Employment Insurance (EI)

Decision

[1] The appeal will not go ahead. I am not giving the Appellant more time to appeal because, while his appeal is less than a year late, he does not have a reasonable explanation for why he is late.

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 August 31, 2021.^{Footnote 1}

[3] The Appellant disagreed with the reconsideration decision, so he appealed it to the Social Security Tribunal (Tribunal) on December 15, 2023.^{Footnote 2}

[4] There is a deadline for appealing to the Tribunal. An appellant who appeals late has to explain why they are late.^{Footnote 3} The Tribunal will give more time to appeal if the appellant has a reasonable explanation for why they are late.^{Footnote 4}

[5] However, in no case can an appeal be brought to the Tribunal more than one year after an appellant received the reconsideration decision.^{Footnote 5}

[6] The Appellant says he did not initially receive the reconsideration decision and it had to be resent to him. He says that he did not receive it until December 2022.^{Footnote 6} He says he filed an appeal in early 2023.^{Footnote 7}

[7] He says that his appeal is late because he wanted to deal with this issue at another appeal hearing he had in August 2023, but the Tribunal member told him he could not do so.^{Footnote 8}  

[8] He was also homeless from July to October 2023, which impacted his ability to file his appeal.^{Footnote 9}

Issues

[9] 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

[10] This matter was returned to me from the Appeal Division.

[11] The Appeal Division has said that I must do the following things:

• Make a finding on which date, or by which date, the reconsideration decision was communicated to the Appellant.
• If I find his appeal was filed less than one year late, but more than 30 days after the decision was communicated to him, determine if he has a reasonable explanation for his delay in being late.^{Footnote 10}

The Appellant’s appeal is late

[12] If an appellant disagrees with the Commission’s reconsideration decision, they can appeal to the Tribunal.^{Footnote 11} They have to appeal within 30 days after the Commission told them about the decision.^{Footnote 12}

[13] I have considered the evidence on the record and find I cannot make a decision on the exact date the Appellant received the reconsideration decision, but I can make a decision on a period of time in which the Appellant got the reconsideration decision.

[14] The Appellant told the Commission in May 2022 that he did not receive the August 31, 2021, reconsideration decision.^{Footnote 13}

[15] It was resent to him at the end of October 2022, but on November 30, 2022, the Commission confirmed with the Appellant that the letter had been returned to them, for reasons unknown.^{Footnote 14} The Commission said they would send it out by registered mail again and confirmed they had the correct address.^{Footnote 15}

[16] The Appellant said that he did not get the package that was resent on November 30, 2022, either,^{Footnote 16}  but says he did receive the reconsideration decision in December 2022.^{Footnote 17}

[17] I find, that on a balance of probabilities, the Appellant received the August 31, 2021, reconsideration decision in December 2022. More specifically, between December 15 and 22, 2022.

[18] I find, that when the Appellant is referencing a decision he received in December 2022, he is speaking about the August 31, 2021, decision because he says the decision he received in December 2022 dealt with work-sharing benefits and an overpayment of Canada Emergency Response Benefits,^{Footnote 18} and this is what the August 31, 2021, reconsideration decision is about.

[19] He also says the decision has a stamp on it of November 25, 2022, and the copy of the August 31, 2021, reconsideration decision he sent in with his notice of appeal has such a stamp on it.^{Footnote 19}

[20] I find the Appellant’s statements credible that he received the reconsideration decision sometime in December 2022, since it was remailed to him on or around November 30, 2022, and he agreed the mailing address the Commission had for him was correct.^{Footnote 20}

[21] I note there is also no evidence in the file that the documents resent on or after November 30, 2022, were returned to the Commission as undeliverable. The only evidence of mail being returned as undeliverable are the documents sent at the end of October 31, 2022, as the returned mail is stamped received on November 7, 2022.^{Footnote 21} This matches the Appellant’s statements he got the reconsideration decision in December 2022.

[22] I find that on a balance of probabilities the Commission would not have resent the documents the day of the phone conversation with the Appellant (November 30, 2022). I find, that at the earliest, the documents would have been resent the next day, December 1, 2022.

[23] There is no evidence on the record of exactly when the registered mail was delivered. I find that allowing for a period of 2 to 3 weeks for delivery is a reasonable period of time, which means the Appellant would have received the decision between December 15 and 22, 2022.

[24] I find the Appellant filed his appeal of the August 31, 2021, reconsideration decision on December 15, 2023.

[25] While the Appellant has argued he filed his appeal in early 2023,^{Footnote 22} I find, if he did file an appeal in early 2023, it was not related to the August 31, 2021, reconsideration decision.

[26] The received stamp on the Appellant’s notice of appeal is December 15, 2023.^{Footnote 23} This is also the date on the email he sent which contained his notice of appeal and supporting documents.^{Footnote 24} The Appellant also states in his email containing his notice of appeal that the subject is “overpayment #413331” and this number matches the Record ID of the August 31, 2021, reconsideration decision.^{Footnote 25} He also includes a copy of the August 31, 2021, reconsideration decision in his appeal documents.^{Footnote 26}

[27] Finally, while not binding on me in any way, I would note the Appeal Division in their decision said there was no error in finding the Appellant filed his notice of appeal on December 15, 2023.^{Footnote 27}

[28] Since the Appellant received the August 31, 2021, reconsideration decision sometime between December 15 and 22, 2022, and he filed his appeal on December 15, 2023,^{Footnote 28} which would be more than 30 days after he received it, this means his appeal is late, but less than one year late.

[29] However, even if I am wrong, and the Appellant received it at a later date, so between December 23 and December 31, 2022,^{Footnote 29} that would not make a material difference. Both the period of time I have selected, and any later date, would mean the Appellant’s appeal was filed less than one year late, so it would still be possible to grant him an extension to appeal.

[30] Neither would a later date in December 2022 outside of the delivery period I have decided on, significantly reduce the period of time for which he needs to have a reasonable explanation for his delay. 

The Appellant doesn’t have a reasonable explanation

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

[32] The Appellant says he filed a notice of appeal in June 2023 on this exact issue.^{Footnote 30}

[33] The Appellant says he had planned to resolve this issue at his other Tribunal hearing on August 31, 2023, but was told by the Tribunal member at that hearing that he would not be able to deal with this issue,^{Footnote 31} and this made his appeal late.

[34] He says the government knew he had this issue, but no one recognized it until the day of his hearing, and it should have been dealt with way ahead of time.^{Footnote 32}

[35] He also mentions being homeless between July and October 2023 and struggling to find a job. He says this made it very difficult to file an appeal until December 15, 2023.^{Footnote 33}

[36] Although these reasons may explain why the Appellant was late for part of the period of time, I find none of these reasons provide a reasonable explanation for the entire period of his delay.

[37] The reconsideration decision informs him of his right to appeal the reconsideration decision, that he must do so to the Tribunal, and that he has 30 days in which to do so. He received this in December 2022, yet did not file an appeal until December 15, 2023.

[38] Although I have already found the Appellant filed his appeal on this issue on December 15, 2023, hypothetically, even if I accept that he filed an appeal in June 2023, and meant for that appeal to be on both issues (this overpayment and his other issue) that would not provide a reasonable explanation for the delay.

[39] Filing an appeal in June 2023, even if he intended it to be on both issues, would not provide a reasonable explanation for his failure to file in January, February, March, April, or May 2023. A period of time in which he was in possession of the reconsideration decision, so was aware of the Commission’s decision and the deadline in which to file at the Tribunal, yet he did not do so.

[40] I also do not see anything else in the file that would provide a reasonable explanation for the Appellant’s delay in filing his notice of appeal.

Conclusion

[41] 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.

[42] This means the appeal won’t go ahead and no hearing will be scheduled on this issue.