Employment Insurance (EI)

Decision

[1] Leave (permission) to appeal is refused. The appeal won’t go forward.

Overview

[2] M. C. is the Claimant.

[3] This Tribunal’s General Division decided her appeal to the General Division was late. And because she hadn’t given a reasonable explanation why, it could not extend the time for her to bring her appeal.

[4] The Claimant has now applied for permission to appeal the General Division decision.

[5] I can give her permission if she shows her appeal has a reasonable chance of success. Unfortunately, she hasn’t.

Issue

[6] I have to decide whether the Claimant’s appeal has a reasonable chance of success.

I am not giving the Claimant permission to appeal

[7] I read the Claimant’s application to appeal.^{Footnote 1} I read the General Division decision. And I reviewed the documents in the General Division file.^{Footnote 2} Then I made my decision.

[8] For the reasons that follow, I am not giving the Claimant permission to appeal.

The permission to appeal test

[9] I can give permission if the Claimant’s appeal has a reasonable chance of success.^{Footnote 3} This means the Claimant has to show there is an arguable ground of appeal upon which her appeal might succeed.^{Footnote 4}

[10] The law says I can consider the following grounds of appeal, which I call errors. The General Division^{Footnote 5}

• used an unfair process or was biased (a procedural fairness error)
• didn’t use its decision-making authority properly (a jurisdictional error)
• made a legal error
• made an important factual error

The Claimant hasn’t shown an arguable case the General Division made an error—her appeal doesn’t have a reasonable chance of success

[11] I will start by considering the Claimant’s reasons for appeal.^{Footnote 6} Her reasons set out the key issues and central arguments I have to consider.^{Footnote 7}

Procedural fairness

[12] The Claimant checked the box that says the General Division didn’t follow procedural fairness.^{Footnote 8} She sent a separate page of arguments to support that position.^{Footnote 9}

[13] But most of her argument is about the Commission’s decision not to reconsider its decision, not the General Division decision she wants to appeal. This includes the two Tribunal decisions she refers to.^{Footnote 10} Neither decision is about the General Division’s power to extend the time for a person to bring an appeal.

[14] The Claimant makes one argument about fairness.

I am very inexperienced with the protocols and processes to be followed with EI and I feel that The Tribunal member, based on my recollection of the events from the phone call with the agent and stress from the situation, should allow my appeal.^{Footnote 11}

[15] The Claimant’s inexperience doesn’t show the General Division procedure was unfair to her.

[16] The Tribunal’s appeal forms and website have been designed for people who are representing themselves. As much as possible, the Tribunal uses plain language.

[17] The Claimant knew the case she had to meet. The General Division appeal form explains what counts as a late appeal and the legal test to get an extension of time (see “9 – Late appeal”). She knew her appeal was late. She admitted that.

[18] Part 9 of the form also gives instructions: “Explain why your appeal is late. Tell us why your explanation is reasonable. You may attach supporting documents.”^{Footnote 12} The Claimant filled out Part 9. She explained why her appeal was late and why her explanation was reasonable.

[19] The General Division didn’t have to hold a hearing. The General Division had the power to decide her request to extend time based on her appeal form, and by reviewing the relevant documents.^{Footnote 13} And that’s what it did.

[20] This shows me the General Division gave her a full and fair opportunity to present her case.

[21] So she hasn’t shown an arguable case the General Division made a procedural fairness error.

No arguable case the General Division made another type of error

[22] Because the Claimant is representing herself, I looked beyond her arguments.^{Footnote 14} I considered whether the General Division made another type of error upon which her appeal might succeed.

[23] There’s no arguable case the General Division ignored or misunderstood the relevant evidence. The General Division considered the Claimant’s evidence and arguments (her explanation) why her appeal was late (paragraphs 9 to 12, 17, 19). It also considered the evidence in the Commission’s reconsideration file (paragraph 13). Then it weighed the evidence and made its findings. The relevant evidence supports the General Division decision. So there isn’t an arguable case the General Division made an important factual error.

[24] There isn’t an arguable case the General Division made a legal error. It made the factual finding it had to make when it decided the Claimant’s appeal was late (paragraphs 13 and 14). Then it set out and used the correct legal test to decide whether to extend the time for her to bring her appeal (paragraphs 6, 18, 20, and 21). The General Division’s reasons are more than adequate. It grappled with the right questions and considered the parties’ evidence and the Claimant’s arguments.^{Footnote 15} And its reasons “add up.”

[25] Finally, I understand the Claimant disagrees with General Division decision not to extend the time for her to appeal. She thinks that’s not fair to her, given her circumstances. But I can’t consider fairness as a stand-alone principle when I decide whether to give her permission to appeal. And simply disagreeing with the General Division’s findings, or the outcome, doesn’t show an arguable case the General Division made an error.^{Footnote 16}

Conclusion

[26] The Claimant hasn’t shown an arguable ground upon which her appeal might succeed. And I didn’t find one.

[27] This means her appeal doesn’t have a reasonable chance of success. So I can’t give her permission to appeal the General Division decision.