CUB 17601

CULLEN, J.

This is an appeal from the decision of the Board of Referees and came before me at Toronto, Ontario, on November 20, 1989.

The issue before the Board of Referees was whether the claimant had established good cause for delay in making his claim for benefit and could therefore have it antedated pursuant to subsection 20(4) of the Unemployment Insurance Act and Regulation 39.

I have given this decision on the record without an oral presentation from the claimant or the Commission to enable the claimant to know my reasoning after I have studied the file in some detail.

The claimant had been employed by PHA Industries when he was injured in a car accident on May 14, 1987. At this time he received insurance benefits from his employer. After his recovery the claimant was in an alcohol rehabilitation program, from July 21 to August 23, 1987. On February 3, 1988, the claimant applied to have his initial claim antedated to May 1987 (Ex. 3) because he did not realize he could apply for these benefits.

It was the Commission's view that just cause had not been established for the claimant's delay in filing for benefit (Ex. 4). The claimant had many previous claims, including one for sick benefits while he was in receipt of wage loss insurance (Ex. 8(1-6), 10-2). Therefore, the claimant should have known to contact the office.

The claimant appeared at the hearing before the Board of Referees. The Commission argued that there was not good cause for this delay of over 6 months (Ex. 4, 5), and further that the claimant had once before established a claim for benefits while receiving insurance money. The claimant stated that he did not apply earlier because he did not know that you could apply for benefits while receiving sick benefits. from an insurance company (Ex. 5). The Board noted that there May have been some misunderstanding among staff members at the Commission when they informed the claimant. The Board also noted that during the time in question the claimant was not incapacitated by reason of injury from filing a claim. However, in light of all the circumstances, it was the unanimous opinion of the Board that the claimant is not entitled to antedating for he had not shown good cause for his delay. The Insurance Agent's decision was therefore upheld and the claimant's appeal was dismissed.

The claimant did not specify upon which grounds his appeal to the Umpire was based. In the claimant's letter of appeal (Ex. 14-3) the claimant states a person he worked with also failed to apply for benefits while receiving insurance sick benefits, and his antedating claim was not refused. Therefore, it seems unfair that these same circumstances would have different results.

To allow for antedating, a claimant must have been qualified for benefits on the date that antedate is sought and show good cause for the delay in filing claim (CUB 12762). The onus of proving good cause rests with the claimant (CUBs 10922, 13821). The Albrecht test is used to determine "good cause", that is, did the claimant 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. Inexperience with the system can be sufficient to establish good cause. However, this claimant is a seasoned veteran at making Unemployment Insurance claims, and even has prior experience in receiving sick benefits in conjunction with insurance payments. This explains the difference in treatment between the claimant and his co-worker. The claimant has been down this route before and should clearly know what was expected of him. Even if there were some misinformation on behalf of the Commission that is of no avail to this claimant. Misinformation will not allow the Umpire to relieve a claimant from the operation of law (Granger v. CEIC, [1986] 3 FC 70 (FCA), aff'd SCC #19959, February 1, 1989.

Accordingly, the appeal is dismissed.

B. Cullen

UMPIRE

OTTAWA
November 27, 1989