Delayed Appeal to the Board of Referees

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Disclaimer:
*This asterisk denotes recent case law.

Questions to Answer

  1. Was the appeal filed outside the legislated time limit?
  2. 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.

Quick Reference