CUB 11100
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IN THE MATTER OF the Unemployment Insurance Act, 1971;
- and -
IN THE MATTER OF an appeal to an umpire by Leslie P. SOLTICE from the decision
of a Board of Referees, rendered at Edmonton, Alberta, on November 25, 1983.
DECISION ON APPEAL
MULDOON J.
This appeal for review of the referees' decision came on for hearing at Edmonton, on May 27, 1985. Both the claimant and the Commission were represented by counsel.
The referees' unanimous decision, in full, runs thus
The facts are set out in the submission. The claimant appeared at the hearing with his representative, Mr. Herbert Schlotter.
The only question before the Board is whether the claimant is entitled to have his claim antedated to September 30, 1981. The Insurance Officer held that he is not and the claimant appealed.
The claimant's representative gave members of the Board his arguments in writing. The Board also listened to the claimant and to his representative explaining the said arguments personally. The main point of the arguments is that the claimant did not apply, not due to his "ignorance of the law" but due to the misinformation given to him by an Officer of the Commission, on which he relied. About two years ago, the claimant phoned a listed number, and asked the lady on the other side of the phone whether he is entitled to benefits. He told her that he had to retire on a disability pension at the age of 55. The lady from the Unemployment Insurance Commission replied that he would not be eligible for any benefits until he turned 65. Two years later, a friend of his who retired from the same company at the same time, told him that he applied a year and a half after he retired and got the benefits. However, when the claimant applied, he was advised that he was too late, and when he requested antedating, he was turned down, too. Again the claimant's position and the summary of arguments is annexed hereto as Exhibit 7. The Observations of the Commission to the Board, being Exhibit 6, are also attached. Having considered both, the Board came to the unanimous conclusion that the appeal should be dismissed. The claimant's representative requested to give the evidence of the claimant under oath, and when the chairman of the board told him that it is not necessary, he asked that this refusal to accept the information under oath should be noted in the decision.
The Board would dismiss the appeal of the claimant for the same reasons that the Insurance Officer dismissed them for. (1) The claimant did not file his application for benefits in writing as he should have done. A phone call is just not enough. This is quite apart from the fact that there is no proof whether the claimant made a phone call, as he does not even know the name of the person he talked to. Also, after two years human memory is often not quite reliable, and who can tell what the lady actually told him? To repeat, it was the claimant's obligation to submit an application in writing, not just make a phone call, or even appear in person at the office of the Commission. This the claimant failed to do. (2) It took the claimant two years before he went back and applied, and it is just absolutely unreasonable a period of time to take. A month, or two, but two years? On this point, the claimant insisted that he believed the lady on the telephone that he is not entitled to any benefits and that is why he did not apply till he spoke to his friend.
The only answer to that is: "ignorance of the law is not an excuse", and the onus is on the claimant to find out and to apply initially.
Appeal dismissed.
The delay of 24½ months, or 2 years and 17 days is a prodigious one, as the referees noted. This claimant received the same advice, in similar circumstances, as did the claimant in CUB 10996. That sort of misinformation from persons who can be reasonably regarded as experienced and knowledgeable in such matter because of their office or employment seems to be not uncommon. The claimant maintained, and was willing to testify under oath that he had received such advice from such a person. If he did accept that advice, as he claims, then 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 wrote for the unanimous Federal Court of Appeal in The Attorney General of Canada v. Waldermar Albrecht, A-172-85, dated June 18, 1985.
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 unless or until its error or untrustworthiness be brought to his attention. That exactly describes the claimant's course of conduct, which was that of a reasonable person. After all, the original justification does not "rust" or otherwise deteriorate merely because of the effluxion of time, prodigious as it was.
After making their respective submissions, counsel were directed to consider the cases of Martinson CUB 9958 and Serena CUB 10393, and to submit further submissions, in writing.
Even before the recent Albrecht decision, the appeal division's earlier decision in Pirotte v. U.I.C. [1977] 1 F.C. 314 could be doubted as a true expression of the law because:
(a) as Glanville Williams asserts in his Textbook of Criminal Law (Stevens & Sons, London, 1978) at page 410:
By far the most important limitation of the ignorantia juris [ignorance of the law is not an excuse] rule is that it applies only to ignorance of criminal law; and
(b) even when Parliament enacts criminal law (which this Act is not), it takes care to express that rule specifically,
as in section 19 of the Criminal Code and in section 128 of the National Defence Act, but of course Parliament has not imported the rule or even expressed it in the Unemployment Insurance Act, which refers only to showing good causes.
In their unanimous decision the referees' gave two reasons for dismissing the claimant's appeal. The second reason is the effluxion of time, the prodigious delay, but that is considered above and rejected.
The referees' other reason is that "A phone call is just not enough". The Act does not provide that a telephone enquiry can never support good cause and this reason must be characterized as an error of law.
In the passage in which the referees give the immediately above-recited reason, however they go further and express doubt about the claimant's credibility. Having declined to hear the plaintiff under oath, they say: "... there is no proof whether the claimant made a phone call, as he does not even know the name of the person he talked to". Whether he made the call and received the advice is the question, not whether he can remember the name. His affidavit sworn on April 8, 1985, with its exhibit, is to be noted. If he could remember or if he had been given the name, that would provide further support to his version of events, but that he cannot remember it, or was not told it, is only another factor to be taken into account in weighing the credibility of his version.
Both counsel have now submitted their further researched arguments and reflections on this matter, addressed, as is perfectly proper, to the Registrar to the Umpire. Again, as is perfectly proper, the claimant's counsel tendered his written submissions first, followed by those of the Commission's counsel. In her written submission, counsel for the Commission correctly states the issue and notes that the referees "had expressed some doubt that Mr. Soltice had made the telephone call or had received the information as alleged by him." If the claimant made that call and received that advice, as he swears he did in his tendered affidavit of April 8, 1985, then his conduct was reasonable and his appeal ought to be allowed. His application of October 17, 1983, to antedate his claim (Ex. 3) is an early and persuasive statement which precedes his affidavit and bolsters its credibility.
One disposition could well be to refer the matter back to the, or another board of referees with the direction that, after hearing the claimant and/or considering his affidavit, if they have no reason to doubt his veracity, which after all is pitted against no one else's, they are to allow his appeal. The Commission's counsel goes on to submit:
In view of the recent decision of the Federal Court of Appeal in Attorney General of Canada v. Albrecht, the Commission concedes that, if His Lordship is satisfied that Mr. Soltice made the telephone call to the general inquiries section of The Unemployment Insurance Commission and that he received the misinformation as alleged by him, his Appeal from the decision of the Board of Referees should be allowed.
The claimant's allegations do meet the test expressed above. What more could he place before another board of referees?
For the foregoing reasons, the claimant's appeal is allowed and the referees' decision is rescinded. This disposition carries with it the reversal of the insurance officer's refusal of the claimant's request to have his claim antedated to September 30, 1981.
Umpire
Ottawa, Ontario
September 3, 1985