IN THE MATTER of the Employment Insurance Act
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IN THE MATTER of a claim for benefits by
CORINNE J. McINTOSH
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IN THE MATTER of an appeal by the Claimant to an Umpire from a decision by the Board of Referees given at Regina, Saskatchewan, on November 15, 2002.
DECISION
Heard at Saskatoon, Saskatchewan, on October 1, 2003.
THE HONOURABLE MR. JUSTICE W.J. HADDAD, Q.C., UMPIRE:
The claimant filed this appeal. The claimant made an application for benefits and the Employment Insurance Commission informed the claimant in writing on October 31, 2001, that she was disqualified for having voluntarily left her employment without just cause.
Neither the claimant or her representative appeared despite the fact that a notice was sent to the claimant by ordinary mail from the Office of the Umpire to inform her of the date scheduled for this appeal. I proceeded with the appeal notwithstanding.
On July 8, 2002 claimant filed a written notice of appeal to the Board of Referees dated July 3, 2002. The Commission refused to accept claimant's appeal because it was filed well beyond the 30-day limit provided by the Employment Insurance Act, section 114 which provides:
114(1) A claimant or other person who is the subject of a decision of the Commission, or the employer of the claimant, may appeal to the board of referees in the prescribed manner at any time within
(a) 30 days after the day on which a decision of the Commission is communicated to them, or
(b) such further time as the Commission may in any particular case for special reasons allow.
The Commission declined the request for an extension of the time for appeal having ruled that the claimant did not provide "special reasons".
Section 114 confers upon the Commission a discretion to determine whether the reasons for delay should be considered "special reasons". The only ground of appeal by a claimant, therefore, to a Board of Referees, from the Commission's refusal to extend the time for appeal is that the Commission failed to exercise its discretion in a judicial manner. The Board's role is, therefore, limited to determining whether the Commission acted on the basis of irrelevant considerations or without regard to factors of relevance.
The Board of Referees did not determine the validity of the discretion exercised by the Commission. Instead, the Board delved into the merits of the claimant's reasons for delay and determined the appeal on that basis. The Board erred in law.
I resolve this appeal by referring the matter back to be re-heard and re-determined by a differently constituted Board of Referees with the direction that the Board restricts its deliberations to the issues as to whether the Commission exercised its discretion judicially.
I should give recognition to the fact that counsel for the Commission, at the opening of the appeal, immediately identified the error committed by the Board of Referees.
Appeal allowed.
"W.J. Haddad"
W.J. Haddad, Q.C. - Umpire
Dated at Edmonton, Alberta,
November 10, 2003.