CUB 22575B
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
December 13, 1994
Docket:
A-185-94
Umpire's Decision:
CUB 22575B
CORAM :
THE HONOURABLE MR. JUSTICE STRAYER
THE HONOURABLE MR. JUSTICE DÉCARY
THE HONOURABLE MR. JUSTICE McDONALD
BETWEEN :
IN RE The Unemployment Insurance Act
ATTORNEY GENERAL OF CANADA,
applicant,
-and-
CONITA CHAN,
respondent.
Heard at Calgary, Alberta, on December 12, 1994.
REASONS FOR JUDGMENT
(Judgment delivered at Calgary, Alberta,
on Tuesday, December 13, 1994)
DÉCARY, J.A.:
On April 30, 1993, the Umpire allowed an appeal by the Canada Employment and Immigration Commission (the "Commission") from a decision of a Board of Referees (the "Board") rendered November 8, 1991. The Umpire found that the Board had erred in law in allowing the respondent to backdate her claim without a finding of "good cause for delay" and he ordered that there be no backdating of the claimant's claim.
By letter dated May 30, 1993, the respondent requested reconsideration of the April 30, 1993 decision pursuant to section 86 of the Unemployment Insurance Act 1 (the "Act"). She apologized for not having been present at the hearing before the Umpire and requested another hearing "so that [she] can present [her] case for delay in claiming the Unemployment Insurance benefits". She added the following:
As mentioned in earlier correspondence, the main reason for delay in making claim was because I was waiting for the corrected record of employment from my ex-employer... I did not obtain the amended record of amendment until July 6, 1991 and filed my claim immediately on the next day. The delay was also due to my lack of understanding and experience in filing for U.I.C. I was informed by the local U.I.C. office that claims can be made within one year after unemployment but was not informed of the consequence that I would lose part of my benefit.
On September 13, 1993, the Umpire denied the application for reconsideration. He was not satisfied that the respondent had presented any new facts which did not exist at the time of her original hearing before him and that his decision was given without knowledge of some material fact or was based on a mistake as to some material fact.
By letter dated October 30, 1993, the respondent made a further request for reconsideration. She based her request on the following "additional information" which, she says, had never been considered previously:
... I was advised that I had up to one year to file for my claim. However, I was not advised of the consequence that I would lose part of my benefit due to late filing... I just recalled the reasons why I waited for the corrected record of employment...
On March 17, 1994, the Umpire allowed the application for reconsideration "on the basis of the new facts submitted by the claimant".
With respect, I find three reviewable errors in the Umpire's reasons.
The first one is that he failed to realize that in the case at bar the facts alleged in the second application had already been alleged in the first application and were already found by the September 13, 1993 reconsideration decision not to be "new facts". Whether we consider the second application as being directed against the April 30, 1993 or against the September 13, 1993 decision, facts which were not "new" on September 13, 1993 could not have been found to be "new" on March 17, 1994.
The second error is that the alleged new facts are not facts which, had they been alleged before the Commission, the Board of Referees or the Umpire, could have constituted "good cause for delay". As was recently restated by this Court in A.G. Canada v. Larouche 2 good faith and ignorance of the law are not by themselves a valid excuse for not having complied with legal provisions.
The third error is that even if the so-called "new facts" had never been alleged before and even if they had constituted "good cause for delay", they would not have constituted "new facts" for the purposes of an application for reconsideration.
A different version of facts already known to the claimant, mere afterthoughts or the sudden realization of the consequences of acts done in the past 3 are not "new facts". "New facts", for the purpose of the reconsideration of a decision of an umpire sought pursuant to section 86 of the Act, are facts that either happened after the decision was rendered 4 or had happened prior to the decision but could not have been discovered by a claimant acting diligently and in both cases the facts alleged must have been decisive of the issue put to the umpire.
Reconsideration of a decision by an umpire on the basis of "new facts" having been submitted is and should remain a rare commodity. Unemployment insurance claimants are given an exceptionally large number of opportunities to challenge the decisions affecting them and umpires should be careful not to let the reconsideration process be abused by careless or ill-advised claimants. In the case at bar, there can be no doubt that the reasons for which the respondent has filed her claim out of time are "facts" which existed at the time of the hearing before the Commission, before the Board of Referees and before the Umpire, and which were at all relevant times within the personal knowledge of the respondent. They cannot by any stretch of the imagination be considered as "new facts" for the purpose of reconsidering the decision rendered by the Umpire.
The application for judicial review should be allowed, the second reconsideration decision made by the Umpire on March 17, 1994 should be set aside and the first reconsideration decision made by the Umpire on September 13, 1993 should be restored.
"Robert Décary"
J.A.
1 R.S.C. 1985, C. U-1, as amended. Section 86 reads as follows:
86. The Commission, a board of referees or the umpire may in respect of any decision given in any particular claim for benefit rescind or amend the decision on the presentation of new facts or on being satisfied that the decision was given without knowledge of, or was based on a mistake as to, some material fact.
2 (15 November 1994), A-644-93 (F.C.A.) [unreported].
4 As in Pelletier v. Canada (Employment and Immigration Commission) (1 April, 1993), A-109-92 (F.C.A.) [unreported] where the testimony given by a representative of an employer before another instance long after the hearing before the Board of Referees was found to be a "new fact".
2011-01-10