek new employment or appeal the disqualification/misconduct decision.
• But when he found out about the Tribunal’s decision “in file number GE-22-1889”^{Footnote 27}, he decided to “file for reconsideration”.
• The Tribunal’s decision in GE-22-1889 dealt with similar facts to his, namely being denied EI benefits under a vaccine mandate – and found there was no misconduct that “justified termination”.
• He believed the Tribunal’s decision in GE-22-1889 would be helpful to him.
• This decision spurred him into action and he filed his Request for Reconsideration.
• “The main thing that spear-headed” him to file his reconsideration was “the understanding that the Tribunal was making favourable decisions similar to my scenario.”

[66] The Appellant’s testimony shows he didn’t form the intention to ask the Commission for a reconsideration until after December 14, 2022, which was the date the decision in GE-22-1889 was issued by the Tribunal Member.

[67] This is consistent with what he told the Commission. In its Record of Decision, the Commission noted:

“The client did not complete the request for reconsideration in a timely manner because there was no court decision about the circumstance surrounding their termination. It was not until the December 2022 decision the client felt compelled to have their claim reviewed based on the new developments.” (GD3-21)

“Reason for delay: The client did not file a request for reconsideration because they waited until a court decision in December 2022 because the outcome of the decision could potentially change the original decision made.” (GD3-21).

[68] This is not sufficient to show he had a continuing intention to request a reconsideration during the period of his delay – either the 11 month total delay^{Footnote 28}, or the delay between the time his colleague told him about the reconsideration process in September or October 2022 and when he filed his Request for Reconsideration on December 29, 2022.

[69] I agree with the Commission that taking steps after becoming aware of a case that might potentially assist in changing the original negative decision does not show a continuing intention to request a reconsideration.

[70] For all of these reasons, I find the Appellant has not proven he had a continuing intention to request a reconsideration throughout the period of his delay. 

c) Conclusion on the legal test to extend the time for requesting reconsideration

[71] The Appellant has not satisfied the legal test for an extension of time to request a reconsideration of the January 28, 2022 disqualification/misconduct decision.

[72] Having failed to satisfy the required factors, he is not entitled to an extension of time to request a reconsideration of that decision.

[73] This means the decision will not be reconsidered.

Conclusion

[74] The appeal is dismissed.

[75] The Appellant’s Request for Reconsideration was late, but the Commission did not exercise its discretion properly when it refused to accept it.

[76] However, the Appellant has not met the conditions necessary for the Commission to accept his late reconsideration request. This means an extension of time cannot be granted in his case.

[77] The January 28, 2022 disqualification/misconduct decision will not be reconsidered.