CUB 13000A

The Commission appeals from a decision of the board of referees accepting the reasons given by the claimant for his backdating request that had been refused by the Commission (paragraph 20(4) of the Act and section 39 of the Regulations).

We should summarize the facts briefly. The claimant, who taught in a comprehensive school, was relieved of his duties temporarily without pay by a resolution of the La Vérendrye Regional School Commission on January 17, 1985. The resolution (Exhibit 4-1) informed him of the School Commission's intention to rescind his contract of employment. On June 13 of that year the employer passed a new resolution rescinding Mr. Genest's contract of employment "effective at noon, January 17, 1985" (Exhibit 5).

The dismissed employee made his claim for benefit on June 20, 1985 and requested that it be backdated to January 18, of that year on the ground that at first he had been suspended only temporarily, although this suspension was accompanied by a threat of dismissal that became reality with retroactive effect on June 13. His request for backdating also indicated that he did not know that he was entitled to benefit during his suspension and did not learn that he was dismissed until June 14, 1985 (Exhibit 6). The Commission did not accept his request for backdating. However, before appearing before the board of referees, to which he had appealed, the claimant obtained a letter from his former employer dated August 21, 1985, signed by the Director of Personnel, which stated the following facts (Exhibit 12):

The purpose of this letter is to certify that from January 17, 1985 Mr. Jean-Noel Genest was relieved of his duties as a teacher with loss of salary and that the resolution of the Executive Committee of the La Vérendrye Regional School Commission to rescind his contract of employment was not passed until June 13, 1985.

The long delay between these two events was justified and was agreed upon by the employer and the union to enable Mr. Genest to meet health specialists and show, if possible, that he was disabled in such a way that the commissioners' decision to terminate his contract should be revoked.

During this period representatives of the School Commission and STENOQ met on several occasions to provide each other with information concerning this case.

The board of referees allowed the claim to be backdated in a decision of which we should reproduce the relevant section:

Did the claimant have good cause for his delay in making his claim for benefit (Exhibit 2) dated June 20, 1985? (In accordance with sections 20(4) of the Act and 39 of the Regulations.)

Having heard Mr. Jean Alfred, representing Mr. Genest, and having examined Exhibit 12, which was filed in the record, we find that the claimant had good cause for his delay in making his claim for benefit under section 20(4) of the Act. In fact, Exhibit 12, especially the contents of its second paragraph, is in accordance with the testimony given by the claimant's representative. The reason for the continued delay is, moreover, expressed in paragraph 3 of the said Exhibit 12.

Consequently, the board of referees consisting of two members allows the appeal of the claimant and quashes the decision of the official responsible on the question in dispute.

The Commission appeals on the ground that the board of referees erred in law in assessing the cause of the claimant's delay in making his claim for benefit. Counsel for the Commission endeavoured to show that it is now well established since the decisions in Pirotte, [1977] 1 F.C. 314 and Albrecht, [1985] 1 F.C. 710, that ignorance of the law is not a sufficient excuse for a delay in making a claim for benefit unless the claimant was, inter alia, misinformed by the Commission or failed to do what any reasonable person would have done in the circumstances. He argued that in this case the claimant was not misled by a representative of the Commission and that, moreover, he took no steps to ask the Commission about his rights. In short, he argued that the claimant did not justify his request for backdating.

This reasoning strikes me as being a little too brief and it does not take account of the facts appearing in the record. I probably agree with counsel for the Commission concerning the case law relating to ignorance of the law. Moreover, at the hearing I informed the claimant unequivocally of the fundamental principle of law that ignorance of the law is no excuse for a failure to comply with a limitation period in a statute. This principle applies to all laws. However, the Federal Court of Appeal noted in Albrecht, in the case of a claimant relying on this principle to explain his delay in making a claim for benefit, that if he could show that he acted with due diligence as a reasonable person in the same situation would have acted, it must be presumed that he showed "good cause for his delay".

In the instant case we should read the reasons for the request for backdating in Exhibit 6 with care. In fact, the claimant does not allege that he was unaware of a provision of the law; he said that he did not know that he was entitled to unemployment insurance benefits and he gave an explanation for this. It is no longer a question of ignorance of the law but rather one of interpreting the resolution passed by his employer on January 17, 1985. In fact, this teacher believed that he was relieved of his duties without pay only temporarily and that the contract was not rescinded until June 23, 1985. This was a reasonable interpretation in the circumstances. Not only was the initial resolution merely temporary in nature, although an intention to rescind his contract was indicated, but in particular, as is shown by the letter dated August 21, 1985 (Exhibit 12), health specialists were consulted between January and June 1985 to determine whether the teacher was "disabled in such a way that the Commissioners' decision to terminate his contract should be revoked". During this period, as was stated by the claimant at the hearing, he felt that he could receive sickness benefits that would disqualify him to receive unemployment insurance benefits. However, he would eventually be refused these unemployment insurance benefits.

In short, it seems to me that the claimant showed good cause for his delay in filing his request for backdating and I fail to see any error of fact or law in the decision of the board of referees that would allow me to vary it in any way.

CUB 13000A

DECISION