CUB 14326

JEROME, A.C.J.:

This matter came on for hearing at Kitchener, Ontario, on August 18, 1987. The claimant appeals the unanimous Decision of the Board of Referees upholding the Insurance Officer's determination that the claimant did not have good cause for delay to justify antedating his claim from September 14 to June 15, 1986 and that he had insufficient weeks of employment in his qualifying period to entitle him to benefits.

The claimant was employed as a welder by Biscane Tool & Die Manufacturers, Inc. from May 26 to June 15, 1986, when he was laid off. Before that he had been employed with different employers for eight weeks ending August 9, 1985, eight weeks ending December 21, 1985 and three weeks ending May 24, 1986. Had he filed his claim in June, 1986, he would therefore have had sufficient insurable employment in the preceding 52 weeks to qualify for benefits. The claimant was laid off following a serious car accident which injured his back. He was also suffering from the flu at the time. He did not file a claim for benefits until September 19, 1986. The claimant initially explained this delay in filing by stating that he had moved. The application form had been mailed to him at his old address by his employer and was subsequently returned to the company. He had to telephone them and ask that it be mailed to the new address. He didn't receive it until September.

The Commission determined that good cause for delay had not been shown. The antedate was refused and the claimant was found to have insufficient weeks of insurable employment between September 15, 1985 and September 13, 1986 to qualify for benefits.

The claimant appealed this Decision to the Board of Referees. He submitted a note from his doctor indicating that the back injury had caused him pain all summer. The claimant added that the injury and the flu prevented him from going out at all between June 15 and September 13. This was supported by a statement from a witness who knows the claimant. Mr. Smith was not aware that he could send someone else to pick up his forms.

The Board found that "the claimant has not proven that he was incapable of notifying the Commission by a personal appearance, by telephone or by the assistance of his wife or friend". Therefore, they agreed there was no good cause for the delay and dismissed the appeal.

The claimant appeals this Decision under SS. 95(b) and (c) of the Act. He made some additional arguments before me: that he did not know he could qualify for unemployment insurance if he was sick and that neither he nor his wife were aware that one could phone in a request for benefits. He states he had no one to ask for this information and that, in any case, he had no telephone at the time.

The principle behind the antedating provisions of the Act is that Parliament has no interest in preventing people on purely technical grounds, from receiving benefits to which they are otherwise legitimately entitled. A claimant who has good cause for his delay in filing may, by S. 20(4), be deemed to have filed his claim at an earlier date. Since the Federal Court of Appeal Decision in Attorney General of Canada v. Albrecht, [1985] 1 F.C. 710, the test for good cause for delay is whether the claimant has done what a reasonable person in his situation would have done to satisfy himself as to his rights and obligations under the Act. The emphasis is on the unique circumstances of each claimant's case. Thus, in a number of Decisions, Umpires have held that claimants who are unfamiliar with the unemployment insurance system, who are isolated from sources of information about it and who are unaware that sickness benefits can be obtained, May have good cause for a reasonable delay in filing their claims. See, for example, CUBs 12027, 14019, 13378, 12762 and 12454. It appears to me that this is just such a case. In addition to his illness, his lack of information, and his limited means of communication, it is apparent from Mr. Smith's correspondence on file that his literacy is extremely limited. In the special circumstances of this case, I find that it would not be reasonable to expect Mr. Smith to contact the Commission before he did.

The Board reached a different conclusion because they failed to apply this test. Their finding was that Mr. Smith had not proven that he was incapable of contacting the commission That is not the test laid down by the court of Appeal. All Mr. Smith had to show was that he acted reasonably for a claimant in his situation. In applying the wrong test, the Board has made an error of law.

I will therefore allow this appeal and order that the claimant be allowed to antedate his claim under s. 20(4) of the Act to June 15, 1986.

James A. Jerome

CHIEF UMPIRE

OTTAWA
October 8, 1987