CUB 17192

JEROME, A.C.J:

This matter came on for hearing at Barrie, Ontario on February 2, 1989. The claimant appeals the unanimous decision of the Board of Referees which upheld the insurance officer's determination that the claimant was not entitled to antedate his claim.

The claimant graduated from college in May, 1988 and applied for unemployment insurance benefits on June 8, 1988. At the same time he applied to have his claim antedated to May 1, 1988, stating his reasons for not applying earlier as being that (1) as a graduating student he had not anticipated being unemployed; and (2) he was in the process of obtaining franchise rights for a business, but would not be able to begin working in his business for another two months.

The Commission denied the claimant's application for antedating on the basis that the claimant could not show good cause for delay, the claimant had no reasonable assurance that employment would materialize in the near future, and there was no indication of exceptional efforts to find work.

The claimant appealed the Commission's decision to the Board of Referees. He submitted that he had acted reasonably in not applying for benefits sooner, since only after diligent but unsuccessful attempts to secure employment did he apply. He pointed out that the delay in his receipt of benefits had hindered his opportunity to find employment, since he had no funds for travel to interviews. Finally, the claimant submitted that the CUB jurisprudence submitted by the Commission was irrelevant to his situation since "taking into consideration the data presented by the media . . . about steadily decreasing unemployment . . ., it is reasonable for a graduating student from the only legal administration program offered at the Community College level to be optimistic about securing employment".

The Board of Referees held that the claimant did not have good cause for the delay in applying for benefits. The fact that the claimant was a student did not, in the opinion of the Board, constitute a "good cause". The claimant's appeal was dismissed.

The claimant appeals this decision under s. 95(a) and (b) of the Unemployment Insurance Act, 1971. It was submitted that the Board had misunderstood the claimant's contention that by acting reasonably and in the capacity of a student, he had demonstrated good cause by believing him to be arguing that he had good cause just because he was a student. The claimant further submitted that he had attended an unemployment insurance office in the first week of May, 1988 and consulted an employment counsellor about employment opportunities. The counsellor was aware that the claimant had just graduated, was looking for work, and was in financial need, but she did not suggest that the claimant apply for unemployment insurance benefits. It is submitted by the claimant that there must be a duty of care on the part of a counsellor to assist a claimant in this respect since counsellors are possessed of special and particularized knowledge. The claimant contends that by visiting the office he made a reasonable attempt to obtain information.

The statutory provisions relevant to this issue are s. 20(4) of the Act and s. 39 of the Regulations:

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.

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 (6 July 71)

(a) on the prior day he qualified, pursuant to Section 17 of the Act, to receive benefits; and (30 July 1981)
(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. (6 July 71)

The findings of the Board of Referees are as follows:

FINDINGS

The Board examined the appeal docket and the statements made by the claimant. The Board notes that the claimant feels he had good cause for his delay in making his application for benefits and this was due to the fact he was a student. The Board does not feel the claimant had good cause for the delay in question and the fact he was a student does not make it "good cause" in their opinion and in view of this, can find no reason to alter the decision of the Insurance Officer.

I think it must be underlined here that members of Boards of Referees are not legal experts. They are expected to draw upon experience and common sense in the community in deciding questions of fact and credibility and above all what is reasonable in the circumstances. Their decision here as to whether this claimant is entitled to any special consideration as a student is entirely sound as far as it goes. The problem is that this case requires a bit more comprehensive analysis of some legal principles.

First, the principle of antedating. Unemployment insurance is a social programme designed to benefit people who are disadvantaged in their desire to work. Nothing is to be gained by denying benefits to people who would otherwise be entitled on the mere technical grounds that they have not filed at the right time. It is with that reason in mind that Parliament has enacted the antedating provisions.

The principle that ignorance of the law is no excuse used to be the complete answer to a great many antedating claims and very often Commissions and Boards of Referees required some evidence that the claimant was physically prevented from making a claim before extending the benefit of the antedating provisions. Fortunately, we now take a more enlightened view as expressed by the A.G. Canada v. Albrecht, [1985] 1 F.C. 710, F.C.A. Now, if a claimant has other valid reasons which May happen to include ignorance of his entitlement to benefits, he will still enjoy the benefit of the antedating provisions so long as he can demonstrate that he has acted in a reasonable manner to satisfy himself as to his rights and obligations under the Act.

Against this background, I note first of all that the claimant's credibility is not in doubt. It is accepted as a fact that very soon after the completion of his legal studies at the Community College, he attended at the U.I.C. office in Barrie to seek employment. He candidly admits that he did not insist on making an application at the time, but it was certainly an extensive interview and he rightly assumed that if he was entitled to benefits, some suggestion might have been forthcoming from the U.I.C. representative. I think it was understandable that he did not consider himself eligible for benefits since he had not been working but going to school and did not collect benefits while in school. I also consider it significant that less than two weeks later he made a second trip to a U.I.C. office, this time in Bracebridge, and there during the course of a similar interview, the U.I.C. officer advised him to make a claim.

Had the Board of Referees gone on to consider these matters, I am sure they would have reached the conclusion, as I do, that it was entirely reasonable for him to believe that he was not entitled to benefits and that he did all that could reasonably be expected of him to inform himself of his rights.

Accordingly, this appeal will be allowed.

James A. Jerome

CHIEF UMPIRE

OTTAWA
October 3, 1989