CHAPTER 2

THE HEARING

 

2.3 Preliminary Objections

2.3.2 The Appeal is late

The party which realizes that the appeal is late, that is beyond the period of 30 days prescribed in s. A. 114 Section 114 of the Act or any additional time allowed by the Commission for special reasons, may raise a preliminary objection to this effect. However, normally a late claimant takes the initiative to ask the Commission for a postponement. It is the task of the Commission under s. A. 114 to determine what the special reasons are but it must exercise "this discretion judiciously",^{304 Citation 304} that is in a manner that is not arbitrary.^{305 Citation 305} The decision of the Commission in this regard may be appealed to the board.^{306 Citation 306}

The board may not substitute its discretion for that of the Commission.^{307 Citation 307} If the Commission asks the claimant to explain the delay, the claimant must provide reasons.^{308 Citation 308}

In all cases, it is necessary to respect "the highly understandable desire of Parliament to impose a normal time for appeal".^{309 Citation 309} It is really necessary to have a "special reason".^{310 Citation 310} We believe that the concept of "special reason" applicable to extensions of the 30-day period for appeals to the board is similar to that applying to appeals to the Umpire (s. A. 116 Section 116 of the Act).

Thus, the difficulty experienced by the claimant in contacting his or her counsel and counsel's failure to act on a mandate for months is not a valid reason.^{311 Citation 311} The fact that the lawyer was out of town most of the time did not excuse a delay of more than six months.^{312 Citation 312} The appearance of a new decision one year after the Commission's decision was not a valid reason for extending the time.^{313 Citation 313} The fact that the claimant was awaiting a reply from his MP is also not a valid reason for extension.^{314 Citation 314} Nor was the fact that the claimant did not feel that he had sufficient evidence after the normal period.^{315 Citation 315} The same is true of a change of address.^{316 Citation 316}

Good faith and ignorance of the law are not usually considered to be valid reasons.^{317 Citation 317} Absent clear indications to the contrary, "it is a fundamental principle that ignorance of the law does not excuse a failure to observe a legislative limitation period".^{318 Citation 318} A union's failure to act,^{319 Citation 319} or the fact that a person is waiting for the Commission to appeal are not valid reasons.^{320 Citation 320} The same is true of the claimant's negligence or forgetfulness.^{321 Citation 321}

The following have been considered to be "special reasons" - a claimant's particular difficulties in expressing himself;^{322 Citation 322} the loss of the application for appeal in the mail;^{323 Citation 323} an application for legal aid the reply to which was received after the time expired;^{324 Citation 324} language problems experienced by the claimant;^{325 Citation 325} the extent of the overpayment, the inconvenience that it caused, the circumstances of the case and the lack of harm to the Commission;^{326 Citation 326} health problems of the claimant or a relative;^{327 Citation 327} the fact that the party was waiting for a decision of a criminal court or a decision of the Commission in a similar case;^{328 Citation 328} the fact that the claimant sent his docket to a minister or an MP;^{329 Citation 329} and an administrative error made by the clerk.^{330 Citation 330}

 

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