Employment Insurance (EI)

Decision

[1] I am refusing to give the Claimant an extension of time to apply to the Appeal Division is refused. The application will not proceed.

Overview

[2] M. G. is the Applicant. I will call him the Claimant because his application is about his claim for Employment Insurance benefits.

[3] The Claimant went on sick leave at the end of April 2021 and applied for sickness benefits in early May 2021. At the same time, he was enrolled in a school program that began in October 2020 and would complete in April 2022.

[4] The Respondent, the Canada Employment Insurance Commission (Commission) originally approved his sick leave, and it paid him the full 15 weeks of sickness benefits between May and August 2021. However, it reconsidered its decision in December 2021 on its own initiative. It said that he was not “otherwise available” while he was on sick leave, because he was going to school.

[5] The Claimant asked the Commission to reconsider. When the Commission looked at his file, it noted that it had made two decisions on December 24, 2021, and that it would reconsider both. The first decision it would reconsider was the decision that the Claimant should not have received sickness benefits. The other decision was that he was not entitled to regular benefits as of October 2021, because he was not available for work. (The Claimant had applied to renew his claim for regular benefits in October 2021.)

[6] The Claimant appealed the reconsideration decision to the General Division, which dismissed his appeal. He is now asking the Appeal Division for leave to appeal, but his appeal appears to be late.

[7] I am refusing the Claimant’s extension of time to appeal, which means that his appeal will not go forward. I will not consider whether to grant permission to appeal.

Issues

[8] The issues in this appeal are:

1. a) Was the application to the Appeal Division late?
2. b) Can I extend the time for filing the application?

Analysis

The application was late

[9] An appeal to the Appeal Division must be received within 30 days of the date that the Tribunal communicates the decision to an appellant, or it is late.^{Footnote 1}

[10] When the Claimant appealed to the General Division, he provided his email address, and he gave the General Division permission to communicate with him by email. The General Division issued its decision on the Claimant’s appeal on June 13, 2022. The Tribunal’s records show that it emailed the decision to the Claimant on June 15, 2022, together with a letter explaining his appeal rights and the deadline to appeal.

[11] When the Tribunal sends a document to a party electronically, its Rules state that it will consider the recipient to have received the document on the next business day.^{Footnote 2} If the rule applies to the Claimant, he must be deemed to have received the decision on June 16, 2022.

[12] The Tribunal must apply this rule unless the Claimant can show that it should not apply to him.^{Footnote 3}

[13] When the Claimant applied to the Appeal Division on March 14, 2024, he said that he only obtained a copy of the decision on February 22, 2024, after he called, and his Member of the House of Assembly requested it. He said that he was “only ever sent payment requests.”

[14] The Claimant called the Tribunal on February 22, 2024, to ask for “information of his file.” A Tribunal officer asked if he wanted another copy of the General Division decision and he agreed that this was what he needed. The officer confirmed that the email address in the Tribunal’s file was still active, and emailed a copy of the decision to him the same day.

[15] After the Claimant filed an application to the Appeal Division, I wrote to him on April 24, 2024. In my letter, I told him that the Tribunal’s records indicate he was emailed the decision on June 15, 2022. I asked him whether he had any explanation for why he would not have seen the decision that the Tribunal emailed to him.

[16] The Claimant responded on May 3, 2024. He said that he had been waiting for the decision but did not receive it. He said that he checked through his emails and did not find anything from the Tribunal. He suggested that it might have been directed to a junk mail folder.

[17] The Claimant’s explanation is insufficient. He has not shown that the rule should not apply to deem the decision communicated on June 16, 2022.

[18] When the Claimant gave the Tribunal permission to communicate with him by email, he gave it the same email address that he is still using. On February 22, 2024, he confirmed that the email address was active, and he was able to receive the copy of the General Division decision that the Tribunal sent to his email address the same day. The Claimant has not suggested that his email address was inoperative or that he could not access it at any time.

[19] The Claimant speculates that the original copy of the decision may have been misdirected to his junk folder, but he has not satisfied me that this is likely. If the Claimant “checked back through his emails” to confirm he did not receive the decision, then his records presumably go back to June 15, 2022. If his “in box” records go back to June 15, 2022, then he would have junk folder records for the same period—unless he had deleted his junk folder records.

[20] The Claimant said only that he assumed the email went to junk email and that he did not see it. He did not say that he even checked the junk email. If he did not check because he knew he had emptied or deleted the junk email folder, or if he could not access it for some other reason, I would have expected him to elaborate.

[21] Furthermore, the Tribunal sent a second copy of the decision in February 2024 to the same address that it sent the decision in June 2022. Unless the Claimant changed his email settings, his email program should have treated a second email from the same sender (the Tribunal) in the same way. I mean that his second email should have gone to the same junk email folder as the first one. Yet the Claimant received the February 22, 2024, email, and he did not say he found it in his junk folder.

[22] Finally, I listened to the audio recording of the May 31, 2022, General Division hearing. The member clearly stated that he would probably issue his decision in the week of June 13, 2022, and that the Tribunal would send it to the Claimant by email.^{Footnote 4} The Tribunal’s records show that the Tribunal sent the decision just when the member had said the Claimant should expect it.

[23] While the Claimant says that he had been waiting for the decision but did not receive it, he did not call the Tribunal to enquire about it for almost 21 months. It is implausible that he would wait this long for a decision that he was told to expect in two weeks, while continuing to receive payment requests from the Commission. His inaction in the face of these requests, suggests that he knew his appeal was dismissed.

[24] I do not accept that the Claimant first received a copy of the General Division decision on February 22, 2024. As the BC Court of Appeal once put it,

“[T]he real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.”^{Footnote 5}

[25] The Claimant may have received the decision and ignored it, or he may have forgotten that he received it, but the “preponderance of the probabilities” is that he received a copy of the decision within a short time of when the Tribunal’s records show that it was first emailed.

[26] I am applying Rule 22(3) to find that the Tribunal communicated the decision to the Claimant in writing on June 16, 2022. His application to the Appeal Division was received on February 22, 2024.

[27] This means his appeal is late.

I cannot extend the time for filing the application

[28] No matter what the Claimant’s reasons are for applying late, I do not have the power to grant an extension of time.

[29] The Claimant filed his application to the Appeal Division almost 21 months after the date the Tribunal communicated the decision to him. The lawsays that an application cannot proceed for any reason if it was made more than a year after the General Division decision was communicated.^{Footnote 6}

Conclusion

[30] I am not granting the Claimant an extension of time to apply to the Appeal Division. This means that the application will not proceed.