Practice Direction 2015-01: Procedure for Completing Incomplete Applications for Leave to Appeal

Date Issued: May 1, 2015

Application

This practice direction applies to incomplete applications for leave to appeal filed with the Appeal Division of the Tribunal. The practice direction applies until rescinded, replaced or modified.

Purpose

The purpose of this practice direction is to set out the procedure for completing an application for leave to appeal to the Tribunal’s Appeal Division, when some of the mandatory information, prescribed by the Social Security Tribunal Regulations (Regulations), is missing.

Background

Section 57 of the Department of Employment and Social Development Act (DESD Act) sets out the timeframe within which an application for leave to appeal may be brought to the Tribunal. The legislated timeframe to bring an application for leave to appeal is different depending if the decision for which leave is being sought is a decision of the General Division Employment Insurance Section or Income Security Section. An application for leave to appeal a decision of the Employment Insurance Section must be made within 30 days after the date the decision was communicated to the appellant. An application for leave to appeal a decision of the Income Security Section must be made within 90 days after the date the decision was communicated to the appellant.

The Tribunal may allow further time to make an application for leave to appeal, but in no case can an application be made more than a year after the communication of the decision to the appellant. If an application is not filed within the timeframe set out in the DESD Act, then a Tribunal Member must decide whether or not to grant an extension allowing further time to make the application before the matter can proceed to the next steps.

Subsection 40(1) of the Regulations determines the information that an application for leave to appeal must contain. However, the Regulations are silent on the procedure for completing an application for leave to appeal in situations where the applicant informs the Tribunal of his or her intention to seek leave to appeal without providing all the information required by the Regulations. In these situations, the Tribunal informs the applicant of the obligation to provide the missing information. However, given the short timeframes, the Tribunal often receives the missing information after the end of the period to file the application.

If the Tribunal were to consider these applications as being filed after the timeframe to seek leave to appeal, decisions on whether or not to grant extensions of time to bring an application would be required before the matter could proceed. Where the intent to seek leave to appeal was signaled within the established timeframe, requiring Members to make quasi-judicial decisions on all these matters would be inefficient and cause unjustified delays. In particular, the Tribunal believes that this situation is contrary to its obligation, set out in paragraph 3(1)(a) of the Regulations, to "conduct proceedings as informally and quickly as the circumstances and the considerations of fairness and natural justice permit".

Subsection 3(2) of the Regulations allows the Tribunal to proceed by way of analogy to the Regulations if a question of procedure arises that is not dealt with by the Regulations. As the Regulations do not provide a specific period of time within which to file missing information in cases of incomplete applications for leave to appeal, the Tribunal is adopting the following procedure:

Procedure for completing an application for leave to appeal

When the Tribunal receives an application for leave to appeal which is missing information required by the Regulations, a letter will be sent to the applicant asking him or her to complete the application for leave to appeal by filing all missing information within 30 days from the date of the letter.

If the Tribunal receives all the missing information within 30 days from the date of the letter, the application will be deemed to have been filed on the date that the incomplete application for leave to appeal was received by the Tribunal.

If the Tribunal receives the missing information after 30 days from the date of the letter, the Tribunal will deem the application to have been filed on the date the Tribunal received all the missing information.

The 30-day period will be counted from the day immediately after the date of the letter the Tribunal sends to notify the applicant that the application is incomplete. The Tribunal must receive the missing information by end of the day on the 30th day.

Once the application for leave is complete, the Tribunal will establish the date the application is deemed to have been filed (as per the criteria above) and a determination will be made as to whether the application was filed within the timeframe to seek to leave appeal or whether a Member must determine whether or not to grant an extension of time.

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