IN THE MATTER OF the UNEMPLOYMENT INSURANCE ACT, 1971
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IN THE MATTER OF a claim for benefit by
WALDEMAR ALBRECHT
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IN THE MATTER OF an appeal to an Umpire by the
claimant from a decision of the Board of Referees
given at Mississauga, Ontario on March 2, 1983.
CORRESPONDING FEDERAL COURT DECISION: A-172-85
REED. J.
This is an appeal from a decision of a Board of Referees denying the claimant’s request that his claim be antedated from December 18, 1982 to August 1, 1982.
The Board accepted the claimant’s evidence that he delayed filing a claim for benefits because the company, his ex-employer, Syntex Inc., advised him not to do so until his severance pay was all used up. The company advised the claimant that at that time it would send him his Record of Employment and he should then apply for benefits. The Commission’s submission to the Board of Referees in this regard states:
The employer (Exhibit 9) accepted blame in the non-issuance of the Record of Employment and accepts that the client was misinformed.
The Board of Referees also referred to the fact that the claimant had relied on information received from a relocation agency with respect to the filing of his revised claim. The claimant had been referred to this agency by his ex-employer so that it might assist him in finding a new job.
The claimant’s description of what occurred, as expressed in a letter on file dated May 28, 1983, is:
Not ever being faced with this problem (unemployment] in thirty-three years of employment and never having filed any claims, I did not have the expertise of either my employer or councellors [sic] in this area and thus under these extenuating circumstances followed their instructions.
The employment insurance officer who denied the claimant’s request for an antedate wrote:
Antedate to 1 August 1982 denied. Good cause for delay not shown. Ignorance not good cause.
My understanding of the applicable law, as I have noted elsewhere, for example in the Johnston case1, is that the circumstances in which the principle ignorance of the law is applicable, must be distinguished from circumstances in which delay is caused by misrepresentations of a third party made to the claimant. In my view, in order to qualify as good cause, the misrepresentations must have been made by a person on whom the claimant could reasonably expect to rely. It is, obviously, not sufficient for the claimant to simply neglect to make enquiries or to rely on casual conversation with co-workers. In this regard, I think the Commission Bulletin ED 21, Number 3 referred to in the Johnston case, supra, was accurate.
The statutory requirement of section 20(4) of the Unemployment Insurance Act, 1971, R.S.C. 1970-71-72, c. 48, as amended and Regulation 39 requires a claimant to show good cause for delay. In determining whether this test has been met, no hirer conduct should be expected of a claimant than would be expected of a reasonable person. A reasonable person who made enquiries of an individual he or she had every reason to expect to be knowledgeable in the field, such as a personnel director of a company or a relocation counsellor (as in the present case) would not consider it necessary to seek information directly from the Commission. The advisers in question hold themselves out as knowledgeable in the field. As I have said elsewhere, I can see no difference between the effect on a claimant of a misrepresentation by such a person and of a misrepresentation by an officer of the Commission. And it is to the claimant’s conduct that the requirement of showing good cause for delay is directed.
A description of good cause was set out by the Court of Appeal on October 9, 1984, in the reasons of Mr. Justice Hugessen in Gauthier (A-1789-83). That decision expressed the view that good cause would include:
... circumstances in which it is reasonable for a claimant consciously to delay making a claim. The courts should not impose artificial impediments of laudable restraint on the part of a claimant who reasonably delays making a claim for benefits.
Accordingly, the claimant’s appeal is allowed and his claim is antedated to August 1, 1982.
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Umpire
OTTAWA, Ontario
January 28, 1985