CUB 14813

The claimant appeals a decision of the Board of Referees which refused to allow him to antedate his claim from August 1, 1986, back to March 3, 1986. The facts which appear from the file are as follows. The claimant was laid off on September 30, 1985. He began receiving unemployment insurance benefits. He found employment with another employer on November 25, 1985 and worked at it until February 28, 1986. He telephoned the Unemployment Insurance Commission to ask about his eligibility for unemployment insurance benefits as of the February 1986 date. He received information that he was not entitled to any benefits unless he had had 20 or 22 weeks of continuous employment immediately prior to filing a claim. Since his immediately preceding employment had only lasted from November 25, 1985 to February 28, 1986, this condition was not met. The following August, in conversation with someone, he was advised that the view he had been given of his entitlements might be erroneous. Thus, he filed an application for benefits and a request for a backdating.

The claimant appealed the Commission's refusal to antedate to a Board of Referees. On November 7, 1986, a hearing was held with respect to that appeal. The claimant's notice of that hearing was not received by him until November 11, 1986. The November 7th hearing resulted in the Board dismissing the claimant's appeal. When it became known that the claimant had not received notice of the hearing in order to enable him to attend, a new hearing was held (on December 2, 1986) by the same panel. The panel gave the same decision that it had given previously. It dismissed the claimant's appeal. The crucial part of that decision reads:

The Board unanimously finds that the appellant's reasons for delaying his application are not sufficient to allow the backdating of his application to February 28, 1986. The Board also did not find that the appellant had just cause for his delay in applying for benefits.

Section 94(2) of the Unemployment Insurance Act requires Boards of Referees to include in their decisions, statements of their findings of fact material to the decision. There is no such finding in this decision. I do not know whether the Board simply did not believe the claimant, or whether they believed him, but decided that the facts as explained by him did not constitute good cause. The Commission's position is that the claimant was not sufficiently precise in the questions he put when making inquiries of the Commission in February, 1986, and that the wrong impression he was left with was of his own making. I quote from the observations of the Commission to the Board:

... If he was really misinformed, it is of course regrettable but obviously he did not ask the right questions, that is, "Could I receive any benefit on the claim I made in October 1985?" He would have certainly received an affirmative reply, to which he did get when he came to the North York CEC on 1 August, 1986. The claimant has been on claim previously so he is fully aware of his rights to file for Unemployment Insurance benefits. In Exhibit #7 the claimant confirmed that he asked a general question as to how many weeks one required to qualify and therefore the Esquire Clerk gave him a general answer. The claimant thinks he was told 20-22 weeks. He is also not sure if this is the information he received. Neither, can he identify the individual who gave him this information (Exhibit #7).

Given the fact the claimant cannot identify the individual or recall the particular context of his enquiry nor the reply he received, the claimant has failed to prove that he was misinformed (FCA - 149884).

The fact that the Board did not set out the material facts on which it based its decision, and the fact that it had already rendered a decision against the claimant before hearing him, leads to a conclusion that there was a failure of natural justice in this case. A different panel should have been struck for the rehearing. Having the same panel rehear the case, after it has already rendered a decision, leads to an apprehension of bias. The requirements of subsection 95(a) of the Act not having been met, I will exercise the authority granted to me under section 96 and render the decision in place of the Board.

The question to be asked is whether the claimant acted as a reasonable person would have, in his position. In CUB 11692A, the Associate Chief Justice held that the question to be answered was whether:

... the claimant's explanation is credible, and if so, whether it provides an acceptable reason for failing to file the cards in the prescribed manner. If so, the discretion to allow ante-dating ought to work in the claimant's favour...

I have no doubt that the claimant's evidence in this case is credible. I have no doubt that he phoned the Commission seeking information and the response he got led him to believe he was ineligible for benefits. I note also that he was not familiar with the system. Exhibit 4 indicates that he had paid premiums for 25 years, but his only claim was that filed in the fall of 1985. The claimant described his telephone enquiry as follows (Exhibit 6-2):

The party, one of your colleagues ill advised me in an abrupt but intelligent and knowledgeable manner, that benefits were not earned until --- what I understood you worked for a twenty or twenty two week period. In retrospect maybe I should have spoke with one of her superiors, but she impressed me as being intelligent and knowledgeable about this matter.

CUB 14813

DECISION