IN THE MATTER OF THE UNEMPLOYMENT INSURANCE ACT
- and -
IN THE MATTER OF a claim for benefit by
VELTA ULMANIS
- and -
IN THE MATTER OF an appeal to an Umpire by the claimant
from the decision of a Board of Referees given at
Toronto, Ontario, on February 12, 1991.
DECISION
J. C. McNair, Q.C., Umpire:
The claimant appeals the unanimous decision of the Board of Referees upholding the Commission's decision to reject her request to have her claim antedated to February 4, 1990 on the ground of having failed to prove that throughout the whole period from then until September 15, 1990 she had good cause for the delay in making her claim. The grounds specified in the claimant's letter of appeal read as follows:
- the Board of Referees failed to observe a principle of natural justice or refused to exercise its jurisdiction;
- the Board of Referees erred in law in making its decision; and
- 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.
In particular, it is my position that the Board of Referees did not allow me to have a full and fair hearing of this issue contrary to the principles of natural justice. Furthermore, the Board of Referees erred in law and fact when it refused to consider and rely upon the fact that I relied upon misleading and inaccurate advice provided by a U.I.C. employee regarding the time requirements for submitting a claim.
The claimant had been employed as a design coordinator with Canadian Broadcasting Corporation under several employment contracts. The current one covered the period from September 11, 1989 to September 10, 1990. CBC terminated this contract on February 2, 1990. On February 19, 1990 she picked up her record of employment from CBC for the period of her employment under this contract. On February 20, 1990, the claimant went with this to her nearest CEC office to pick up an application for unemployment insurance benefits. On inquiring about her entitlement, she was told by an employee of the Commission that she could file an immediate application for benefits but that her other records of employment from CBC and her previous employer, UMA Spantec Ltd., would be required in order to properly evaluate her claim. She then asked this person whether there was any deadline in submitting her application and supporting documentation. She was told that there was none, and that people often waited months to file. Relying on that information, the claimant decided to defer filing her application until she had assembled all the required documentation. The claimant filed her completed application for benefits on September 17, 1990. This was followed on September 25, 1990 by her written request to have her initial claim antedated to February 4, 1990 in which she amply detailed her reasons for the delay in filing.
Some confusion ensued regarding the refusal of her antedate request. She was initially advised of this by a letter dated October 4, 1990. The Commission wrote her on November 20, 1990 to advise that decision had been sent in error and was revoked accordingly, that her case had been reconsidered, and that a new decision had been rendered. The new decision rejecting her antedate request was sent out in a separate letter under the same date, and appears to have been based on the same statutory provisions relied on in the original decision of October 4, 1990. The claimant appealed this new decision to the Board of Referees.
The claimant was not present at the first hearing before the Board of Referees scheduled for January 11, 1991. The Board considered that she had been duly notified of the date and place of hearing and proceeded to render a decision in her absence, based on the written record. In its decision, the Board reached the following conclusion:
CONCLUSION:
In giving the documentation before it careful consideration, the Board is unable to find any compelling reasons for the appellant's lengthy delay in making her initial claim for benefit throughout the whole period from 04 February 1990 to 15 September 1990. For the above reasons the appellant's appeal is dismissed.
DECISION:
The appellant's appeal is DISMISSED and the decision of the Insurance Agent is UPHELD.
The claimant complained to the Commission that she had not received sufficient notification of the hearing and asked that the matter be re-scheduled. The Commission acceded to this request on the basis that a rehearing was warranted under s. 86 of the Act. This enabled the claimant to file as additional evidence a letter dated February 8, 1991 from her psychotherapist, Elisabeth Mowling, B.Sc., to the Board of Referees, which reads as follows:
Ms. Velta Ulmanis has been to this office for regular weekly sessions from February 20, 1990 to the present.
Ms. Ulmanis presented with symptoms of depression which she reported to me had started following the sudden loss of her position at CBC, where she was laid off.
During the time she was most depressed, she experienced low energy which resulted in her not doing many things that she might ordinarily have tended to.
I trust this information will be of some value in your decision.
The same Board of Referees reconvened on February 12, 1991 to hear the appeal and this time the claimant was present. The Board alluded to the new evidence contained in the letter from Mowling Counselling Services (Exhibit 14) in its review of the facts and evidence, and went on to state the following factual findings and conclusion:
The appellant at that time [February 20, 1990] was in an emotional unstable condition. In the previous two years she had experienced an abrupt termination of her brief marriage. After being solicited for an excellent position at the C.B.C. headquarters project in Toronto, she underwent a confusing array of shifting responsibilities from different head offices and for seven weeks did not receive any income due to confusion as to whom she should report.
In discussion the appellant outlined the job search she had undertaken from February 1990 until she ultimately took work in the retail field prior to the Christmas rush, and also some short-term contract work in her profession.
CONCLUSION:
The appellant was a credible witness and the Board was very sympathetic to her situation. It is very apparent that she has suffered great anxiety owing to the stressful conditions related to her work at the C.B.C., her abrupt termination, and the ensuing confusion regarding her Unemployment Insurance benefits application. Nevertheless, in reviewing all the evidence before it, the Board is unable to find that the appellant can show good cause within the meaning of the Unemployment Insurance Act for the lengthy delay in making her claim for benefits. She came to the C.E.C. on 20 February 1990 with one Record of Employment and could have filed an application at that time. She accepted the word of one C.E.C. employee and made no further attempt to do anything about her claim until September 1990. While she was depressed and lacking in energy, she was able to conduct an extensive job search.
Based on all the evidence before it, the Board unanimously concludes that the appellant is unable to show good cause for the delay in making her claim for benefits.
DECISION:
The appellant's appeal is DISMISSED and the decision of the Insurance Agent is UPHELD.
The claimant was capably represented before me by Ms. Rebecca Will, a student-at-law with the firm of Genest Murray DesBrisay Lamek, who filed a well-crafted brief of submission and a book of authorities. Mr. Robert Goldstein acted as counsel for the Commission, and made an able presentation on behalf of his client.
Counsel for the claimant submitted her client had good cause for the delay in making her claim by reason of her reliance on misinformation provided by an employee of the Commission to the effect that there was no deadline about filing her application. Based on what she had been told at the time, the claimant concluded it would be less complicated to wait until she had all her records of employment at hand. Counsel further submitted that the claimant was in an emotionally unstable condition following her lay-off from CBC as a result of job stress and the breakdown of her marriage, so that she was not emotionally capable of dealing with the problems associated with acquiring her records of employment from her employer. She stressed the point that the Board of Referees had found this to be the fact. In her submission, the Board of Referees made an error of law in its interpretation of what constituted "good cause" according to the test enunciated in the landmark decision of the Federal Court of Appeal in The Attorney General of Canada v. Waldermar Albrecht, [1985] 1 F.C. 710 per Marceau J. at 718. She then proceeded to review briefly the CUB authorities set out in her brief.
Claimant's counsel submitted that Ms. Ulmanis was in exactly the same situation as the claimants in those cases inasmuch as she relied on information given by an employee of the Commission which was incorrect or narrow in response, thus leading her to believe she would not be penalized in delaying the filing of her application because there was no deadline involved and that it made better sense to wait until she had all her records of employment in hand.
Counsel next addressed the allegation of the Board's failure to observe a principle of natural justice, arguing that the rendering of a decision on rehearing by the same panel which had already rendered an adverse decision led to a reasonable apprehension of bias, citing CUB 14813, Millward.
Finally, it was the submission of counsel for the claimant that the Board of Referees erred in law by refusing the claimant's request to antedate her claim contrary to the established test of what a reasonable person in similar circumstances would have done in light of the misleading information given by an employee of the Commission.
This first point made by counsel for the Commission, Mr. Goldstein, was that the claimant's explanation for the delay in filing her claim attributable to misinformation provided by the Commission was different from what had been submitted to the Board of Referees in Exhibit 4, namely, that she had decided to hold off on her application until she had all her records of employment because she didn't want to create unnecessary work and administrative entanglement. Secondly, counsel argued that the information provided was not actually erroneous because there is no statutory deadline for filing an application for benefits and it is literally true that some people do wait months before filing. He cited in support of that proposition my decision in CUB 11718, Nielsen, submitting that the facts of that case were very similar to those in the case at bar. In answer to a question posed by me, counsel for the Commission conceded that while there is no statutorily prescribed deadline for filing unemployment insurance claims, there is nevertheless an obligation imposed on claimants to file promptly in the interest of administrative efficiency.
Commission counsel urged that there was evidence before the Board of Referees that the claimant's decision not to file her claim promptly was based primarily on her desire to avoid creating unnecessary work and administrative entanglement, such that the Board could have reasonably concluded that she had failed to prove good cause for her delay in filing. He also stressed that the proper test was whether the Board's decision was reasonable in light of the existing evidence, not whether an Umpire trying the matter at first instance might have been persuaded to come to a different conclusion on the same evidence.
As for the apprehension of bias arising from the circumstance that the same Board rendered an adverse decision anew, counsel for the Commission contended that the decision of Madam Justice Reed in Millward, supra, did not go quite so far as to lay down the absolute rule espoused by claimant's counsel. He further submitted that the Board's conduct of the rehearing and the manner in which it rendered the second decision were not such as would lead a reasonably well-informed person to conclude that there was any likelihood of bias, according to the test postulated by the Supreme Court of Canada in Committee for Justice and Liberty v. National Energy Board (1976), 68 D.L.R. (3d) 716.
So much for the arguments. I propose now to review some of the authorities cited herein.
In Attorney General of Canada v. Albrecht, supra, Mr. Justice Marceau prescribed what has come to be accepted as the standard test for "good cause" in antedate cases, when he stated at p. 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.
[Emphasis added.]
In CUB 11100, Soltice, the Umpire applied the Albrecht test in allowing the claimant's appeal from a refusal to have his claim antedated, despite a delay of over two years, on the ground that he did what a reasonable person in a similar situation would have done to satisfy himself as to his rights and obligations under the Act, having regard to misinformation provided by an employee of the Commission. The claimant had telephoned the CEC office and spoken to a lady on the other end about his entitlement to benefits, explaining that he had been obliged to retire on disability pension at 55 years of age. She informed him that he would not be eligible for benefits until he turned 65 years of age. Two years later, a friend of his who retired from the same employer told him that he had applied a year and one-half after his retirement and obtained UI benefits. The claimant then applied and was told that he was too late. His request for antedating his claim was also refused. The principal argument advanced by the claimant was that his failure to apply promptly was due not so much to his "ignorance of the law" but rather to the misinformation given him by an official of the Commission, on which he relied. Muldoon J. made the following apt statement at page 4 of his decision:
Now, a reasonable person is not an anxiety-ridden paranoiac who doubts or disbelieves an apparently authoritative word of advice to the point of seeking to verify that advice again and again, daily or periodically, lest the advice be erroneous. A reasonable person, being initially justified in accepting that apparently authoritative advice, naturally continues to accept it day by day unless or until its error or untrustworthiness be brought to his attention. That exactly describes the claimant's course of conduct, which was that of a reasonable person.
The Soltice decision was followed and applied by Joyal J. in CUB 12950, Sanders.
In CUB 11271, Cosgrove, the Commission, in seeking to justify a refusal of a request to antedate, argued that the information given by the Commission counsellor to the claimant with respect to his initial claim was technically correct because the claimant did not specifically enquire about terminating that claim. The Chief Umpire held that the Board of Referees erred in law by applying too narrow a test in dismissing the claimant's appeal on the basis he had not specifically inquired about terminating his claim, instead of finding 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 within the broader purview of the Albrecht test. The rationale for the decision can be found in the following statements of Jerome A.C.J. [pp. 4-5]:
...surely where a claimant makes inquiries of the Commission, the Commission has an obligation to provide the correct information. Here, the claimant attended at the Commission's offices, advised his counsellor of the facts involved in his claim and sought the advice of the counsellor concerning the proper course of conduct. The counsellor, in advising the claimant to continue his existing claim since he would be entitled to an extension of his qualifying period when a new claim was ultimately filed, misinformed the claimant. The claimant relied on that information and in so doing became disentitled from benefits to which he would have been entitled had he been correctly advised to terminate his existing claim... Here, the claimant's mistake is reasonable since it resulted from the misinformation given the claimant by an employee of the Commission.
CUB 14813, Millward, recognized that an imprecise question put by a claimant in making inquiries of the Commission about his eligibility for benefits did not automatically negate good cause for delay in making a claim. The Commission had argued that the imprecise question resulted in the claimant forming a wrong impression of his ineligibility, which was of his own making. The Umpire held that the erroneous information the claimant received from the Commission led him to believe he was ineligible for benefits, and constituted good cause for his delay.
The case is also interesting on the issue of bias. An initial hearing before the Board of Referees resulted in a dismissal of the claimant's appeal from the Commission's refusal of his request to antedate. When it became apparent that the claimant had not received proper notice of the first hearing, a second hearing was held before the same panel which rendered the same decision it had given previously. Neither decision contained any statement of the Board's findings of fact material to its decision, contrary to s. 94(2) of the Act. This situation prompted the following statement by Reed J. at pp. 3-4:
The fact that the Board did not set out the material facts on which it based its decision, and the fact that it had already rendered a decision against the claimant before hearing him, leads to a conclusion that there was a failure of natural justice in this case. A different panel should have been struck for the rehearing. Having the same panel rehear the case, after it has already rendered a decision, leads to an apprehension of bias.
[Emphasis added.]
The test for determining whether there is a reasonable apprehension of bias in any given case was thus stated by Laskin C.J. in Committee for Justice and Liberty v. National Energy Board (1976), 68 D.L.R. (3d) 716 (S.C.C.) at p. 732-333:
When the concern is, as here, that there be no prejudgment of issues (and certainly no predetermination) relating not only to whether a particular application for a pipeline will succeed but also to whether any pipeline will be approved, the participating of Mr. Crowe in the discussions and decisions leading to the application made by Canadian Artic Gas Pipeline Limited for a certification of public convenience and necessity, in my opinion, cannot but give rise to a reasonable apprehension, which reasonably well-informed persons could properly have, of a biased appraisal and judgement of the issues to be determined on a s. 44 application.
[Emphasis added.]
LeDain J. applied this test in Caccamo v. Minister of Manpower and Immigration, [1978] 1 F.C. 366 (C.A.) when he said at pp. 376-77:
The issue in this case is whether the statement attributed by the newspaper article to Mr. B. M. Erb, Director of Information for the Department of Manpower and Immigration, gives rise to a reasonable apprehension of bias in the Special Inquiry Officer who has been directed to conduct the inquiry or in any other Special Inquiry Officer to whom the inquiry might be assigned. The test, as the Supreme Court of Canada has indicated, is whether the reasonable apprehension is one that reasonably well-informed persons could properly have of biased appraisal and judgment of the issues to be determined. See Committee for Justice and Liberty v. National Energy Board (1976) 68 D.L.R. 3d 716 per Laskin C.J.C. at p. 733.
In the present case, I doubt that a reasonably well-informed person would form the impression of a reasonable apprehension of bias from the mere fact that the Board came up with a similar adverse result, where the decision itself was posited on a more extensive review of the evidence, including favourable findings relative to the claimant's credibility and the stress she was experiencing from the termination of her employment with CBC. In short, the decision was substantially different, although the end result was the same. Given the facts and circumstances of the present case, I am not persuaded that the decision of the Board of Referees under appeal was tainted by bias and rendered illegal, according to the test prescribed by the Supreme Court of Canada in the Committee for Justice and Liberty case.
Where the Board of Referees went wrong, in my view, was by downplaying the significance of the misinformation given the claimant by an employee of the Commission at the time of the initial interview on February 20, 1990 and by determining that her reliance on the word of one employee represented an oversight or mistaken assumption on her part. Considering the evidence in its entirety, I am of the opinion that the Board or Referees erred in law in determining that the claimant had not proven good cause for the delay in making her claim throughout the whole period from February 4, 1990 to September 15, 1990, according to the test propounded by the Federal Court of Appeal in the Albrecht decision.
For the foregoing reasons, the claimant's appeal is allowed and the decision of the Board of Referees is rescinded accordingly.
(s) J. C. McNair
UMPIRE
Ottawa, Ontario
September 3, 1992