(Rendered at Ottawa
Monday, February 10, 1986)
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
February 10, 1986
Docket:
A-395-85
Umpire's Decision:
CUB 10349
"TRANSLATION"
CORAM:
MARCEAU
HUGESSEN
MacGUIGAN, JJ.
IN RE s. 28 of the Federal Court Act
BETWEEN:
ATTORNEY GENERAL OF CANADA,
applicant,
- and -
DAME TONI CARON,
respondent,
- and -
JEAN-EUDES DUBE J., UMPIRE,
mis-en-cause.
REASONS FOR JUDGMENT
(Rendered at Ottawa
Monday, February 10, 1986)
MARCEAU, J.:
By this s 28 application against the decision of an umpire, the Court again has before it a case involving the rule stated in s 20(4) of the Unemployment Insurance Act, 1971 (the Act), by which a late claimant can have his initial claim for benefit treated as having been made on an earlier day if he can show "good cause for his delay". This case is not of particular interest as such, simply on the facts themselves, but the comments made on it before the board of referees and the umpire indicate that the difficulties of interpreting and understanding the idea of "good cause" which was used by Parliament as the basis for its rule have not yet all been resolved.
In its judgment in Attorney General of Canada v Waldemar Albrecht, 60 NR 213, on June 18, 1985 this Court undertook to review the analysis of this important provision of the Act regarding the possible retroactivity of a claim, to make an up to date review of the case law on the subject to date and to examine more fully the nature and content of the test by which the "good cause" to which it refers is recognized in practice. In view of the base before it, the chief concerns of the Court on that occasion was to reject a line of thinking which seemed to be gaining increasing acceptance in the decisions of the Commission and boards of referees, that ignorance of the law precluded any possibility of good cause, unless the ignorance had resulted from some wrongful act by the Commission itself or some ambiguous information given by it. In its view, such an approach was indeed contrary to the whole spirit of the Act as it deprive the provision of any real practical effect, since in all cases of delay, at least cases worthy of consideration, there was inevitably some measure of ignorance of the law. However, the Court at that time make a point of restating its complete agreement with the principle stated by it earlier in Pirotte v UIC et al, [1977] 1 FC 314, that ignorance of the law was not good cause as such.
What the instant case with its attendant circumstances suggests is that the Court should restate the two, what one might call, "warning" propositions in Albrecht, which in a sense go with each other, but this time emphasizing the second principally, if not entirely. Ignorance of the law is not as such a sufficient excuse for a claim to be made retroactive, and this is true not by virtue of some general principle, such as that contained in the common law maxim ignorantia legis neminem excusat (the origin, exact meaning and scope of which have always been somewhat mysterious), but simply because it is implicit in the rule itself as stated. While the contention that ignorance of the law excludes good cause seems difficult to reconcile with the purpose of the provision, because it would lead to a rule almost devoid of practical value, contending the opposite, that ignorance of the law is good cause as such, would be inconsistent with the provision itself because the latter would then cease to have any purpose. Since in all cases of delay there will be some measure of ignorance of the law, saying that ignorance is an excuse would amount to saying that retroactivity is automatic. Having said that, let us consider the circumstances of the case at bar.
The respondent did not submit her claim for unemployment insurance for the first time until fourteen months after she lost her job as a typist. She submitted at the same time a retroactivity claim covering the sixty-two weeks that had elapsed, and simply explained her delay as follows:
I was and am listed with various employment agencies: Kelly (Sylvana) -- Acceleration Personnel ... (now bankrupt since October (?) 1982) and Drake (Karen Martin) & Quantum. I hoped, and still hope, that I would find work, but the agencies have done nothing and some have very small numbers of requests by employers. I made no claim because I was hoping and waiting, and thought I was not entitled to do so, as I was listed with all these agencies and could have found work at any time.
The Commission and the board of referees did not regard this explanation as constituting a good cause which could be a basis for retroactivity, but the umpire concluded that it could. Referring to an opinion stated in some referee decisions, that a claimant who had reasonable grounds for thinking he was employed also had good cause not to submit a claim for benefit, he quashed the decision of the board of referees, stating that "as the claimant believed she was employed, she had good cause for delaying her claim for benefit", especially as she acted in good faith.
No lengthy commentary is necessary, and it does not matter who the umpire considered the claimant believed she was employed by, the agencies or a future employer. What the decision says is simply that the respondent’s error as to her situation and her right to receive unemployment insurance benefits together with her good faith constituted good cause under s 20(4). This is precisely the approach which must be rejected if the will of Parliament is not to be frustrated, and which has in fact been rejected in Pirotte and Albrecht. It is worth repeating here what the latter judgment said should be the applicable principle: only by demonstrating that he did what a reasonable and prudent person would have done in the same circumstances, either to clarify the situation regarding his employment or to determine his rights and obligations under the provisions of the Unemployment Insurance Act, 1971, can a claimant, who failed to make his claim at the time he ceased to be employed and to receive a salary, establish a valid excuse for his delay and have his application considered retroactively. I suppose there could be cases in which inaction and submissiveness would be understandable regardless, but I feel that the circumstances would have to be very exceptional, and anyhow, I do not think that such inaction could remain understandable when it has lasted for over fourteen months, as here.
I feel that the Court has no choice but to set aside the decision of the umpire and refer the case back to him to be decided on the basis that the respondent has not established by her explanation that she had good cause for her delay within the meaning of s 20(4) of the Act.
"Louis Marceau"
JFCC
MARCEAU, J.:
I have had the advantage of reading the reasons prepared by my brother Marceau J. Although I in no way disagree with his reasoning or conclusions, I prefer to arrive at the same result by a much more direct route.
The umpire based his decision to allow the claimant to antedate her claim for benefits by sixty-two weeks on his opinion that she believed she was employed and failed to file her claim earlier for that reason.
I have to say that this opinion of the umpire clearly does not take into account the evidence in the record.
In her initial application to antedate her claim, the claimant wrote:
"... I made no claim because I ... thought I was not entitled to do so, so I was listed with all these agencies and could have found work at any time." (Record, p 7 - emphasis added)
In the letter she submitted to the board of referees in support of her appeal, she said the same thing:
"Allow me to say again that the fact I did not file a claim for benefit immediately was due to my belief that I was not entitled to do so because I was listed with these agencies and hoped - with good reason - that as in the past I would find employment at any time." (Record, p 14 - emphasis added)
These statements, which are not in any way contradicted by anything else to the record, are quite simply inconsistent with a belief by the claimant that she was employed. Indeed, the umpire appears to recognize this when he writes, at the very beginning of his decision:
"... the claimant thought she was not entitled to benefits during the period in question, beginning on October 4, 1981, as she was listed with various employment agencies and was expecting offers of employment from one week to the next." (Record, p 43 - emphasis added)
I would conclude as does my brother Marceau J.
"James K Hugessen"
J.
2011-01-10