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Delayed Appeal to the Board of Referees
Disclaimer:
*This asterisk denotes recent case law.
Questions to Answer
- Was the appeal filed outside the legislated time limit?
- Did the Commission exercise its discretion judicially in deciding whether or not to extend the appeal period for special reasons?
References
Act: subsection 114(1)
Legal test
- Time limit to file an appeal to the board of referees: 30 days after the day on which a decision is communicated to the appellant - subsection 114(1)
- The authority to extend the time for appeal is vested in the Commission and not in the Board of Referees or the Umpire - DYSON A-16-94
- In deciding whether or not to extend the appeal period for special reasons, the Commission must exercise its discretion in a judicial manner KNOWLER A-346-93, CHARTIER A-42-90, PLOURDE A-80-90
- The Board of Referees cannot substitute its discretion for that of the Commission unless it finds that the Commission did not exercise its discretion judicially - considered irrelevant matters or failed to consider relevant matters - CHARTIER A-42-90, PLOURDE A-80-90
- Example of non-judicial manner:
- bad faith or for an improper purpose or motive
- taking into account an irrelevant factor
- ignoring a relevant factor, or
- acting in a discriminatory manner
PURCELL A-694-94
Onus of proof
The claimant must prove to the Commission that it has special reasons for delay
FALARDEAU A-396-85
The Commission must prove that it exercised its discretion in a judicial manner
CHARTIER A-42-90, PLOURDE A-80-90
Key Case Law
Discretionary Authority/ Onus of Proof
- LETTIERI A-64-94: Delay due to lawyer not filing appeal in a timely manner.
- CARRIER T-370-95: Recent Board of Referees decision allowing a similar substantive issue.
- SIROIS A-600-95: The Board of Referees must give a valid reason for its finding that the Commission failed to exercise its jurisdiction judicially.
- PODGORSKI A-127-95: The date the claimant was notified of the decision and the 30-day appeal period must be taken into account.
- NOOR A-314-98: Claimant must prove special reasons.
- MACLEOD A-194-98: Failure of the Commission to notify the claimant of the 30-day appeal period in correspondence sent after the initial notification does not create a right under the EI Act.
Legal Test
CARDAMONE A-432-96: Applying the test of "good cause" instead of "for special reasons" is an error in law.
Special Reasons
CARDAMONE A-432-96: Factors such as the seriousness of a determination that false or misleading statements have been made, the amount of the penalty imposed, and the fact that there was a delay of only about one month after the time limit for the appeal are special reasons to be taken into account.
BERNIER A-692-91, PLOURDE A-80-90: New case law does not constitute a special reason capable of excusing a delay in appealing.
MARTIN A-1001-92: Delay due to claimant not believing he had sufficient evidence does not constitute a special reason for a two-year delay.
2012-04-03