CUB 75559

GERALD T.G. SENIUK, Umpire

This is an appeal by the claimant from the decision by a Board of Referees to deny the claimant's application for an extension of time to file an appeal pursuant to paragraph 114(1)(a) of the Employment Insurance Act.

In its decision, the Board stated, in part, the following (exhibit 15.1, 15.5 and 15.6):

This is a case with a very long history, going back some 7 years with a whole litany of disagreements between the Appellant and the Employment Insurance Commission (EIC). The present issue is that the Appellant has not met the 30 day appeal period for appeals to a Board of Referees as imposed by section 114(1)(a) of the Employment Insurance Act (EIA), was refused an appeal on this basis, as well as a denial of his request for "further time"...for special reasons" under the EIA s. 114(1)(b). The EIC has denied the request for further time which denial is the subject of this appeal....

Given the facts before the Board, and considering the cases interpreting EIA s. 114(1)(b) and particularly CUB 70301 which is very much on point, the Board finds itself unable to open the door to find "special reasons" even missing the 30 day appeal period. It was simply neglect or inattention on an important matter of personal business. Given the unpleasant history of the Appellant's ongoing issues with the Commission when the door opened for him by reason of the letter of January 18, 2010, which was an extraordinary stroke of luck for him he should immediately have filed his appeal, perhaps even to have sent it by registered mail to establish the date of actual mailing.

Accordingly the Board dismisses the Appellant's application for extension of time to file an appeal based on "special circumstances", or it finds no legally recognized valid "special circumstances."

In his appeal to the Umpire, the claimant filed a written submission (exhibit 16), but greater weight is placed upon his oral submission at the hearing which provided an opportunity to assess the claimant. Although the history of his file is many years old, the claimant submits that he has only one disagreement on which he requests an opportunity to be heard on the merits of the case. He states that he did apply in time. Evidence in the docket indicates he had 30 days from January 18, 2010 to appeal and that his appeal letter was stamped as received by the Commission on February 24, 2010. He was in Alberta when he received notice of the appeal deadline. He did not date his appeal letter and does not know the date he mailed it.

The Board cited CUB 70301 in support of its decision. However, it should be noted that in that case, the claimant delayed some four months in appealing. In this case, the documentation arrived in the Commission office at the most seven days late. There is no reason to conclude that the appeal was not mailed in time from Alberta, but arrived late in Nova Scotia. The Board is correct that the claimant could have avoided that confusion by using registered mail. However, the evidence before the Board was that the claimant also called the 1-800 telephone number in Halifax, as per the Commission's letter, but was never transferred to a person who could help him.

The factual circumstances in CUB 70301 involved a 4-month delay. Given the facts of this case with its 7-day delay (at the most), other CUB decisions are also relevant. CUBs 19021, 19020, 19019, 17776 and 11486 are perhaps more on point, and they stand for the following proposition. Special reasons are likely to be found if a claimant can show that he had a "genuine intention" from the beginning of preserving his rights, and that he acted in a reasonable manner in preserving his rights considering the circumstances of the case. Having heard from Mr. Y.H. there is no doubt that he had and has a genuine intention to preserve his rights, and indeed has pursued this opportunity for many years. There is no reason to find that he did not mail his appeal within the time limit and, given his location in Alberta and his employment situation there at the time, his actions seem reasonable.

Accordingly, the appeal is allowed.

Gerald T. G. Seniuk

UMPIRE

Saskatoon Saskatchewan
October 7, 2010