CUB 12995A

Muldoon J.

The claimant's application to review the referees' unanimous decision came on for hearing in Thunder Bay, Ontario on June 23, 1987. The claimant was represented by counsel, Ms. Lynn Beak, of the Kinna-Aweya Legal Clinic in Thunder Bay; and the Commission was represented by counsel, Mr. Michael Dixon, of the federal Department of Justice.

The matter in issue here arises in contemplation of subsection 20(4) of the Act and regulation 39 of the Unemployment Insurance Regulations, (Part IV: Benefit). Subsection 20(4) runs thus:

20.(4) When a claimant makes an initial claim for benefit on a day later than the day he was first qualified to make the claim and shows good cause for his delay, the claim may, subject to prescribed conditions, be regarded as having been made on a day earlier than the day on which it was actually made.

(emphasis added)

Those "prescribed conditions" are undoubtedly supplied by the regulation which was made by the Commission with the approval of the federal cabinet. Regulation 39 provides:

39. Antedating

An initial claim for benefit May be regarded as having been made on a day prior to the day on which it was actually made if the claimant proves that

(a) on the prior day he qualified, pursuant to section 17 of the Act, to receive benefits; and

(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 that claim.

(emphasis added)

Obviously it is best to make one's claim for benefits on the very first day on which one is qualified to do so. Not everyone is such an ardent, comprehending reader of this difficult-to-understand Act with its often amended, comprehension defying regulations as to know what is, or when is, the very first day on which he or she is qualified to make a claim for benefits. Many legitimate claimants are of limited educational attainments and some have a natural difficulty of language, especially the language of the Act and regulations. For many of our decent working folk the trauma of being precipitated into unemployment leaves them understandably too dazed and too depressed to move to claim benefits with the kind of alacrity which some insurance officers seem to expect. That is why Parliament enacted subsection 20(4) of the Act and no doubt why the Governor-in-Council approved regulation 39. It is significant also, in taking a balanced view of the matter, that those two provisions operate only in regard to "an initial claim for benefit". Furthermore, one rarely if ever encounters a claimant who, while wanting to receive the benefits, takes an attitude of consciously, with the knowledge that he or she has no good cause for delay, or consciously not caring that he or she has no good cause, simply bedevilling the Commission by doing nothing and larking about until the claim for benefits is finally really good-and-late. Certainly such an absurd caricature, or anything remotely like it, does not fit the claimant, Gordon A. Timbres.

There is good reason for an oral hearing before the umpire. The proceedings before the referees are not recorded and often, as here, the claimant is alone. An in-person hearing before an umpire May sometimes be necessary, if the claimant is to establish two of the three grounds of appeal set out in section 95 of the Act. Thus, if perchance some absolutely rare board of referees overtly fails to observe a principle of natural justice, it will hardly note that factor in its written decision, and so, how could an umpire ever be apprised of it without the claimant's statement to that effect before the umpire? Equally, if a board of referees based its decision or order on an erroneous finding of fact which it made perversely or capriciously, or, more important on review, without regard for the material before it, how could an umpire be apprised of the non-documentary material before the board (absent a transcript) without being told of it through the claimant's statement at an oral hearing? Admittedly, the final ground for review expressed in paragraph 95(b) of the Act, (error of law, whether or not it appears on the face of the record), generally does not exact a hearing by an umpire so much as the other two grounds in order to be efficacious.

In the present instance the claimant's counsel tendered the claimant's sworn affidavit to be received in this proceeding. Counsel for the Commission quite naturally objected, because the umpire's function is to review the conduct of the referees in the instant case and not to be receiving and weighing the material which constitutes the "evidence" in the case. That the claimant was willing to pledge his oath on what was presented to the referees quite helpfully indicates his seriousness in the premises, but will not generate further weightiness to his deposition. Indeed his deposition must be viewed with scrupulous caution since it was prepared with professional help and has lost all the credible innocence of having sprung spontaneously and early-on from him. Of course early spontaneity counts for nothing on the lips of an accomplished liar, just as professional help counts for nothing on the lips (or pen) of a profoundly honest person. After all, the claimant is entitled to give his own, even unsworn, account of what he put before the referees and he ought not to be blocked in that regard by reason of making such statement in writing rather than orally. Not everyone is verbally articulate, but some such are still honest. So, with some sympathy for Commission counsel's objection, and with full cognizance of the caution to be exercised in regard to that affidavit, this umpire received it for such weight as May be tentatively attributed to it.

The facts are fairly straightforward. As a result of a workplace accident on May 13, 1983, the claimant received temporary total compensation benefits from the Workers Compensation Board during the period of May 17, 1983 to January 22, 1985. The claimant's last day of employment was August 31, 1983, on which date he embarked on early retirement.

Almost, but not quite, one year after the claimant had ceased to receive workers compensation benefits, that is, on January 15, 1986, he submitted an application for unemployment insurance benefits. The application was accompanied by a supplied form of "Application to Antedate Initial Claim". The form bears a notation "There must be good cause for every day of delay in making this application. - Give full details.", and then provides eight lines in which to give full details. Here is what the claimant wrote there on exhibit 4, on "Jan 15/85" [sic], and exactly as he wrote it:

I WAS Told by "FRONT DESK" U.I.C. DEPT. (Thunder Bay Ont) ThAT U.I.C. hAd TO be "Applied FOR" AFTeR my DISCHARgE FROM GulF OR with IN Twelves months in ORDeR TO CLAIM FOR BENIFets. I WAS COLLECTING TEMPARY BENIFITS FROM W.C.B. AT THIS TIMe, (So I Did noT Apply) THINKING I Could noT Receive ANY BeniFITS beCAUSE OF WHAT I WAS Told.

On February 5, 1986 the Commission's insurance agent wrote (ex. 4), and on February 7 had typed (ex. 6) a notice of refusal, which runs:

On the information which has been presented with your claim for benefit, you are not entitled to have your claim for benefit antedated to 24 Feb. 85 as you have not established that throughout the whole period between 24 Feb. 85 and 11 Jan. 86 you had good cause for delay in making your claim as required by Subsection 20(4) of the Unemployment Insurance Act, 1971, and Section 39 of the Unemployment Insurance Regulations.

If you have any information that you believe would cause us to change our decision, please let us know at once. Even if you have no further information you have the right to appeal this decision to a Board of Referees. To do so, please follow the enclosed instructions.

The above notice must have given the impression to the claimant that he was being characterized as a slacker, because his notice of appeal sets out his resumé, and his employment history along with an assertion of his then current search for employment. When he appeared before the referees, the claimant presented them with typed documents, thereupon entered as exhibits 9 and 10. The latter exhibit sets out "job search techniques", but it is exhibit 9 which is material to the issues here. It recites the following:

Board of Referee's

After my discharge from Gulf Can. Ltd. Sept. 1983 I went to file a claim for my UIC benefits at Employment and Immigration Canada Office in Thunder Bay, Ontario. The first floor receptionist told me I could not file a claim for UIC benefits because I was receiving Temporary Disability Payments from Worker's Compensation Board, and that I could not receive both benefits. With that information, I accepted her authority and left. Being misinformed an unfortunate situation has arisen, causing a time loss regarding my UIC benefits. On Jan. 14/86 I attended a Thunder Bay Injured Workers meeting at Con College, room 183, and received sufficient information about my rights and UIC benefits in which I was entitled to, such as "the two year claus", which the UIC Commission should of advised me of.

The next day I saw Debbie a UIC counsellor and filed a claim for UIC benefits. Debbie was most helpful, later I contacted L. Coulter who was very supportive.

Sincerely,
Gordon A. Timbres

The relevant portions of the referees' unanimous written decision (exhibit 11) run thus:

ISSUE INVOLVED:

Sec. of the Act Sec. 20(4) and Sec. 39 of the Regulations.

RELEVANT FACTS:

Claimant supplied exhibits 9 & 10 to be included in the file. Claimant said that he had reported to the commission while on W.C.B. claim and was told that he could not draw benefits while on claim, stated he was not informed to apply once he was off the claim.

The claimant had not been on claim before and felt he was required to wait a year before applying.

REASONING & DECISION:

Claimant was unaware of the [sic] his responsibility to file his claim once his W.C.B. claim was finalized.

Claimant has not proven that throughout the period of Feb. 24/85 to Jan. 11/86 he had good cause for the delay in filing his claim.

It is the unanimous decision of the Board that the appeal be dismissed.

Now this is a remarkable decision. The "Relevant Facts", apparently found on the claimant's accepted credibility, as recited therein, and the first sentence of the "Reasoning & Decision" tend strongly to support a decision quite the contrary to that actually made by the referees. What the referees stated and what they seem to understand from what they stated are obviously different. To that extent, the decision can be clearly found to a perversely or capriciously erroneous finding of facts, or at very least, disregard for the material objectively before them. Further, the referees erred in law by applying a rather too narrow test of what constitutes "good cause".

One must keep in mind not only the referees' findings of facts about the claimant's seeking and obtaining of advice from an employee at the Commission's office in Thunder Bay, but also their having made no finding whatever against the claimant's credibility. One hardly needs to resort to the claimant's recently tendered affidavit to determine what happened and to appreciate that the partial findings expressed by the referees objectively support the claimant's version, no matter what the referees subjectively thought they were finding.

It is clear from exhibit 4 (that earliest, spontaneously ingenuous statement) and exhibit 9, that the claimant was advised that he could not receive workers compensation benefits and unemployment insurance benefits simultaneously and that he could not, in any event, claim unemployment insurance benefits except within twelve months after his discharge from his employment. The latterly received affidavit is quite consistent with the earlier statements. He naturally accepted the advice which he received from a person who, by comparison with himself, and indeed pre-eminently, ought to know what she was advising. That is surely the reaction and attitude of a reasonable person. Now, as exhibit 6 beyond doubt demonstrates, the claimant continued to receive workers compensation benefits up until January 22, 1985, or, until long after the expiry of twelve months after his discharge from his employment.

One can see how the referees truly got the facts objectively right, to wit: "Claimant was unaware of the [sic] his responsibility to file his claim once his W.C.B. claim was finalized", but then they perversely concluded that the advice given by the Commission's receptionist coupled by the passage of the 12 months did not constitute proof of good cause for his delay. Indeed, it is obvious that as of January 22, 1985, the claimant could not be then regarded as "delaying" his application: he then justifiably believed he no longer had any right to make an application. His belief was justified by the advice he had received from a person whom he was entirely justified in believing, a staff member of the Commission. Applying a test of "good cause" which is too narrow, as the referees did, constitutes an error of law. The claimant had and proved good cause for his delay in making his initial claim for benefits.

It May be said that any initial "good cause" must have been eroded away by the length of the period of time for which antedating is sought. Here it is less than one year according to exhibits 1 and 6. In the case of Daisley CUB 10996, the delay was four years and three months. Once a good cause is established, which permeates every day of the delay, it matters (generally) nothing that the delay is prodigious. The "good cause" does not rust. Here is how this notion was put in the umpire's decision in Daisley CUB 10996:

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.

The above cited CUB 10996 is a close match, being directly on point in regard to the present case.

Another case which is instructive in circumstances such as these is Martinson CUB 9958. There the Commission launched a "Section 28" application pursuant to the Federal Court Act, but withdrew its application before the Federal Court of Appeal could hear it. See also Attorney General of Canada v. Julien Gauthier (A-1789-83) in which the Federal Court of Appeal upheld the Chief Umpire in CUB 8718. These cases, together with the seminal decision of that same Court of Appeal in Attorney General of Canada v. Waldemar Albrecht [1985] 1 F.C. 710, demonstrate that the Commission ought not to be officiously rigourous in blocking decent folk from antedating by regarding "good cause" as a hedge of thorns to guard the Commission from paying quite unexceptionable if otherwise timely claims for benefits. That rigour in denying applications is not manifested or justified by the legislation or by the very highest judicial interpretation of it. After all, if benefits be legitimately payable upon an early application, they are not less legitimate upon a tardy application which does not thereby prejudice the Commission, if the claim be otherwise objectively documentable. Nothing herein should be interpreted to encourage knowingly wilful tardiness, or a devil-may-care attitude toward applying reasonably promptly for unemployment insurance benefits.

In the present case the referees' decision evinces error in fact finding because of disregard for the material, both documentary and oral, which was before them. Their decision also evinces an error of law, whether or not on the face of the record, in applying a wrong test of good cause for delay. This claimant proved good cause. Here then, in pursuance of section 96 of the Act, is 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 initial claim for benefits antedated to February 24, 1985 (if not January 22, 1985); and the insurance officer's decision is rescinded. The referees' decision herein is rescinded.

F.C. Muldoon

Umpire

Ottawa, Ontario
July 16, 1987