CUB 33488
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
19970516
Docket:
A-432-96
Umpire's Decision:
CUB 33488
CORAM :
STRAYER J.A.
MacGUIGAN J.A.
HENRY D.J.
IN THE MATTER OF the Unemployment Insurance Act, 1971
AND IN THE MATTER OF section 79 of the Unemployment Insurance Act, 1971, to grant an appeal 30 days after the day on which a decision of the Commission is communicated to the claimant, namely Albert Cardamone, or within such further time as the Commission may in any particular case for special reasons allow, appeal to the Board of Referees
AND IN THE MATTER OF an appeal to an Umpire by the claimant Albert Cardamone, from a decision of the Board of Referees rendered February 14, 1995.
BETWEEN :
ALBERT CARDAMONE,
appellant,
-and-
THE ATTORNEY GENERAL OF CANADA,
respondent.
Heard at Toronto, Ontario on Friday, May 16, 1997.
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario
on May 16, 1997)
STRAYER J.A.:
We are all of the view that this application should be allowed.
It appears to us that the Board of Referees erred in law. It considered the test for an extension of time to appeal to be whether or not there was "good cause" for the delay. Section 79 of the Unemployment Insurance Act instead allows an extension by the Commission of the time for an appeal to the Board where the Commission "for special reasons" may allow, a test which is not necessarily limited to whether there was good cause for the delay.
We would also add that the Commission in its written submissions to both the Board and the Umpire made erroneous statements of fact that the claimant had acknowledged receiving notices from the Commission on October 3 and 28 and November 11, 1994. We can see no basis in the file for such statements. The only recorded admission was that he had received one letter on some unspecified date. These misstatements were adopted in part by the Board, a reviewable error of fact in that these conclusions were not based on the actual evidence.
We will therefore set aside the decision of the learned Umpire, and refer it back to an Umpire for reference back to the Commission for reconsideration. While we recognize that the Commission has a discretion in the matter, we would draw its attention to the inaccuracies in its factual submissions to the Board and Umpire and to factors such as the seriousness of a determination that false or misleading statements have been made, the amount of the penalty imposed, and the fact that there was a delay of only about one month after the time limit for the appeal. In our view these are all "special reasons" to be taken into account although it is for the Commission to weigh these and possibly other considerations in exercising its discretion.
In so finding we wish to make it clear that we do not accept the submission of the applicant that he could not be considered to have received the notice of the Commission's decision until he found it in his house, although it had admittedly been there for some time.
Original signed by B.L. Strayer
J.A.