IN THE MATTER OF THE UNEMPLOYMENT INSURANCE ACT
- and -
IN THE MATTER OF a claim for benefit by
ANTHONY AMOR
- and -
IN THE MATTER OF the claimant's appeal to an
Umpire from a decision of the Board of Referees given
at Vancouver, Brithish Columbia, on May 7, 1991.
DECISION
J. C. McNAIR, Q.C., UMPIRE:
The only issue in this appeal is whether the Board of Referees was correct in upholding the Commissions' decision to refuse an extension of the 30-day appeal period on the ground that the claimant had failed to show any "special circumstances" warranting such an extension. The claimant relies on all the grounds of appeal specified in sections 80(a), 80(b) and 80(c) of the Unemployment Insurance Act, R.S.C. 1985 c. U-1, namely, breach of a principle of natural justice and excess or refusal of jurisdiction, error of law and erroneous finding of fact.
The claimant filed an application for benefits on December 22, 1989, stating that he was not attaching his record of employment with B.C. Ferry Corporation. On January 4, 1990 the Commission sent him a request for the missing record of employment. According to the Commission, no reply was received. Consequently, the Commission wrote him on January 19, 1990 to advise that his entitlement to benefits could not be established until he provided his record of employment. Apparently, there was some contact with the claimant on June 8, 1990 as a result of which an insurance agent, Mr. Whelan, telephone the claimant on June 15, 1990 regarding the status of his claim. He advised the claimant that there was no record of employment on file. The claimant reiterated his explanation that he had mailed it in. Nevertheless, the claimant forwarded a copy of his record of employment on July 11, 1990. The Commission wrote the claimant on July 20, 1990, explaining why they were not going to reconsider his initial application, and stating that he had 30 days to appeal this decision. The next contact occurred on October 29, 1990 when the claimant was again interviewed by the insurance agent, Mr. Whelan, regarding the status of his claim. The agent advised the claimant that he could file a new claim or, alternatively, appeal the Commission's decision and explain the reasons for the delay in filing his appeal. He also provided the claimant with copies of the Commission's letters of January 19, and July 20, 1990 and other relevant file material.
The Commission received the claimant's formal notice of appeal on November 19, 1990. The Commission notified the claimant by letter dated December 17, 1990 that it was not accepting his late appeal because of his failure to show special circumstances warranting an extension of the appeal period, and advised him of his right to appeal that decision. This letter bore the following postscript:
P.S. This replaces the letter sent to you dated July 20, 1990.
The claimant appealed to the Board of Referees.
The Board of Referees rendered the following decision:
Issue:
Delayed Appeal.
Section 79(1) of the Unemployment Insurance Act.
The claimant attended. The appeal hearing was taped. The Commission was represented by Mr. Glen Mikitka. New Exhibits 19.1 to 19.4 were read and included in the submission.
Mr. Amor stated his reasons for delay in appealing are that he never received the original notice sent January 19, 1990 and he had submitted his Record of Employment (Exhibit #13). Written evidence shows the claimant took 174 days to submit his record of Employment. A further 100 days before making any inquiry after he was sent a letter dated July 20, 1990. His letter of appeal was received 294 days after the decision was sent. No letters sent to Mr. Amor by the Commission were returned back as undeliverable.
Mr. Amor requested the Board to refer to CUB 4846 to determine if the Commission's requirement was to use ordinary mail or registered mail to communicate documents. The Board of Referees is of the opinion that the type of mail used by the Commission does not preclude registered mail and submits that it is an administration decision on what type of mail it uses.
Mr. Amor made issue that there is nothing in Sections 6 and 39 of the Act to suggest a time limit on a claimant's attempt to qualify for benefits. The Board draws his attention to "Section 39(3) of the Act" which states:
"On receiving an initial claim for benefit, the Commission shall decide whether or not the claimant is qualified to receive benefit and notify him of its decision. 1970-71-72, c. 48, s. 53; 1974-75-76, c. 80, s. 19." .
The Board is aware that the claimant has considerable experience with Unemployment Insurance claims and cannot accept the long period of delay to make his initial acknowledged inquiry on June 8, 1990.
The Commission alleged that they did not believe he did not receive in the mail their letters and conversely, the claimant suggested they were not sent.
In view of all of the evidence, the Board finds the claimant did not fulfil his obligation to make a proper enquiry on the status of his December 22, 1989 claim for near 6 months period. We find the Commission made the correct decision in denying Mr. Amor's right to appeal in accordance with Section 79 of the Unemployment Insurance Act.
The appeal is dismissed.
The claimant's explanation for the delayed filing of his appeal is based primarily on the assertion that he never received the letter of January 19, 1990 regarding his non-entitlement because of the lack of any record of employment, which he maintains he submitted, nor the further letter of July 20, 1990. He contends there is no proof that these documents were ever received by him in the absence of any certificate as provided by section 102(2) of the Act or from the fact of having been sent by registered mail. He claims that he first received notice of them during the course of his interview with Mr. Whelan, when the latter provided him with copies of these letters and other relevant file material. Consequently, he submits that his appeal is timely because of having been filed within 30 days of that interview. The other principal argument advanced by the claimant for extending the appeal period is his contention that the Commission's letter of January 19, 1990 did not constitute an appealable decision respecting disentitlement or disqualification, but rather amounted only to a letter of advice regarding the necessity of fulfilling certain requirements with respect to an ongoing claim. The claimant also submitted that the postscript to the Commission's letter of December 17 rescinding its earlier letter of July 20, 1990 and denying the claimant's request for reconsideration of his claim had the effect of further extending the appeal period.
Counsel for the Commission submits that the procedure followed by the Commission in exercising its discretion not to extend the 30-day period for appeal took into account all relevant considerations and that such discretion was exercised judicially in accordance with sound principles. She placed particular reliance on the Federal Court of Appeal decisions in Chartier et al v. C.E.I.C. [A-42-90, September 13, 1990, unreported] and A.G. Can. V. Plourde [A-80-90, September 13, 1990, unreported]. Commission counsel further submitted that the letters of July 20 and December 17, 1990 both addressed the Commission's refusal of a request to reconsider the original decision pursuant to section 43 of the Act, apart from the issue of the delayed appeal.
The relevant statutory provision is section 79(1) of the Unemployment Insurance Act, which reads:
79.(1) The claimant or an employer of the claimant may at any time within thirty days after the day on which a decision of the Commission is communicated to him, or within such further time as the Commission may in any particular case for special reasons allow, appeal to the board of referees in the manner prescribed.
As I read them, the Chartier and Plourde decisions, supra, affirmed the principle that a Board of Referees has no jurisdiction to question the exercise of the Commission's discretionary power under section 79(1) of the Act unless it is made to appear to them that the Commission had exercised such discretion in a non-judicial manner, that is, by taking into account irrelevant considerations or neglecting to take into account relevant considerations. The Court did not further elaborate on what might be considered relevant or irrelevant considerations.
Wade, Administrative Law [Clarendon Press Oxford 1988], 6th ed., pp. 411-12,offers the following lucid explanation of these terms:
Relevant and irrelevant considerations
There are many cases in which a public authority has been held to have acted from improper motives or upon irrelevant considerations, or to have failed to take account of relevant considerations, so that its action is ultra vires and void. It is impossible to separate these cleanly from other cases of unreasonableness and abuse of power, since the court may use a variety of interchangeable explanations, as was pointed out by Lord Greene. Regarded collectively, these cases show the great importance of strictly correct motives and purposes. They show also how fallacious it is to suppose that powers conferred in unrestricted language confer unrestricted power.
Lord Esher MR stated the "irrelevant considerations doctrine in a case where a vestry had mistakenly fixed the pension of a retiring officer on the erroneous assumption that they had no discretion as to the amount: 1
But they must fairly consider the application and not take into account any reason for their decision which is not a legal one. If people who have to exercise a public duty by exercising their discretion take into account matters which the courts consider not to be proper for the exercise of their discretion, then in the eye of the law they have not exercised their discretion.
M.N.R. v. Wrights' Can. Ropes Ltd., [1947] 1 D.L.R. 721 (P.c.), [1947] C.T.C. 1 was an appeal from three tax assessments wherein the Minister disallowed certain of the taxpayer's expenses pursuant to a discretion accorded him by section 6(2) of the Income War Tax Act. The taxpayer's appeal to the Exchequer Court had been dismissed, but an appeal to the Supreme Court of Canada was allowed and the assessments were referred back to the Minister for reconsideration. The Minister's appeal to the Privy Council was dismissed on the basis that the judgment of the Supreme Court of Canada be varied in certain respects. On the issue of the meaning of the word "discretion" in section 6(2) of the Act, Lord Greene M.R. said at p. 730 D.R.L., pp. 13-14 C.T.C.:
... the Court is entitled to examine the determination of the Minister and is not necessarily to be bound to accept this decision. Nevertheless the limits within which the Court is entitled to interfere are in their Lordships' opinion strictly circumscribed. It is for the taxpayer to show that there is ground for interference and if he fails to do so the decision of the Minister must stand. Moreover, unless it be shown that the minister has acted in contravention of some principle of law the Court, in their Lordships' opinion, cannot interfere: the section makes the Minister the sole judge of the fact of reasonableness or normalcy and the Court is not at liberty to substitute its own opinion for his. But the power given to the Minister is not an arbitrary one to be exercised according to his fancy. To quote the language of Lord Halsbury L.C. in Sharp v. Wakefield [1891] A.C. 1 73 at p. 179 he must act "according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be, not arbitrary, vague and fanciful, but legal and regular".
And again at p. 731 D.L.R., pp. 14-15 C.T.C.:
Their Lordships' find nothing in the language of the Act or in the general law which would compel the Minister to state his reasons for taking action under section 6(2). But this does not necessarily mean that the Minister by keeping silence can defeat the taxpayer's appeal. To hold otherwise would mean that the Minister could in every case or at least the great majority of cases render the right of appeal given by the statute completely nugatory. The Court is, in their Lordships' opinion, always entitled to examine the facts which are shown by evidence to have been before the Minister when he made his determination. If those facts are in the opinion of the Court insufficient in law to support it the determination cannot stand. In such a case the determination can only have been an arbitrary one. If, on the other hand, there is in the facts shown to have been before the Minister sufficient material to support his determination, the court is not at liberty to overrule it merely because it would itself on those facts have come to a different conclusion. As has been already said, the Minister is by the subsection made the sole judge of the fact of reasonableness and normalcy but as in the case of any other judge of fact there must be material sufficient in law to support his decision.
See also Pioneer Laundry & Dry Cleaners Ltd. V. Minister of National Revenue, [1939] 4 D.L.R. 481 (P.c.), [1938] C.T.C. 411.
Having regard to these principles, it seems clear that the question before the Board of Referees was that of whether the discretionary power given the Commission under 79)1) of the Act to extend the time for appeal had been exercised judicially and according to law, as opposed to being arbitrary and fanciful. The Board was required to examine the facts with a view to making that necessary determination. Here, the Board found that "the Commission made the correct decision in denying Mr. Amor's right to appeal in accordance with Section 79 of the Unemployment Insurance Act". Seemingly, this conclusion was based on the Board's findings of fact that the claimant had considerable experience with unemployment insurance claims and that he chose not to inquire about the status of his claim until June 8, 1990. As a further buttress to its conclusion, the Board made the opinionative finding that it was the Commission's administrative choice whether to use registered mail or ordinary mail in communicating notices and documents to claimants, thus rejecting the claimant's argument as to the applicability of section 102(2) of the Act. However, the Board neglected to make any specific credibility finding with respect to the claimant's argument that he had never received the Commission's letters of January 19 and July 20, 1990 in the ordinary course of mail.
The inference can be readily drawn that the Board's findings of fact were predicated largely on the reasons given by L. Brimble for rejecting any special reasons for the delayed filing of the appeal, as recorded in a supplementary record of claim (Exhibit 10), wherein the agent states, inter alia:
- Claimant enquired on 8 June 1990, asking why "the claim" terminated and was replied to on 15 June 1990.
- On 26 October 1990, claimant enquired again and was advised he could appeal or refile if he wanted benefits.
- Letter of appeal was received 19 November 1990.
- Claimant's reasons for the delay is that he never received the decision letters of 19 January or 20 July 1990. He alleges he did submit the R.O.E. timely, so ignored the computer notice requesting the R.O.E. He further alleges trying to make an appointment with an Agent for June 1, 1990 and that he had enquired of the 4 January 1990 letter.
DECISION:
The delayed appeal will not be accepted since it was not submitted within the time specified by Section 79 of the Act and no special reason exists that could justify the extension of the appeal period.
I am aware that the claimant has considerable experience with U.I. claims. Therefore, it's unlikely he would wait until June to enquire why he wasn't receiving benefits. I'm sure his previous claims also show he receives mail at Box 3611 without problems. It's curious how he received claimant reports and computer notices addressed to Box 3611 but not the decision letters of 19 January 1990. Furthermore, evidence on previous claims attest to the claimant's knowledge of the 30 day appeal period and procedures.
In my view, the supposition that it was unlikely that the clamant would wait until June to enquire why he was not receiving benefits is nothing more than self-serving speculation, especially in light of the claimant's explanation that he had never received the letters from the Commission dated January 19, and July 20, 1990. The same thing can be said of the implicit presumption that the claimant would probably have received these letters in the ordinary course of the mails, despite the absence of any certificate under section 102(2) of the Act. Furthermore, the issue of whether the claimant had given sufficient special reasons to warrant an extension of the appeal period should have been decided on the facts and circumstances of the particular case before the insurance agent, and not on evidence of previous claims said to "attest to the claimant's knowledge of the 30 day appeal period and procedures". I find that these factors, taken in their entirety, constituted irrelevant and extraneous considerations in motivating the discretionary decision to refuse an extension of the appeal period. Where letters were said to have been mailed to the claimant, but the claimant denied having received them and there is no certificate or other proof to the contrary, then the claimant should have been given the benefit of the doubt in the matter of special reasons: see McFarlane et al, the Annotated Unemployment Insurance Act 1993 [Carswell], p. 401.
The Board of Referees was required to examine the facts with a view to determining whether the Commission's discretionary decision was made according to sound and reasoned principles as opposed to being arbitrary and fanciful. Instead, the Board of Referees simply chose to paraphrase and rely on irrelevant considerations taken into account by the Commission in the exercise of its discretionary power under section 79(1) of the Act, without paying any regard to the question of whether such discretion had been exercised judicially. In my opinion, the Board's failure in that regard constitute a serious error of law. Such being the case, I propose to exercise my discretion under section 81 of the Act and refer the matter back to a differently constituted board of referees for rehearing and redetermination as to the merits of the claimant's appeal, unless the Commission concedes the matter in favour of the claimant.
The claimant's appeal is allowed accordingly.
J. C. McNair
UMPIRE
Ottawa, Ontario
July 20, 1993