(Delivered from the Bench at Toronto, Ontario
on Thursday, April 22, 1993)
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
April 22, 1993
Docket:
A-549-92
Umpire's Decision:
CUB 20934
CORAM:
THE HONOURABLE MR. JUSTICE STONE
THE HONOURABLE MR. JUSTICE LINDEN
THE HONOURABLE MR. JUSTICE LÉTOURNEAU
BETWEEN:
THE ATTORNEY GENERAL OF CANADA,
applicant,
- and -
IAN W. SMITH,
respondent.
REASONS FOR JUDGEMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Thursday, April 22, 1993)
STONE, J.A.:
We are all of the opinion that this application must succeed and that the Umpire's decision of March 3, 1992 must be set aside.
The respondent, Mr. Smith, was not present at the hearing of this application but his written submissions dated April 16, 1993 were filed with the Court and considered.
The only reason advanced by Mr. Smith for the delay in making his claim for unemployment insurance benefits was that from the time he ended his former employment to the time he applied some six months later he was actively and conscientiously engaged in seeking new employment. Clearly, his claim for benefits was not made "on a date later than the day he was first qualified to make the claim" within the meaning of subsection 9(4) of the Unemployment Insurance Act, R.S.C. 1985, c. U-1 1. In such circumstances, by virtue of that subsection and section 39 of the Unemployment Insurance Regulations 2, he cannot have his claim antedated unless it is seen that he had "good cause" for the delay in making his claim.
It is now clear that in any particular case an applicant for antedating a claim for benefits must demonstrate "good cause" by showing that "he did what a reasonable and prudent person would have done in the same circumstances": (Canada) Attorney General v. Caron (1986), 69 N.R. 132 (FCA), per Marceau J.A. at page 134. See also Attorney General of Canada v. Albrecht, [1985] 1 F.C. 710 (FCA). While in Caron, Marceau J.A. in obiter envisaged circumstances "in which inaction and submissiveness would be understandable" under some circumstances, he also observed that "the circumstances would have to be very exceptional". Marceau J.A. did not attempt to spell out which sort of circumstances he would regard as "very exceptional". In the present case, Mr. Smith made no attempt throughout the six month period to submit a claim, and there appears to have been no circumstance which prevented him from doing so or which rendered exceptionally difficult the making of a claim at the outset rather than later on 3. True, the respondent consciously opted to seek new employment, rather than throw himself on the unemployment insurance system which he may have had a perfect right to do.
It is conceded that Mr. Smith deserves much credit for the attitude he adopted and the steps he took to avoid the making of a claim. Nonetheless, that attitude, however laudatory, does not furnish "good cause".
We reach this conclusion with some reluctance for, like the Umpire, we are satisfied that Mr. Smith acted throughout in good faith. The delay in making the claim was induced by the best of possible motives on his part - that of seeking new employment rather than falling back on unemployment insurance benefits. Such motives, pure as they were, do not on the present state of the law allow him to antedate his claim on the ground that he had "good cause" for the delay in making it.
The section 28 application will be allowed, the decision of the Umpire dated March 3, 1992 will be referred back to the Umpire on the basis that the appeal from the decision of the Board of Referees dated December 21, 1989 must be dismissed.
"A.J. Stone"
Judge
a) on the prior day he qualified, pursuant to section 17 of the Act, to receive benefits; and2011-01-10
b) throughout the whole period between that prior day and the day he made the claim he had good cause for the delay in making the claim