CUB 11098
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
November 10, 1986
Docket:
A-757-85
Umpire's Decision:
CUB 11098
CORAM :
THE CHIEF JUSTICE
HEALD J.
HUGESSEN J.
BETWEEN :
THE ATTORNEY GENERAL OF CANADA,
applicant,
-and-
DAVID KACHMAN,
respondent.
Heard at Saskatoon on Friday, October 24, 1986.
REASONS FOR JUDGMENT
(Delivered from the bench at Ottawa,
on Monday, November 10, 1986.)
THE CHIEF JUSTICE:
This is an application under section 28 of the Federal Court Act to review and set aside as erroneous in law the decision of an umpire on an appeal under section 95 of the Unemployment Insurance Act, 1971. That decision allowed an appeal by the respondent from a decision of a Board of Referees which had confirmed the refusal by an insurance officer of the respondent's claim for unemployment insurance benefit.
The respondent left his employment as a bakery delivery man at the end of July, 1984, and on August 1st, 1984, filed a claim for benefit. A benefit period appears to have been established for him commencing on or about August 5th, 1984. By notices dated August 24th he was informed that he was disqualified to receive benefit for six weeks from August 5th for having voluntarily left his employment without just cause and further that he was disentitled to benefits from that date under paragraph 25(a) and section 36 of the Act. The disentitlement was removed by a notice dated September 12th, 1984.
The decision of the insurance officer denying the respondent's claim was dated October 22nd, 1984. It read as follows:
Pursuant to subsection 55(4) of the Act you are not entitled to benefit because you did not make your claim for benefit (by not returning your Claimant's Report) for the week 12 August 1984 within the time prescribed by Regulation 34(1). In fact, your claim for benefit was made on 23 Sept/84 when it should have been made not later than 15 Sept/84. Consequently, you are not entitled to benefit for the period from 12 August to 23 September 1984.
In a letter dated October 25th, 1984, (identified as Exhibit 13), by which he asserted an appeal from the decision, the respondent said inter alia:
The reason I did not complete my claim for benefits for the week of August 12th, 1984 until September 23rd, 1984 was due to the fact that I had previously been advised by you on August 24th, 1984 that as of August 5th, 1984 I was disqualified for six weeks of benefits due to the fact that I had quit my job.
As soon as I received your letter of September 21st [sic], 1984 stating that this disentitlement had been lifted, I immediately sent in my claim report. I was not aware, nor does it make any sense to me to send in a claim report when I was on a six week penalty.
Some further elucidation of the facts is found in the following passage from the Commission's observation to the Board of Referees:
When David Kachman's claim was originally adjudicated, a six week of disqualification for voluntary separation and an indefinite disentitlement were imposed (Exhibit 4 and 5). The disentitlement was later removed entirely (Exhibit 6). Both the Notice of Disqualification and the Notice of Disentitlement advise the claimant to send in his claimant report cards. The claimant was sent these notices 24 August 1984. He failed to mail his report card until 23 September 1984 (Exhibit 7).
A letter was sent to David Kachman (Exhibit 8) informing him that his report card beginning 12 August 1984 had been received too late for processing.
Unemployment Insurance Regulation 34(1) states: "Subject to subsection (2), a claim for benefit for a week of unemployment in a benefit period made by a claimant shall be made within three weeks of the week for which benefit is claimed." This had not been done by David Kachman.
On 10 October 1984, the Yorkton Canada Employment Centre received an application to Back-date Claim (Exhibit 9). At that time, David Kachman requested that his claim for benefits commence 30 June 1984. The back-date application was considered only as of 12 August 1984, the first week of the report card David Kachman failed to return on time. David Kachman worked until 31 July 1984. Due to his earnings in his last week of work, the earliest his claim could commence was 05 August 1984 and his claim was established as of that date. As a result of failing to submit his claimant's report on time, a disentitlement was imposed from 12 August 1984 to 22 September 1984 (Exhibit 12) as David Kachman returned his report card on 23 September 1984 (Exhibit 7).
On the facts cited one may wonder what basis there was for imposing a disentitlement in respect of the period from September 12th to September 22nd, 1984, the disentitlement imposed on August 25th having been removed on September 12th.
The decision of the Board of Referees was as follows:
The Act states that a claim for benefit for a week of unemployment in a benefit period made by a claimant shall be made within three weeks of the week for which benefit is claimed.
The claimant had not been sending in his report cards because as he says in Exhibit 13, he had been disqualified from receipt of benefits for six weeks. However, in Exhibit 4 the notice of disqualification clearly states that the claimant must prove that benefit would otherwise be payable during the period. It goes on to say that the report forms must be completed and mailed for each week of disqualification.
It was the claimant's responsibility to continue to file his report cards. He had been advised to do so but did not. The Board agrees that according to the Act, the claimant did not apply for benefits within the prescribed time and therefore, is not eligible for benefits.
The Board agrees with the decision of the Insurance Agent and dismisses the appeal.
The respondent having thereafter appealed to the umpire the applicant made observation to the umpire, saying:
...The Board was asked to consider whether a claim for benefit was made pursuant to Sec. 55(4) and Regulation 34(1). In the week of July 29-August 4, 1984, a two week report card for July 29-August 11th, 1984 and a one week report card for August 12-18th were sent to the claimant. The two week card covering July 29-August 11th, 1984 was received and processed in the week of August 19-25th. The one week report card for August 12-18th was received on September 23, 1984, six weeks after the week for which benefit was claimed. The Board was correct in deciding that the claimant had not made a claim for benefit within the time prescribed in Regulation 34(1)....
On these facts one may again wonder what basis there was for imposing disentitlement for the period from September 12th, 1984 to September 23rd, 1984. Nothing in the facts as stated appears to support it.
The basis of the umpire's decision is in the following passage from his reasons:
I think it was not unreasonable for the claimant to have concluded that he did not need to return the reporting cards during this period, considering that he had been both disqualified from receiving benefits for six weeks pursuant to section 43 of the Act, and held to be disentitled for non-availability for work pursuant to paragraph 25(a) of the Act. I am not satisfied that he was required by sub-section 34(1) of the Regulations to return the reporting cards under these circumstances. That subsection says that a claim should be made "within three weeks of the week for which benefit is claimed". The claimant here did not, and could not, claim benefits for the period from August 1st to September 12th as he was doubly disabled from doing so. It is true that in the form which it uses for the "Notice of Disqualification" the Commission tells claimants that "notwithstanding the disqualification they must complete and mail their report forms for each week of the disqualification". The only authority for this to which counsel for the Commission could refer me was subsection 43(1) of the Act which says that the disqualification shall be for such weeks not exceeding six "for which benefit would otherwise be payable as are determined by the Commission". It is no doubt an administrative convenience for the Commission to have the report cards so that it can ascertain whether, apart from the disqualification, the claimant would have been entitled. But howsoever convenient it may be for the Commission to receive these cards, subsection 43(1) does not anywhere say that their filing is mandatory during periods of disqualification and one cannot infer from that subsection such a requirement so as to reject claims for benefits made after the disqualification is over.
Counsel for the Commission referred me to no basis for saying that a claimant must file report cards during a period of disentitlement, nor does the form of "Notice of Disentitlement" employed by the Commission indicate that the return of such cards is mandatory. It only indicates that it would be in the interest of the claimant in case he should appeal his disentitlement, because, if successful in his appeal he could then effectively establish his entitlement to benefits during the weeks he had returned report cards.
It appears to me that both the disqualification and the disentitlement of the claimant in this case ended about September 12th. He returned the report card on September 23rd, which is within three weeks of the period for which he was entitled to claim for benefits as contemplated by subsection 34(1) of the Regulations. It may be that the card he used referred to the period commencing August 12th as that is probably the only card that had been provided to him by the Commission. But that is an administrative problem which surely can be solved by the card being appropriately amended.
It therefore appears to me that the Board of Referees erred in law in finding that the Act and the Regulations required the report card to be filed within three weeks of August 12th. I am therefore setting aside the decision of the Board of Referees and allowing the appeal.
As the umpire has proceeded on the basis that the respondent was disqualified and disentitled up to September 12th, 1984, it appears that the only remaining period involved in the decision is that of September 12th to September 23rd, and it seems clear that the three-week period allowed by Regulation 34(1) in respect to that period had not expired when on September 23rd the respondent sent in what the umpire found was probably the only report card which the Commission had provided. The record of the matter compiled and forwarded by the Commission to the Board and to the umpire does not include that or any other report card.
The applicant's attack on the umpire's decision was based on subsections 43(1) and 54(1) of the Act and in particular on the wording "for which benefit would otherwise be payable" in subsection 43(1). These provisions read:
43. (1) Where a claimant is disqualified under section 40 or 41 from receiving benefits, the disqualification shall be for such weeks following his waiting period, not exceeding six, for which benefit would otherwise be payable as are determined by the Commission.
54. (1) No person is entitled to any benefit for a week of unemployment in a benefit period that has been established for him, until he makes a claim for benefit for that week in accordance with section 55 and the regulations and proves that
(a) he meets the requirements entitling him to receive benefit; and
(b) no circumstances or conditions exist that have the effect of disentitling or disqualifying him from receiving benefit.
The submission, as I understand it, was that the effect of these provisions was to require the respondent not only to prove at some point that he was unemployed and available for work in each week of the six weeks for which he had been disqualified for benefit, even though he had accepted the disqualification and did not appeal therefrom, but to prove such facts weekly by filing a claim for benefit on a form provided by the Commission, and this even though because of the disqualification he no longer expected or could expect such a claim to be accepted. It is quite correct that the notice of disqualification expressly warned the respondent to send in claims for each of the weeks of disqualification. It is not inconceivable that for each claimant to do so would help the Commission to determine whether the claimant was otherwise qualified to receive benefit and whether the particular week was to be one of the weeks of disqualification. But, in my opinion, it is not a requirement that can be found in or read into subsection 43(1) or subsection 54(1) or section 55 or any of the other provisions of the Act or the Regulations to which the Court was referred. Indeed, such an interpretation would seem rather out of harmony with subsection 54(2) which provides that
54. (2) Upon receiving a claim for benefit, the Commission shall decide whether or not benefit is payable to the claimant for that week and notify him of its decision.
a procedure that seems superfluous when the person seeking benefit has already been told he is disqualified and will not receive it.
Under subsection 43(1) disqualification is for weeks for which benefit would otherwise be payable. It will thus be necessary for a claimant to satisfy the Commission at some point that he was otherwise eligible or would have been eligible for benefit if he had not been disqualified.
That, however, is not the basis of the insurance officer's refusal. Its basis is the failure to file a claim for benefit for the weeks of disentitlement and disqualification and to do so within the time prescribed by subsection 34(1) of the Regulations for filing a claim for benefit. Subsection 54(1) is a negative provision which restricts the substantive rights to benefit conferred by subsection 17(1) and section 19 of the Act. It denies a claimant's right to benefit for a week of unemployment until he makes a claim for benefit for that week and proves that he is entitled to benefit and is not disqualified. It neither says nor implies that a claimant who is disqualified must nevertheless make a claim for benefit which would be foredoomed to failure because he simply could not prove that he was not disqualified. Subsection 34(1) of the Regulations does nothing more than prescribe a time limit for making a claim for benefit for a week.
I agree with the view of the learned umpire that the legislation does not require that a claim for benefit be made for a week for which an applicant for benefit has been disqualified or disentitled, and in my opinion his decision is not based on any error of law.
I would dismiss the application.
(sgd.) A.L. Thurlow
C.J.
"I concur."
Darrel V. Heald J.F.C.C."
"I concur."
James K. Hugessen J."
2011-01-10