Decision Content
Reasons and decision
[1] The General Division determined that the Appellant’s appeal of the Respondent’s reconsideration decision of July 7, 2014 had not been brought on time.
[2] The Appellant had filed a notice of appeal on May 8, 2015, but the General Division determined that it was incomplete, as he had failed to provide a telephone number, a facsimile number and/or an email address in the designated areas on the form. The Social Security Tribunal of Canada (Tribunal) sought to inform the Appellant that his appeal was incomplete, but the Appellant denied that he had ever received any communications from the Tribunal in that regard. By the time he learned that his appeal was considered incomplete, more than one year had elapsed from the time that the reconsideration decision had been communicated to him. The Appellant provided the missing information on October 13, 2015.
[3] The General Division determined that the Appellant had completed his notice of appeal on October 13, 2015 and that it had therefore been filed late.
[4] The Appellant appealed, alleging that the General Division failed to observe a principle of natural justice. I granted leave to appeal, noting that, apart from having neglected to provide a telephone number on the form, the Appellant had otherwise fully complied with the requirements in bringing an appeal. I granted leave to appeal on the basis that there was an arguable case that the General Division should have considered the appropriateness of applying paragraph 3(1)(b) of the Social Security Tribunal Regulations (Regulations) and should have thereby determined whether there were any “special circumstances” that would warrant varying the Regulations or dispensing with the need for the Appellant to comply with a provision of the Regulations. I also queried whether it would defeat the purpose of social–benefits-conferring legislation to so readily dismiss an appeal on the basis of a defect in form or a technical irregularity.
[5] The Respondent submitted that the Appellant’s contact information appeared in other documents that had been filed with his notice of appeal (at GD1-41, 58 and 74). The Respondent was of the position that the Appellant’s notice of appeal therefore met the requirements set out in paragraph 24(1)(g) of the Regulations that an appeal must contain an appellant’s full name, address, telephone number and, if applicable, facsimile number and email address.
[6] The Respondent was also of the position that the Appellant met at least three of the four criteria established in Canada (Minister of Human Resources Development) v. Gattellaro, 2005 FC 883. The Respondent did not allege that it would suffer any prejudice, and it accepted that the Appellant had a continuing intention to pursue his appeal and a reasonable explanation for the delay in filing his notice of appeal outside of the 90-day filing period under section 52 of the Department of Employment and Social Development Act (DESDA). The Respondent did not address the issue of whether the matter disclosed an arguable case, but it was of the view that referring the matter back to the General Division, pursuant to subsection 59(1) of the DESDA, would provide the Appellant with a fair opportunity to present his case.
[7] Given the parties’ position in this matter, I need not address the issues that I raised in my leave to appeal decision. It is in the interests of justice that the appeal be allowed and that the matter be returned to the General Division (Income Security) before a different member, for a hearing on the merits of the matter.