CUB 16667

IN THE MATTER OF an appeal to an Umpire by the Claimant from a decision of the

Board of Referees given at VANCOUVER, British Columbia, on January 15, 1987.

DECISION

The claimant appeals a decision of the Board of Referees refusing to antedate her claim for sickness benefits. The claimant was notified of the time and place of the hearing of this appeal and indicated to the Registrar that she planned to attend. She also indicated that if she could not be available she would be content to have a decision made on the basis of the record. She did not attend the hearing.

The claimant seeks to antedate her claim, filed October 23, 1986, to August 22, 1986 to enable her to obtain sickness benefits. On August 23, 1986 she was rushed to the Vancouver hospital. She spent the following six weeks in the hospital. On release from the hospital she was instructed by her physician to spend three weeks at home recuperating. She then returned to work and was told by her union representative that she should have claimed sickness benefits.

The Board does not expressly state what test it applied in making the decision not to grant the claimant the antedate which she requested. The observations of the Commission to the Board of Referees [Exhibit 10-1 and 10-2] presented the Board with the following explanation of the appropriate jurisprudence to be applied:

The Insurance Officer's decision to disallow the antedate was supported by CUB 8126 wherein the Umpire stated that to show good cause for delay, the claimant must prove he was prevented from applying for benefits at an earlier date by something beyond his control.

Although Ms. Sorriento, in her letter of appeal (exhibit 8) states she was hospitalized for 2 months the Insurance Officer considered that there were no new facts and that while Ms. Sorriento was either in hospital or recuperating at home some other person could have acted on her behalf and could have at least requested an application for her and the completed application could have been mailed to the Commission.

In CUB 8613 the Umpire held:

" . . . Although this claimant was very ill, he could have telephoned the office or had someone represent him . . . "

In summary, Ms. Sorriento had not shown good cause for a delay of eight (8) weeks ...

The Commission's original decision to refuse an antedate [Exhibit 4] carries the following explanation of its decision: "not prevented from filing".

In the absence of an express test set out in the Board of Referees' decision and in the light of the Commission's observations to the Board I think it is a fair conclusion that the Board applied a pre-Albrecht test in determining whether or not an antedate should be granted. That is they applied too stringent a test. Accordingly, in my view the Board's decision is based on an error of law. I therefore will exercise my authority pursuant to section 96 of the Unemployment Insurance Act, 1971 and will give the decision the Board should have given.

The test to be applied in determining whether or not an antedate should be allowed is set out in A.G. Canada v. Albrecht, [1985] 1 F.C. 710 (F.C.A.). It requires that one ask whether the claimant is able to show that he [or she] did what a reasonable person in his [her] situation would have done.

The Commission argues that even if this test had been applied by the Board, the decision reached would be the same. It is argued that this follows from the fact that the claimant's failure to apply at the earlier date was largely conditioned by the fact that she did not know, until advised by her union representative, that she was entitled to apply for and receive sickness benefits. The Commission cites J.D. Aubin v. Unemployment Insurance Commission (Court file A-52-86; decision dated August 4, 1986) confirming CUB 11578. The Commission also cites CUB 12798 (Bassi), a decision of my colleague Mr. Justice Rouleau, dated October 24, 1986.

In the Aubin case the claimant had delayed bringing a claim for over five months. The claimant gave the following reasons for not applying for regular benefits: he did not think he was eligible for benefits because he had been self-employed; he did not need the money at the time; he expected to have a job within the six week disqualification period which he had to serve in any event.

In the Bassi case the delay was over six months. During the first three months the claimant received sick benefits from his employer and a stipend from his automobile insurance company. Mr. Justice Rouleau held:

The only reason provided by the claimant for failing to file sooner was that he was not aware that he was entitled to benefits until his lawyer so advised him in April 1985. Though ignorance of the law no longer strictly applies to good cause, there must be some reasonable explanation as to why a person would have delayed in filing a claim. As Mr. Justice Hugessen put it in Attorney General of Canada v. Julien Gauthier (A-1789-83):

"At the very least, in our view, good cause must also include circumstances in which it is reasonable for a claimant consciously to delay making a claim."

It is evident here that the claimant made no effort to determine whether or not he was entitled to benefits and there are no extenuating circumstances to support or justify his delay.

While the Commission has cited the Bassi decision, the decision in CUB 12027 (Flanders) rendered by my colleague Mr. justice Joyal seems to me closer to the facts of the present case:

The appellant was a commission salesman employed by Michael White Realties Inc. in Montreal. On or about January 12, 1984, he entered the hospital for purposes of tests. The tests disclosed cancer of the kidney. On January 23, 1984, he underwent a surgical intervention and his kidney was removed. He was released from hospital on February 3, 1984 and returned home where he convalesced for some 6 1/2 weeks. On March 21, 1984, he returned to work.

As a commission agent, the appellant enjoyed no group wage loss indemnity benefits to compensate him for his ten weeks of disability. Furthermore, as he freely admitted, he was perfectly unaware that unemployment benefits were payable to him during his period of illness. His employer had no personnel staff to alert him to this particular non-unemployment provision of the statute. Having paid into the unemployment insurance fund for years but never having claimed benefits against it, he did not know that medical benefits were available. All the more was he unaware that a claim for such benefits had to be made in a timely manner.

According to his statement made to the Commission on June 4, 1984, the claimant was informed of the medical benefit provision of the statute by his accountant. Accordingly, on May 2, 1984, he attended at the Commission offices, picked up the prescribed form and forwarded it to his doctor for completion. He received the completed form on June 4, 1984 and on that day, attended again at the Commission offices, filed his claim for benefits and made application to have his claim antedated.

The Commission refused to antedate the claim, giving as reason that "the delay was too long for reason given".

The claimant appealed to the Board of Referees. As is customary, the Commission filed with the Board "Observations of the Commission to the Board of Referees" in which it was noted that:

"The claimant explained in exhibits #4 and 5, that he delayed filing his application because he was unaware that he was entitled to receive benefits until his accountant informed him of his rights.

It is a fundamental principle that ignorance of the law is never a good cause, since every claimant has a duty to promptly make inquires at officer of the Commission (F.C.A. 108 - 76 CUB 4108, CUB 7482, CUB 4957)." (My emphasis)

Such a basis to deny the appeal might have been sound in August 1984 but it is not sound law today. To that extent, there is error in the Board's decision which enables an Umpire to intervene under the provisions of Section 95 of the Unemployment Insurance Act, 1971.

In the course of the hearing before me, Commission counsel agreed that the Board's decision was reviewable on grounds of error of law. The Commission representative further agreed that by the nature of the claim, its untimely date did not prejudice the proper functioning of unemployment insurance scheme nor were the circumstances such that retroactive processing of the claim would estop the Commission from exercising its normal role of continually checking and supervising the admissibility and entitlement of the claimant from week to week. The Commission agreed that were it not for the late filing, the claimant's entitlement to benefits from January 12, 1984 to March 20, 1984 could not be disputed.. . .

If ignorance of the law, per se, is not considered a bar to establishing good cause, equitable considerations can apply which, together with an admitted ignorance of the law, may well result in a proper finding of good cause.

On the merits of the appeal before me, the following considerations apply:

1. The claimant had had no prior involvement in unemployment insurance claims.

2. As a commission salesman, he did not benefit from information usually contained in personnel manuals nor did he have the service of union representatives to inform him of his rights under the Unemployment Insurance Act, 1971 or under any number of public assistance programs.

3. His right to claim sickness benefits goes against the grain of an unemployment insurance scheme. It is understandable that an ordinary citizen might not imagine that insurance benefits for people who cannot find employment although available for and capable of work would nevertheless be available to persons who are incapable of working by reasons of illness. It is understandable that the ordinary citizen might not surmise that there is incorporated into an unemployment insurance statute an income-support program for people who are ill or injured.

4. Once alerted by his accountant to this statutory provision, the claimant acted expeditiously to file his claim. He attended at the Commission’s offices, obtained the necessary form and forwarded it to his physician. On receipt of the completed form some weeks later, he immediately filed his claim.

5. By the nature of the claim which is for a finite and easily determinable period of time when the burden of capability and availability is not borne by the claimant as is the usual case but by objective medical evidence, the requirements of timely claims are not so severe. As was admitted by the Commission, administrative exigencies or functional needs are not, in practical terms, undermined."

On these grounds, I find that the claimant has established good cause for his delay. I would not wish to suggest that any particular circumstances among those I have listed would, by itself, provide good cause. Taken together, however, they appear to me to be the kind of situation contemplated in Section 39 of the Regulations where relief should be granted.

In the present case the delay was not long; during almost its whole length the claimant's reason for not applying for benefits was the illness itself; there is no evidence that the claimant had experience with the system; once alerted to her rights she acted expeditiously. In addition I share my colleague's view that timeliness is not as crucial to a sickness benefit claim as it is in the case of a claim for regular benefits. There is no requirement on the claimant to prove availability and thus there is not the same potential for prejudice, to the Commission, to arise as is the case with a claim for regular benefits.

The test set out in the Albrecht case is a flexible one. It requires an assessment of a variety of circumstances which may differ in each case: the length of the delay; whether any prejudice is occasioned to the administration of the unemployment insurance system by the delay; the sophistication of the claimant; the degree of experience a claimant has with the unemployment insurance system; the type of benefits being claimed (regular or sickness); the immediate cause of delay (e.g., illness or misinformation). This is not an exhaustive listing.

In the present case the application of the Albrecht test requires that the claimant's request for an antedate be granted. She did what a reasonable person would have done in order to satisfy themselves concerning their rights and obligations under the Act. For the reasons given the claimant's appeal is allowed. The Commission's decision refusing an antedate is quashed and the claimant is entitled to have her claim antedated to August 22, 1986.