CUB 70567

GUY GOULARD, Umpire

The claimant filed a claim for employment insurance benefits which was established effective March 20, 2005. By letter dated June 25, 2005, the Commission informed the claimant that he was not entitled to benefits and that he had been given a penalty and a notice of violation for knowingly providing false or misleading information. On September 11, 2006, the Commission received a letter from the claimant explaining the circumstances of his loss of employment. On November 6, 2006, the Commission informed the claimant that it was maintaining its decision. The Commission's letter was returned as undelivered. On April 16, 2007, the Commission received the claimant's letter of appeal.

The Commission refused to grant an extension to the30-day limit to appeal its decision because the claimant had failed to establish special reasons for his delay in appealing.

The claimant appealed the Commission's decision refusing to extend the time to appeal to a Board of Referees which dismissed the appeal. He appealed the Board's decision. This appeal was heard in Saskatoon, Saskatchewan on May 7, 2008. The claimant was present.

The reason given by the claimant for not appealing earlier was that he had been incarcerated and that made it difficult to obtain what he needed to write his letter of appeal. He did not specify when he had been incarcerated and for how long. At the time the claimant communicated with the Commission to request a review of its decision, he gave an Edmonton, Alberta address where the Commission replied on November 6, 2006. This letter was returned as undeliverable. The claimant advised that he had moved on several occasions. Pursuant to subsection 50(9) of the Employment Insurance Act, it is incumbent on a claimant to provide the address of his or her normal place of residence. The Commission's initial decision letters had not been returned.

The claimant appeared before the Board of Referees and stated that he had not appealed earlier because he was incarcerated on March 25, 2007. He reiterated that he had moved around and that his life was hectic and he did not feel it was important to keep in touch.

The Board of Referees reviewed the evidence and noted that the Commission holds the discretion to extend the time to appeal one of its decisions. The Board dismissed the claimant's appeal for the following reasons:

"The Board finds, as a fact, that the claimant was not incarcerated when notices of decision were sent to him on June 25, 2005 and when he submitted his letter of inquiry dated August 28, 2006.

The claimant's response letter of August 28, 2006 reflects that he had, in fact, received his disqualification letter of June 25, 2005. With that letter, a notification of the 30 day appeal process was included.

The Board finds that the claimant has failed to show special reasons for the 630 day delay in presenting his appeal."

In his letter of appeal to the Umpire, the claimant reiterated that his life had been hectic and that he had not been aware of the appeal procedure. He added that one of the reasons for not appealing earlier was that he knew he had done nothing wrong from the start and felt he should not be penalized for a mistake he never committed. At the hearing, the claimant submitted arguments in regard to his disqualification and the imposition of a penalty. He added that at the time he had been depressed and had not fully understood the severity of the situation and the need to appeal.

It has been determined by the Federal Court of Appeal in A-42-90 that the Employment Insurance Act gives the Commission the discretion to extend the 30-day limit to appeal a decision and that this exercise of discretion should not be disturbed by a Board of Referees or an Umpire unless it is established that the Commission did not exercise its discretion in a judicial manner by either taking into consideration irrelevant matters or by failing to take into consideration relevant matters.

In A-694-94, the Court provided the following definition to the expression "in a judicial manner":

"Counsel for the Commission acknowledges that a discretionary power must be exercised "judicially". I take that term to mean that if it can be established that a decision-maker acted in bad faith or for an improper purpose or motive, took into account an irrelevant factor or ignored a relevant factor or acted in a discriminatory manner, then any decision which flows from the exercise of a discretionary power will be set aside."

It is well established in the jurisprudence that a claimant cannot simply state that he was not aware there was a time limit to file his appeal or that he did not understand or agree with the Commission's decisions. He has an obligation to act as a reasonable person would do by taking steps to inform himself of his rights and obligations in regard to his claim (A-644-93 and A-172-85). In the initial decision letters sent to the claimant, he had been told that there could be consequences in regard to future claims and that if he wanted additional information he could communicate with the Commission. It was also clearly stated that he had 30 days to appeal the decisions. These letters had not been returned. The claimant did not communicate with the Commission for over a year to express his disagreement with the Commission's decisions and his desire that the Commission reconsider its decisions. He then neglected to follow-up for another eight months.

There are reasons for the inclusion of limits for certain procedures under the Act. The purpose of these requirements was well stated by Justice McNair in CUB 12818:

"The legislative provisions setting out the requirements for making an initial application for benefit have been enacted by Parliament for a special purpose, that is, to ensure the efficient and effective administration of the Unemployment Insurance scheme. The provisions are not meaningless nor redundant. Rather, they are the law and must be complied with unless a claimant is able to demonstrate that he had good cause for not doing so."

An Umpire's jurisdiction is limited by subsection 115(2) of the Employment Insurance Act. Unless the Board of Referees failed to observe a principle of natural justice, erred in law or based its decision on an erroneous finding of fact made in a perverse manner or without regard for the material before the Board, an Umpire is required to dismiss an appeal.

In A-547-01 Justice Létourneau stated that the role of an Umpire is limited to deciding if the Board of Referees' appreciation of facts is reasonably compatible with the evidence before the Board.

The claimant has not shown that the Board of Referees erred. To the contrary, the Board's decision is entirely compatible with the evidence before the Board and with the applicable legislative provisions as interpreted in the jurisprudence. The claimant had taken no steps to appeal the Commission's decisions for some 21 months.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
May 15, 2008