CUB 10996

IN THE MATTER OF the Unemployment Insurance Act, 1971;

- and -

IN THE MATTER OF an appeal to an umpire by John DAISLEY from the decision

of a Board of Referees, rendered at Hamilton, Ontario, on August 23, 1984.

DECISION ON APPEAL

MULDOON J.

At the outset of the appeal hearing in Hamilton, on July 29, 1985, counsel for the Commission stated that there would be no submission here on behalf of her client in view of the recent decision of the Federal Court of Appeal in The Attorney General of Canada v. Waldermar Albrecht, A-172-85, dated June 18, 1985.

The issue before the referees was:

The delay of 51 months, or 4 years and 3 months, is a prodigious one, and the referees unanimously disallowed the claimant's appeal and upheld the insurance officer's decision to refuse the antedating.

The claimant suffered a totally disabling heart attack on April 1, 1980, as a result of which he retired from work permanently, within a few days thereof. He accepted the advice of a personnel officer of his employer to the effect that he ought not to claim for benefits until he attained the age of sixty-five years. He subsequently learned that such advice was erroneous and made application for benefits on June 27, 1984. In accepting that initial advice from a person who could be regarded as experienced and knowledgeable by virtue of that person's office or employment, the claimant "did what a reasonable person in his situation would have done to satisfy himself as to his rights and obligations under the Act" as Mr. Justice Marceau said for the unanimous appeal division in the Albrecht case.

Now, a reasonable person is not an anxiety-ridden paranoiac who doubts or disbelieves an apparently authoritative word of advice to the point of seeking to verify that advice again and again, daily or periodically, lest the advice be erroneous. A reasonable person, being initially justified in accepting that apparently authoritative advice, naturally continues to accept it day by day unless or until its error or untrustworthiness be brought to his attention. And that exactly describes the claimant's course of conduct, which was that of a reasonable person.

In his explanation of his notice of appeal (Ex. 15, see 15-3) the claimant said he felt that the referees did not believe his story about receiving erroneous advice. However, the referees’ written decision (Ex. 10) reveals no such adverse finding in regard to his credibility. It would therefore not be an apt disposition of this appeal to refer the matter back to the board of referees for rehearing or re-determination.

The issue, in light of the subsequent Albrecht decision rendered by the Federal Court of Appeal, is now one of error in law. This board of referees unwittingly did make an error of law in applying what we now know was the wrong test of good cause for delay.

Since, pursuant to section 96 of the Act, an umpire may give the decision which the board of referees should have given, the claimant's appeal is hereby allowed and it is hereby declared that he is entitled to have his claim for benefit antedated to April 2, 1980. It follows that the referees' decision (and with it, the insurance officer's decision, of necessity) is rescinded.

Ottawa, Ontario

August 6, 1985