CUB 61257

GUY GOULARD, Umpire

The claimant applied for employment insurance benefits on April 20, 2001. By letter dated February 21, 2002 the claimant was informed of the Commission's decision in regard to his non-entitlement (Exhibit 3). The claimant appealed the Commission's decision on July 18, 2003. The Commission refused to grant an extension to the 30 day limit to appeal its decision because the claimant had failed to establish special reasons for his delay.

The claimant appealed the Commission's decision refusing to extend the time to appeal to a Board of Referees which unanimously dismissed the appeal. He appealed the Board's decision. This appeal was heard in Vancouver, British Columbia on June 16, 2004. The claimant was present.

The claimant stated, at Exhibits 8, 9 and 13, that he had been trying to resolve the issues regarding his claim for a long time and that he had earlier filed an appeal but had sent it to the wrong address. He indicated that he had made several calls to the Commission. He stated that he had requested a meeting to discuss the issue between himself and the Commission and had not been successful.

The claimant appeared before the Board, which summarized the evidence as follows in its decision:

"The appellant stated that his first appeal letter was submitted in early April, 2002, after he received his first letter from the Collections Department. He mailed it to the Collections Department, but unfortunately there is no evidence of that letter. After he received his second letter from the Collections Department, he telephoned them again and was directed to phone the Call Centre. He stated that he believes that from June, 2002, to the present, he called the Call Centre about 30 times and is perturbed that there is no record of any of those calls except the one recorded in Exhibit 4. The appellant did state that on April 12, 2003, he finally received employer information related to actual earnings. He requested a meeting to discuss his declarations with actual earnings and the HRDC decisions in Exhibit 3. He stated that he believed he had done everything he could to resolve the issue by telephoning, meeting with someone in Collections Department, and meeting with some in an EI office."

The Board then went on to decide as follows:

"The Act, Section 114(1)(b), gives the Commission authority to extend the appeal period beyond 30 days where special reasons exist. In its decision (Exhibit 11), the Commission has concluded that special reasons do not exist.

The Board has considered the efforts made by the appellant. He was seen as credible in describing what he did.

Of concern to the Board is evidence in Exhibit 5 where HRDC again reviewed with him on July 2, 2002, the appeal requirements and processes. The appellant's appeal is not submitted until July 17, 2003 (Exhibit 9.3). We can only conclude that the actions he was involved with were focussed on the issue of overpayment and penalty and not on ensuring that a timely written appeal was submitted.

The Board finds that the Commission did exercise judicial consideration of all factors when it concluded that special reasons for extending the appeal period did not exist. The Board is therefore not in a position to change the decision."

It is noteworthy that the Board states in its decision that the claimant, whom it found credible, repeated in his oral testimony what he had stated in Exhibit 9-3 to the effect that he had mailed a letter of appeal within approximately one month of receiving the Commission's decision but that it had been sent to the Commission at a different address. The Commission's evidence was that it had no record of receiving this decision. Following this, the claimant repeatedly stated that he had been in touch with the Commission either by telephone or by attending at the Commission offices on several occasions. The Board concluded that the claimant's actions had been focussed on the issue of the overpayment and penalty and not on ensuring that a timely written appeal was submitted. Yet, the Board had found the claimant credible in stating that he had mailed an appeal letter much earlier. The Commission's statement that it had no record of receiving the claimant's initial letter cannot, by itself, stand as proof that the claimant had not sent the letter. I can take judicial notice that the Commission has on occasion misplaced documents. The claimant maintained that he had done all possible to deal with his claim and in contesting the Commission's decision.

The Commission has the discretion to allow the filing of a delayed appeal to a Board of Referees but, as stated in numerous decisions (Chartier (T-370-95), Dyson (A-16-94) and Martin (A-1001-92)), if it is shown that the Commission failed to consider all relevant evidence in arriving at its decision, intervention by a Board of Referees or an Umpire is warranted.

I find that in this case the Commission failed to take into consideration the claimant's credible evidence that he had sent a letter of appeal withing the prescribed period. The Commission's statement that it had no record of receiving such a letter cannot disprove the claimant's evidence that he had sent it. He should have been given the benefit of the doubt and allowed to proceed with the filing of his appeal.

Accordingly, the appeal is allowed. The Board's decision is set aside and the claimant's appeal of the Commission's decision in regard to filing a late appeal is allowed.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
June 25, 2004