DF v Canada Employment Insurance Commission

DF v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2022-02-03 Neutral citation 2022 SST 49 Reference number AD-22-54 Member Janet Lew Division Appeal Division Decision Extension of time to file an application refused Related decisions SST - DF v Canada Employment Insurance Commission - 2020 SST 1252 - 2020-08-14 - General Division Subjects Appeal Division - Leave to appeal - No grounds of appeal Decision Content Citation: DF v Canada Employment Insurance Commission, 2022 SST 49 Social Security Tribunal of Canada Appeal Division Extension of Time and Leave to Appeal Decision Applicant: D. F. Respondent: Canada Employment Insurance Commission Decision under appeal: General Division decision dated August 14, 2020 (GE-20-1753) Tribunal member: Janet Lew Decision date: February 3, 2022 File number: AD-22-54 On this page Decision Overview Issue Analysis Conclusion Decision [1] An extension of time to apply for leave (permission) to appeal is refused. The appeal will not be going ahead. Overview [2] The Applicant, D. F. (Claimant), is appealing the General Division decision of August 14, 2020. The General Division found that the Claimant received earnings from her employment. The General Division allocated (applied) these earnings against her Employment Insurance claim, resulting in an overpayment of benefits. [3] The Claimant argues that Service Canada was negligent in reviewing her claim and her entitlement to benefits. She is asking the Appeal Division to hold Service Canada and the Respondent, the Canada Employment Insurance Commission (Commission) accountable. She is also asking for a deduction of “the 14 weeks owing from the unused balance of weeks [she has] left in [her] Service Canada account.”Footnote 1 [4] The Claimant has not otherwise identified any grounds of appeal. Before the Claimant can move ahead with her appeal, I have to decide whether the appeal has a reasonable chance of success. But before that, I have to decide whether the Claimant filed her application on time. If she filed her application late and cannot get an extension of time, this ends her application. Issue [5] Was the application to the Appeal Division late? Analysis The Claimant received the General Division decision in August 2020 [6] The General Division issued its decision on August 14, 2020. The Social Security Tribunal sent a copy of its decision to the parties by email on August 14, 2020. [7] Under the Social Security Tribunal Regulations, the General Division decision is deemed to have been communicated to the parties “on the next business day after the day on which it is transmitted.”Footnote 2 In this case, that means the decision is deemed to have been communicated to the parties on Monday, August 17, 2020. [8] There is no dispute that the Claimant received the General Division decision on August 17, 2020. Phone log notes indicate that the Claimant contacted the Tribunal that day. She wanted information about the General Division decision. The Tribunal invited the Claimant to write. The Claimant wrote to the Tribunal later that same day about the decision. She referred to a specific portion of the decision.Footnote 3 She clearly had the General Division by then. The application to the Appeal Division was too late to allow for an extension [9] The Claimant did not file her application with the Appeal Division on time. [10] The Claimant had 30 days after getting the General Division decision.Footnote 4 As she received the decision on August 17, 2020, she had to file an application by no later than September 16, 2020. [11] The Claimant did not file her application until January 23, 2022. This was more than 500 days after she got the General Division decision. [12] An application cannot go ahead for any reason if an applicant made it more than a year after the General Division decision was communicated. No extensions are available to the Claimant. There are no exceptions to this rule, even if the Claimant has an arguable case that the General Division made a legal or factual error.Footnote 5 [13] The Appeal Division does not have any power to allow an extension of time after more than one year has passed when the decision was communicated. The Federal Court confirmed this interpretation. As it held in a case called Conte, section 57(2) of the Department of Employment and Social Development Act deprives the Appeal Division of any power to provide an extension of time beyond the one-year limitation prescribed by statute.Footnote 6 [14] As the Claimant’s application comes too late, there is no basis to consider the substance of any of her arguments. Conclusion [15] The Applicant’s application to the Appeal Division comes too late to allow for an extension of time. Her application is refused. This means that the appeal will not be going ahead. Footnotes Footnote 1 See Claimant’s email of January 23, 2022, at AD1-2. Footnote 2 See section 19(1)(c) of the Social Security Tribunal Regulations. For decisions sent by email or other electronic means, the decision is deemed to have been communicated the next business day after the day on which it is transmitted. Footnote 3 The Claimant asked the General Division member to correct her decision and change her decision in the Claimant’s favour. The Tribunal did not respond to the Claimant’s email of August 17, 2020. Footnote 4 See subsection 57(1)(a) of the Department of Employment and Social Development Act (DESD Act). The subsection says that an application to the Appeal Division has to be made within 30 days after the day on which it is communicated to an appellant. Footnote 5 See section 57(2) of the DESD Act, which says an extension can be allowed, but “in no case may an application be made more than one year after the day on which the decision is communicated to the appellant.” Footnote 6 See Conte v Canada (Attorney General), 2021 FC 1182. See also Mahmood v Canada (Attorney General, 2016 FC 487.