CUB 22573
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
March 17, 1994
Docket:
A-371-93
Umpire's Decision:
CUB 22573
CORAM :
THE CHIEF JUSTICE
STONE J.A.
ROBERTSON J.A.
IN RE: The Unemployment Insurance Act
BETWEEN :
ATTORNEY GENERAL OF CANADA,
applicant,
-and-
JOHN READ,
respondent.
Heard at Calgary on Thursday, March 17, 1994.
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Calgary
on Thursday, March 17, 1994.)
ROBERTSON, J.A.:
We are all of the view that the learned umpire erred in allowing the respondent's appeal, from a decision of the Board of Referees (the "Board"), to have his unemployment insurance claim period antedated.
On the facts, the respondent made no express request of the Unemployment Insurance Commission (the "Commission") to antedate his claim. The umpire concluded that the Commission must have "implicitly dealt with the issue since it had to determine a commencement date for benefits and had before it claimant's application for unemployment insurance benefits ...". On this assumption, the umpire concluded that the respondent properly raised the antedating issue before the Board and, accordingly, it should have considered the issue rather than dismissing it on the ground that it had not been raised with the Commission. The umpire allowed the appeal and antedated the respondent's claim. With respect, the decision of the umpire is not supportable in law.
Our conclusion flows from section 9 of the Unemployment Insurance Act (the "Act") which deals with the question of antedating. The relevant legislative provisions read as follows:
9.(1) A benefit period begins on the Sunday of the week in which
(a) the interruption of earnings occurs, or
(b) the initial claim for benefit is made,
whichever is the later.
...
(4) Where a claimant makes an initial claim for benefit after the day when the claimant was first qualified to make the claim, it shall be regarded as having been made on an earlier day if the claimant shows that the claimant qualified to receive on the earlier day that there was good cause for the delay throughout the period commencing on the earlier day and ending on the day when the initial claim was made.
Subsection 9(4) makes it clear that the possibility of antedating a claim is dependent on two conditions precedent. First, the claimant must show that he or she is qualified to receive the benefit on a date earlier than the application. Second, the claimant must show that there was good cause for the delay between the date the initial claim was made and the date to which the claim is to be antedated. There is also the obligation to satisfy the Commission that antedating is warranted in the circumstances. It follows that the umpire's finding that the Commission must have considered the possibility of antedating the respondent's claim is without foundation. In this regard, the reasoning of Marceau J.A. in the Queen v. Harbour (1986), 26 D.L.R. (4th) 96 (F.C.A.) at 97, is binding:
A person who has the right to receive unemployment insurance benefits under the Act, because all of the substantive conditions required for the existence of that right are complied with or fulfilled, will not, of course, automatically be paid those benefits. The person has to come forward, make known his or her intention to exercise his or her right and show that he or she indeed satisfies the conditions established by the Act.
In the circumstances of this case, it is clear that the jurisdiction of the Board is in respect of decisions actually made or that should have been made by the Commission. The Board does not posses the jurisdiction to rule on a matter not raised by a claimant with the Commission. As to the jurisdiction of an umpire, it was Mahoney J.A. in Hamilton v. Canada (Attorney General) (1988), 91 N.R. 145, who observed at 145:
... what a Board of Referees, an umpire and this Court must deal with is the decision that the Commission made, not that which it might and perhaps, in an exercise of common sense, should have made.
More recently, this Court in Canada (Attorney General) v. Kolish, Court File No. A-1449-92, judgment dated February 10, 1994, not reported, reaffirmed the position that an umpire may not exercise a discretion that the legislation explicitly confers on the Commission itself.
For these reasons, the application will be allowed, the decision of the umpire dated April 30, 1993, set aside and the matter remitted to the umpire on the basis that the appeal from the decision of the Board dated February 12, 1992, be dismissed.
"J.T. Robertson"
J.A.