Docket: T-1500-15
Citation:
2017 FC 297
Vancouver, British Columbia, March 21, 2017
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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PATRICK DALEY
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant, Mr. Patrick Daley, applied
under section 18.1 of the Federal Courts Act, RSC, 1985, c F-7
for judicial review of a decision of the Social Security Tribunal—Appeal
Division (SST-AD) dated July 24, 2015. The SST-AD dismissed Mr. Daley’s appeal
of the decision of the Social Security Tribunal—General Division (SST-GD),
which had refused his request for an extension of time to file a request for
reconsideration under section 112 of the Employment Insurance Act, SC 1996,
c 23 [EIA].
[2]
Mr. Daley represented himself on this
application. At the conclusion of the hearing, I advised him that his
application would not be successful, gave him a brief explanation, and advised
him that I would provide more extensive reasons in writing. These are those
reasons.
[3]
On October 30, 2008, Mr. Daley applied for and
received employment insurance (EI) benefits under the EIA. On September 28,
2011, the Canada Employment Insurance Commission (Commission) issued a Notice
of Decision and a Notice of Violation indicating that Mr. Daley had knowingly
made false or misleading statements, as he did not report his earnings from May
2009 to September 2009 from his employer, Bell Telephone Company, while
receiving regular EI benefits. As a result, the Commission imposed a penalty of
$1030.00 under the EIA.
[4]
More than two years after the decision was
communicated to Mr. Daley, on December 13, 2013, he filed a request for
reconsideration of the Commission’s decision dated September 28, 2011. His
request for reconsideration was denied by the Commission on January 6, 2014, pursuant
to paragraph 112 (1) (a) of the EIA. Mr. Daley appealed this decision to
the SST-GD on February 13, 2014.
[5]
A teleconference hearing was scheduled to be
heard on November 10, 2014, which Mr. Daley failed to attend. On November 12,
2014, the SST-GD dismissed Mr. Daley’s appeal for the following reasons: (i)
the request for reconsideration was late; (ii) a reasonable explanation was not
provided for the late request; (iii) Mr. Daley did not demonstrate a continuing
intention to request a reconsideration; (iv) Mr. Daley did not show that he had
an arguable case; and (v) prejudice to the other parties would be significant.
[6]
On December 9, 2014, Mr. Daley filed an
application requesting leave to appeal to the SST-AD. He indicated that he
underwent a medical operation on December 10, 2014, and that he was in recovery
at the time of the hearing on November 10, 2014. On June 2, 2015, the SST-AD
granted Mr. Daley leave to appeal, but invited him to provide evidence on his
inability to attend the hearing before the SST-GD on November 10, 2014. In
particular, the SST-AD indicated that the dates provided by Mr. Daley regarding
the timing of his medical operation made no sense.
[7]
Mr. Daley did not file any additional evidence
or submissions; therefore, the SST-AD decided the appeal based on the written
record. On July 24, 2015, the SST-AD dismissed the appeal based on the fact
that Mr. Daley failed to substantiate his arguments, and there was no breach of
natural justice. As a result, Mr. Daley brought this application for judicial
review of the SST-AD’s decision. Initially, there was some confusion between
the parties as to the court in which the application should be brought, i.e.,
this Court or the Federal Court of Appeal. That confusion caused some further
delay before it was resolved but has no bearing on the merits of the
application.
[8]
I heard the application on March 8, 2017. At the
outset of the hearing, Mr. Daley appeared to be under the mistaken impression
that the Court could resolve his dispute with the Commission. As I explained to
him during the hearing, that was not within the scope of the Court’s jurisdiction
on judicial review of the decision of the SST-AD.
[9]
The sole issue in this application is to
determine whether the SST-AD’s decision to dismiss Mr. Daley’s appeal of the
decision of the SST-GD refusing an extension of time to file a request for
reconsideration is unreasonable. Having considered the evidence and the oral
and written submissions of the parties, I am unable to find any basis upon
which to justify the Court’s intervention.
[10]
The SST-AD’s decision is reasonable as it is
justifiable, transparent and intelligible. Although brief, the reasons made
clear the process that the Tribunal Member had followed in ruling on Mr.
Daley’s appeal of the SST-GD’s decision: Dunsmuir v New Brunswick, 2008
SCC 9, [2008] SCJ No 9 at paras 47–49.
[11]
The crux of the matter on this application is
whether Mr. Daley has demonstrated that he had met the criteria for an
extension of time to request reconsideration under section 112 of the EIA.
Pursuant to paragraph 112 (1) (a) of the EIA, Mr. Daley had 30 days after
the day he received the Commission’s decision to request reconsideration of
that decision. Under paragraph 112 (1) (b) of the EIA, at the conclusion
of 30 days, the Commission has discretion to allow for further time to request
reconsideration.
[12]
Mr. Daley sought to bring new medical evidence to
this Court’s attention to explain the conflicting dates regarding his medical
operation at the time of the SST-GD hearing on November 10, 2014. The new
evidence includes a clinical note dated November 10, 2014, and two X-ray and
ultrasound medical notes dated April 30, 2015.
[13]
The SST-AD hearing took place on July 24, 2015. As
such, Mr. Daley had the opportunity to file this evidence with the Tribunal to
support his case. However, he failed to do so. The new medical evidence does
not fall within any of the exceptions to the principle that fresh evidence is
not admissible on judicial review, such as to address a procedural fairness
issue or to provide background information, which would allow for their receipt
in this Court.
[14]
The new medical evidence was not before the
decision maker and it goes to the merits of the matter; accordingly, it is not
admissible in this application for judicial review: Association of
Universities and Colleges of Canada v Canadian Copyright Licensing Agency, 2012
FCA 22, [2012] FCJ No 93 at paras 19–20, cited in Connolly v
Canada (Attorney General), 2014 FCA 294, [2014] FCJ No 1237 at para 7.
[15]
I understand that Mr. Daley has had a number of
serious medical problems that required his attention and medical care over the
course of the past decade. However, he waited over two years before filing a
request for reconsideration. He also failed to provide any evidence to
substantiate his arguments that an extension of time was warranted. As such, he
has not demonstrated diligence in pursuing his cause. In the circumstances, I
am not persuaded that the SST-AD’s decision to dismiss Mr. Daley’s appeal is
unreasonable. For that reason, this application for judicial review cannot
succeed.
[16]
Mr. Daley has asked the Court to consider the “interests of justice” in deciding this application.
There are many instances in which the equities lie in favour of an applicant
who has missed a filing date and the Court will frequently exercise its
discretion to rule accordingly. This is not such a case.
[17]
As costs were not requested, none will be
awarded.
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