In the Matter of the Employment Insurance Act,
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In the Matter of a claim for unemployment benefits by
John R. Goswell
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In the Matter of an Appeal by the Claimant
from the decision of a Board of Referees given
at New Westminster, British Columbia on June 23, 1998
Appeal heard at Vancouver, British Columbia on September 14, 1999
DECISION
THE HON. R. C. STEVENSON, UMPIRE:
Mr. Goswell appeals from the decision of a Board of Referees dismissing his appeal from the Commission's refusal to extend the time for him to appeal from an allocation of earnings and the imposition of a penalty for the making of false or misleading statements.
Subsection 79(1) of the Unemployment Insurance Actprovides that:
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 ...
Notices of the allocation and the penalty were mailed to Mr. Goswell on June 17, 1995 addressed to him in Pictou, Nova Scotia. The letters, in accordance with the usual practice of the Commission, said that if Mr. Goswell disagreed with the decisions he could appeal them within 30 days of receiving the letters by following enclosed instructions.
Mr. Goswell had moved to British Columbia and had not left a forwarding address. Sometime in 1996 a Commission employee in the Dartmouth, Nova Scotia office contacted him about the penalty and overpayment. That employee told him to request transfer of his file to British Columbia when he would be able to commence an appeal.
There is no evidence in the record that Mr. Goswell ever received copies of the June 1995 letters. In April 1998 he attempted to appeal. His letter or notice of appeal is not in the record. The Commission asked him to explain why he had missed the 30 day deadline. He explained the difficulties he had encountered in having his file transferred and that he had been told in 1997 that he could appeal. The Commission denied his request for an extension of time.
In Mr. Goswell's letter of appeal to the umpire he says that the Commission employee in Dartmouth informed him of the overpayment but not of the 30 day appeal period. He further says:
In 1997 (late) or early 1998 he suggested then that once I transferred my file to B.C. I could request an appeal in B.C.
Counsel for the Commission points out that the legislation requires a claimant to supply the Commission with the mailing address of his normal place of residence. That is so, but it is also true that the appeal time does not run until a decision of the Commission is communicated to a claimant.
The Board of Referees said it found "no explanation for the neglect of responding to the appeal process after 4 June 1995." That finding was made without regard for the material, or rather the lack of material, before the Board.
There is nothing in the record to show when the "decisions" of the Commission were communicated to Mr. Goswell. Certainly there is no clear evidence about when the information about the availability of an appeal and the time limit therefor was communicated. In those circumstances an extension of time should be allowed. The appeal is allowed and the time for Mr. Goswell to appeal to the Board of Referees is retroactively extended to April 30, 1998.
RONALD C. STEVENSON
Umpire
FREDERICTON, NEW BRUNSWICK
24 September 1999