CUB 16275

TEITELBAUM J:

This is an appeal by the claimant, Theresa Blair, to an Umpire, from a unanimous decision of a Board of Referees dated July 13, 1988 (Exhibit 18).

An appeal to an Umpire is made pursuant to Section 95 of the Unemployment Insurance Act, 1971 (Act).

95. An appeal lies as of right to an Umpire in the manner prescribed from any decision or order of a board of referees at the instance of the Commission, a claimant, an employer or an association of which the claimant or employer is a member, on the grounds that

(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) 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; or

(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

On the claimant's Notice of Appeal to Umpire, the claimant bases her appeal on subsection 95(c) (Exhibit 26-2).

To the 30th of June 1986, the claimant was employed as a teacher by the Saskatoon West School Board. She filed an application for benefits on November 1, 1987 (Exhibit 2) to which is attached a letter explaining why she is late in filing her application (Exhibit 3).

The claimant states that at the beginning of June 1986, her principal suggested she could apply for benefits under the Act as she was a temporary teacher at that time on a contract from the previous August to December and then extended to June 1986. The claimant then contacted the Commission to inquire about the procedure to file a claim and was told she required a Record of Employment to fill out an application. The claimant then contacted, by telephone, the Saskatoon West Division Office of her employer and was told that she would not be eligible for benefits and there therefore was no use in giving her a Record of Employment.

The claimant went back and reported this to her principal who said he did not think this was correct. The claimant telephoned again to her employer and was told the same thing. The claimant then went to the employer's office to get her Record of Employment but to no avail. As a result of her employer's refusal to give her Record of Employment because, as they told her, she was not eligible for benefits, she "let the matter go". When the claimant returned to school in September she learned from 2 fellow teachers in the identical or similar situation as the claimant that they did receive benefits.

On December 8, 1987, the claimant completed an Application to Antedate Initial Claim (Exhibit 8) in which she reiterates, in part, what she states in her letter of November 29, 1987, Exhibit 3:

"I made several attempts between the months of May to June to get a record of employment from the Saskatoon West School Board office. I made phone calls and visited the office to no avail. I was told I would not be eligible and therefore they would not issue a record of employment. (I was on a temporary contract from 08/85 - 12/85, then 12/85 - 06/86, and 08/86 - 06/87)."

The claim for antedate was denied. The Commission, on March 10, 1988, forwarded a Notice of Refusal to the claimant:

"On the information which has been presented with your claim for benefit, you cannot have your claim antedated to 01 September 1985. This is because you have not proved that throughout the whole period between 01 September 1985 and 28 November 1987, you had good cause for the delay in making your claim.

We have, however, established your claim effective 29 November 1987. This decision is based on subsection 29(4) of the Unemployment Insurance Act, 1971 and section 39 of the Unemployment Insurance Regulations."

(Exhibit 9)

The claimant appealed this decision to a Board of Referees. Upon receipt of the claimant's Notice of Appeal (Exhibit 10), the Commission reexamined the claimant's application for antedate and sent the claimant a new Notice of Refusal dated April 20, 1988 which states:

"On the information which has been presented with your claim for benefit, you cannot have your claim antedated to 01 September 1985. This is because you have not proved that on 01 September 1985 you qualified for benefits and that throughout the whole period between 01 September 1985 and 28 November 1987, you had good cause for the delay in making your claim.

We have, however, established your claim effective 29 November 1987.

This decision is based on section 17 and subsection 20(4) of the Unemployment Insurance Act, 1971 and section 39 of the Unemployment Insurance Regulations."

(Exhibit 12)

This decision was appealed to a Board of Referees, who, on June 8, 1988, commenced a hearing but adjourned same with a recommendation to the Commission to investigate with the Saskatoon West School Board secretary (Darlene Roney) regarding the alleged information obtained from a Commission agent in June 1986 that a teacher on a temporary contract would not be entitled to benefits during the two summer months (Exhibit 15).

The investigation made by a D. Earl on June 14, 1988 seems to corroborate what the claimant wrote in Exhibits 3 and 8.

"1. Where the teacher has had a temporary contract and that contract has not been renewed on or before the last day of June, the Record of Employment is issued with the June pay cheque. Where the temporary contract has been renewed on or before the last day of June, either as another temporary contract or a permanent contract no Record of Employment is issued.

2. Over the years she has been in contact with this office on a number of occasions, she can't recall from whom she obtained this information. She had spoken to Goldie Lindenbach on a number of occasions but can't recall whether this employee is the one from whom she got the direction not to issue the Records as described above or not. Before issuing the Records last December for this claimant, she again contacted this office and was told to go ahead and issue the Records as it was likely the claimant's wouldn't be entitled in any event."

(Exhibit 16)

The Board of Referees, composed of two members Only, both of whom commenced the hearing on June 8, 1988, decided to maintain the decision of the Commission.

"The date on Exhibit 1 - September 1, 1985 should have read July 1, 1986.

The Board unanimously agrees that the claimant's request for antedating her claim to July 1, 1986 is unjustifiable. The claimant admitted to contacting the Canada Employment Centre Office for general information. Good cause was not shown for the delay in filing her claim for a period of over 1 year;

Immediately upon hearing from her teacher friends claimant should have immediately contacted the Teacher's Federation for further clarification and an application for an antedate.

During the summer of 1987, claimant was employed at Cradle & All from June 20, 1987 to August 17, 1987, therefore not unemployed.

According to Section 17 and 20(4) of the Unemployment Insurance Act and section 39 of the Unemployment Insurance Regulations benefits cannot be paid.

The appeal is dismissed."

This decision is now under appeal to an Umpire. The claimant was "laid off" of work on June 30, 1986 and did not work during the months of July and August 1986. The antedate being requested is to July 1, 1986. The claimant was offered, once again, a temporary contract to start work on September 1, 1986. She accepted same.

The statutory provisions relevant to antedating a claim are the following:

20.(1) A benefit period begins on the Sunday of the week in which

(a) the interruption of earnings occurs, or
(b) the initial claim for benefit is made,

whichever is the later.

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.

The relevant regulation is Section 39:

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.

Referring to the above sections, Mr. Justice McNair states, in CUB 15920:

Based on these sections, there are two conditions that must be met in order to antedate a claim for benefits. A claimant must have good cause for the delay in making the claim and he must qualify to receive benefits pursuant to s. 17 of the Act on the prior day. Section 17 of the Act stipulates that, in order to qualify for benefits, an insured person must have worked the required number of insured weeks and must have had an interruption of earnings."

Has the claimant shown good cause for the delay to file her claim. The principle "good cause" has been reviewed in a number of cases. In the case of Albrecht [1985] 1 F.C. 710, Mr. Justice Marceau states, at page 718:

"In my view, when a claimant has failed to file his claim in a timely way and his ignorance of the law is ultimately the reason for his failure, he ought to be able to satisfy the requirement of having "good cause", when he is able to show that he did what a reasonable person in his situation would have done to satisfy himself as to his rights and obligations under the Act. This means that each case must be judged on its own facts and to this extent no clear and easily applicable principle exists; a partially subjective appreciation of the circumstances is involved which excludes the possibility of any exclusively objective test. I think, however, that this is what Parliament had in mind and, in my opinion, this is what justice requires."

Surely the claimant did what any "reasonable person" would have done. I am satisfied that no "reasonable person" would have, after being told on three occasions, that she is not eligible, one of these times after having this confirmed in a telephone conversation between the school board representative and a representative of the Commission, thought of going to the Teachers federation for further clarification. The claimant acted most reasonably in deciding, after a third time that she is not eligible, to leave matters be. This is particularly understandable if one takes into consideration that the claimant, when site contacted the Commission had, been told by a representative of the Commission that she required a Record of employment to file an application for benefits.

She has shown "good cause" within the meaning of the Act.

The claimant was not employed during the months of July and August 1986. She had the required number of insurable weeks to be qualified to receive benefits.

The appeal is allowed.

Max M. TEITELBAUM

Umpire

OTTAWA
February 17, 1989.