IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim by
David Nopper
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IN THE MATTER OF an appeal to an Umpire by the Claimant from a decision of the Board of Referees given at London, Ontario on April 30, 1987.
DECISION
STRAYER J.
During the period of 1986-7 in question here, the claimant was working more or less regularly as a supply teacher in London, Ontario. He was unemployed for about eight weeks including parts of June, July, and August, 1986. During this period he had not yet received the Records of Employment from his former employers. He received one of these some time after it was mailed to him on August 27, 1986, covering two weeks of employment. It is not clear when he received the other Records of Employment but he did not apply for benefits for the eight weeks in question until March 2, 1987. At that time he sought to have his claim antedated to May 31, 1986.
The Commission refused to antedate his claim, concluding that he did not have good cause for the delay as required by subsection 20(4) of the Unemployment Insurance Act as it then stood. On appeal to a Board of Referees the Board on May 1, 1987 dismissed the appeal by a majority judgment. The dissenting member of the Board found for the claimant on the basis that the former employers had not provided the respective Records of Employment within five days after the interruption of earnings as required by section 35 of the Regulations.
The claimant appeals from the majority judgment of the Board of Referees invoking all grounds of appeal under section 95 of the Act. With respect to the grounds set out in paragraph 95(a), the claimant alleges a denial of natural justice on the basis that he was informed only just before the hearing of the Board that one element of the Commission's argument would be that in the printed "Important Note to Employee" on the back of the record of employment forms, employees are advised to file their claim "at once". As he had received at least one of these forms in September, 1986, the Commission intended to argue that he should have been aware of the need for filing his claim as soon as possible even if he had not received all of his records of employment. With respect to this contention, the Commission had put on file on April 16, 1987 its observations to the Board in which this issue was identified. This was two weeks before the hearing of the appeal by the Board and in the normal course of events these would be provided to the claimant at the same time. Even is this was not done, the printed note on which the Commission was to rely is no more than a statement of the law which the claimant could be presumed to have known. Therefore whether he could or did read this note, the Board was entitled to assume that he should have known the claim should be filed as soon as possible or at least should have taken such care as was reasonable in the circumstances to find out when a claim should be filed. I am therefore unable to find that the claimant was unfairly taken by surprise by the Commission's reliance on this statement or the legal rule which underlies it, and therefore find no denial of natural justice.
The remaining contentions of the claimant variously fall within paragraphs 95(b) and (c) of the Act. They really amount to assertions that the Board of Referees misinterpreted the law or failed to take account of evidence that the claimant acted as a "reasonable and prudent person", the test authoritatively applied in the Albrecht 1 and Caron 2 cases. It appears to me that the Board has correctly applied that test to the facts. The claimant has not demonstrated any reasonable cause for a delay from September until March in filing a claim. As of September he knew he had been unemployed for several weeks during the summer of 1986. Further, he knew by September that he had employment at least for the time being. He apparently made no effort to contact the Unemployment Insurance office for advice as to what he should do about submitting a claim. There is no evidence to suggest that he was in any way prevented from doing so or that he was wrongly advised to delay by someone upon whom he could reasonably rely. It is certainly unfortunate that he had not been provided with all of his Records of Employment. But the failure of an employer to fulfil his obligations under the Unemployment Insurance Regulations does not excuse a delay by a claimant of this magnitude in filing a claim, given the other circumstances of this case. This principle was clearly applied by the majority of the Board of Referees, in my view correctly so.
The claimant has misinterpreted some of the jurisprudence in seeking to justify his delay. He relies on cases to the effect that one need not claim at once if he believes he is about to get other work. It is true that during the months of unemployment the claimant was actively seeking employment and finding it for brief periods, and it might well have been justifiable for him to delay for a short period making a claim while he thought he was about to be reemployed. This is particularly true even the temporary nature of his typical employment. But by September he knew that he had suffered several weeks of unemployment in the past for which he could claim. He also asserts that once reemployed he was under no obligation to file an early claim because, according to the jurisprudence, if one thinks one is employed this provides good cause for not filing a claim. Such jurisprudence relates to ambiguous situations where one thinks one has a job to which to return when in fact one does not. That was not. the case of the claimant here who, when he had employment, was definitely engaged in it.
Finally, the claimant can see no reason why a claim is any less valid if filed seven or eight months late. While there May be some logic in that point of view, subsection 20(4) of the Act as it then stood clearly contemplates immediate filing as the normal situation with delays being excusable only for a good cause. The reason for that requirement is said to be the administrative need to be able to identify and verify the relevant events as soon as possible after they occur, while the information is still available. Delay is excused only for a "good cause" and that has been interpreted to involve a test as to what a reasonable and prudent person would have done in the circumstances. As the claimant has not shown that there were reasonable grounds for delaying the filing of his claim, and as the Board of Referees appears to have applied the correct test in reaching the conclusion it has, the appeal is dismissed.
(s) "B.L. Strayer"
Umpire
OTTAWA, ONTARIO
July 13, 1989