CUB 16333

DENAULT J.:

The claimant is appealing from a unanimous decision by the Board of Referees to accept the Commission's refusal to antedate his claim for benefits, which was filed on September 14, 1987, to November 25, 1985. In this case, the issue is whether the claimant had good cause for his delay in filing his benefit claim under section 20(4) of the Unemployment Insurance Act, 1971, and section 39(1)(b) of the Regulations.

Mr. Proulx had worked for N.C.R. Canada Limitée for more than 30 years when he had to leave work because of illness on May 24, 1985. Since November 25, 1985, he had been receiving long-term disability benefits from his employer, as well as Quebec Pension Plan benefits. He was unaware at the time, as was his employer, that he could be entitled to unemployment insurance sickness benefits. It was only in September 1987 that he found out from a relative that he could qualify, and he made his claim at that point. His request to antedate his claim was denied because his reason for the delay in filing his claim, ignorance of the law, did not constitute good cause.

The Commission gave the following decision:

[Translation]

Did the claimant have good cause for his delay in filing his benefit claim, and consequently, can it be antedated to November 25, 1985?

During the hearing, the claimant maintained that the reason for his delay in making his benefit claim was that he was not familiar with the Unemployment Insurance Act. Furthermore, he explained that even the company did not know about the Unemployment Insurance Act.

According to the abundant existing and even recent case law, a person cannot use ignorance of the Act itself as good cause for antedating a claim at a later date. Therefore, in this case, the Board of Referees has no choice but to uphold the decision.

Thus, the Board of Referees unanimously upholds the Commission's decision and dismisses the appeal.

First, it is important to note that during the Board of Referees hearing, Albert Renaud, the head of administration at the claimant's employer, testified and confirmed that he was unaware that workers could be entitled to sickness benefits under the Unemployment Insurance Act. His attendance at the hearing was not even noted, and the Board of Referees did not mention his testimony. However, the appeal cannot be upheld for this reason alone.

Nevertheless, in my opinion, the Board of Referees did not summarize the case law well by stating that "a person cannot use ignorance of the Act itself as good cause for antedating a claim at a later date." This principle from PIROTTE ((1977) 1 F.C. 314) is now considered too categorical, and its rigour was mitigated by the Federal Court of Appeal's decisions in ALBRECHT ((1985) 1 F.C. 710) and CARON (A-395-85, February 10, 1986). These decisions were relied on numerous times in decisions given by umpires (CUB 14019, CUB 12027, CUB 12950, CUB 13378), and to find a good balance between ignorance of law as good cause or as no cause for delaying the filing of a claim, it is now customary to apply the test of reasonableness to the reasons given by the claimant. In short, for every case being examined, it must be asked whether a reasonable person in the same situation would have delayed filing the claim.

In this case, the claimant's illness, his unfamiliarity with the unemployment insurance plan and the ignorance of even his employer regarding the fact that its employees could be entitled to unemployment insurance sickness benefits constituted ample good cause for antedating the claim.

For these reasons, the appeal is allowed, and it will now be up to the Commission to determine whether the claimant was entitled to receive payment for benefits given that he was receiving disability benefits.

OTTAWA
March 1, 1989.

PIERRE DENAULT

UMPIRE