CUB 14318

McNair, J.:

This is an appeal where no oral hearing was requested. The claimant appeals the majority decision of the Board of Referees upholding the Insurance Officer's determination that the claimant was not entitled to have her claim for benefits antedated to July 31, 1986 as she failed to establish that she had good cause for delay throughout the whole period between July 31, 1986 and October 4, 1986 in accordance with s. 20(4) of the Unemployment Insurance Act and s. 39 of the Unemployment Insurance Regulations.

The claimant made an initial application for benefits on October 10, 1986, indicating that she would be on maternity leave for twenty weeks commencing July 30, 1986. The claimant's expected date of delivery was August 16, 1986. As a matter of fact, she prematurely delivered on July 31, 1986. On October 9, 1986 the claimant applied to antedate her initial claim to July 31, 1986 stating that she had failed to apply earlier for benefits "due to a misunderstanding regarding the procedure of obtaining my salary during maternity leave."

By notice of refusal dated November 19, 1986, the claimant was advised that her request to antedate had been refused because she had not proven good cause for the delay in making her claim.

The claimant appealed that decision to a Board of Referees which upheld the Insurance Officer's determination. The decision of the majority of the Board is as follows:

During her testimony, the claimant indicates that 7 months before the date of the birth of her baby, she asked her employer for the procedures to follow in order to obtain unemployment insurance benefits and asked that she be reminded of such procedures at the time of the baby's delivery.

She claims that at such time she was not informed that she had to fill out an application form in connection therewith.

The birth, which was due to occur on August 16th 1986 happened on July 31st, 1986. On such date or the following day, the claimant requested her husband to inquire at the hospital's office in order to obtain the necessary information regarding the procedures to follow to obtain unemployment insurance benefits.

On the first of August 1986, Mrs. Gamache supplied the claimant with a separation form. The claimant also mentioned that it was not before the end of the month of September 1986 that she could obtain the exact procedures to submit an application for benefits.

The first separation form was refused by the Commission as being a copy and a second separation form was given to the claimant on October 6th 1986 only.

We note that during the 72 days delay indicated in the observations of the Commission, the claimant relied solely on the employer and did not make the necessary steps in due time in view of obtaining unemployment insurance benefits.

We believe that the claimant was negligent and that ignorance of the law cannot be invoked as a reason for the delay which was brought in the present case.

For this reason, we reject the appeal by a Majority decision.

The minority member of the Board would have found for the claimant for reasons which read as follows:

It is the first time that the claimant applies for unemployment benefits.

She prematurely delivered a child on July 31st, 1986. This fact affects the claimant.

She received an envelope the following day, when she was still at the hospital.

Under the circumstances, she did not see her record of employment. After that, Mrs. Gamache of the Personnel Office went on vacation.

Mrs. Gamache called the claimant only at the end of September and a few days later she gave Mrs. Eldridge another copy of the record of employment.

We have to note that resident doctors are not normal employees and they don't receive full information from the employer in this matter.

Even before leaving her employment, the claimant tried to get information about unemployment insurance benefits. Unfortunately, this information was not sufficient.

Her testimony was corroborated by 2 employees of the Ste. Mary's Hospital:

Under these circumstances, I think there was good cause for delay in making the claim.

Furthermore, in my opinion, the claimant acted in good faith.

For these reasons, I would grant the appeal.

The claimant appeals the majority decision on the basis of s. 95(c) that the Board based its decision on an erroneous finding of fact which it made in a perverse or capricious manner or without regard for the material before it.

Subsection 20(4) of the Act and section 39 of the Regulations provide as follows:

Act

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.

Regulations

39. 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.

The question of what constitutes "good cause" as contemplated by s. 20(4) has been the subject of much jurisprudence pertaining to the Unemployment Insurance Act. That issue has now been settled by the Federal Court of Appeal in the decision of The Attorney-General of Canada v. Albrecht (1985), 60 N.R. 213. In that case the Court held that where a claimant's failure to file his application for benefits within the proper time limits was due to his ignorance of the law, the requirement of showing "good cause" was satisfied if the claimant could show that he did what a reasonable person in his situation would have done. The determination of whether a person acted in a reasonable manner will depend upon the particular facts in each case.

The claimant indicates in her letter of observations to the Umpire that she also relies on the ground of appeal found in s. 95(b) that the Board of Referees erred in law in making its decision or order, whether or not the error appears on the face of the record, in that the Board placed an erroneous interpretation on the requirement of showing good cause under the circumstances attendant in her particular case.

I propose to deal with the first ground of appeal, namely, that of s. 95(c) wherein the claimant alleges that the Board made an erroneous finding of fact. It should be noted in this regard that the jurisprudence clearly establishes that the claimant has a heavy burden to discharge on an appeal under this section. The umpire must be satisfied that there was no reasonable basis upon which the Board of Referees could have found as they did on the facts of the particular case. Here, the evidence indicated that the delay in filing was clearly due to a limited investigation on the part of the claimant of application procedures relevant to maternity benefits under the Unemployment Insurance Act. Strictly speaking, there was evidence on which the Board could have reasonably found as they did. The appeal on this ground must therefore fail.

However, the second ground of appeal advanced by the claimant is, in my view, a valid one. The Albrecht case authoritatively establishes that all that claimant must show is that he did what a reasonable person in similar circumstances would have done to satisfy himself of his rights and obligations under the Act. What is reasonable must be considered in relation to the capabilities of the claimant in a given situation. In this regard, I note that the claimant is well-educated and that a higher standard of "reasonable behavior" might be expected in the circumstances. In my view, however, there are other aspects of her situation which are determinative of this appeal. These include the claimant's lack of familiarity with the procedures as a first time applicant as well as her reliance upon the misinformation provided by the payroll department at St. Mary's Hospital. The claimant's position was supported by individuals from the personnel and payroll departments of the hospital. All of this is indicative of the fact, as the dissenting Board member found, that the claimant had acted reasonably in endeavouring to obtain information about her unemployment insurance benefits. The claimant had acted in good faith and as expeditiously as possible upon obtaining the correct information about her rights and obligations under the Act. The finding of the majority that the claimant was negligent and that ignorance of the law cannot be invoked as reason for delay cannot be supported in principle, following the Albrecht decision. In my opinion, the Board committed an error in law. That being so, I am entitled to invoke s. 96 of the Act and make the decision that the Board should have made in the circumstances.

Based on the totality of evidence, I am satisfied that the claimant has established that she had good cause for the delay in making her claim and that the same should be antedated.

Accordingly, the claimant's appeal is allowed.

J.C. McNair

Umpire

OTTAWA
October 2, 1987