IN THE MATTER OF THE UNEMPLOYMENT INSURANCE ACT
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IN THE MATTER OF a claim for benefit by
Thelma J. BABET
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IN THE MATTER OF an appeal to an Umpire by the
claimant from the decision of a Board of Referees given at
KELOWNA, British Columbia, on January 30, 1992.
DECISION
REED, J.
The claimant appeals a decision of the Board of Referees which found that she had not demonstrated good cause in delaying filing a claim for benefits from May 19, 1991 to August 19, 1991.
It is difficult to understand exactly why the Board concluded as it did. The Board's decision reads:
. . .
COMMENTS
Mr. Swail stated in the oral hearing that the main reason for the appellant not filing a reapplication sooner was because he understanding from the Commission, at an all employee information meeting on 1 March 1991 (Exhibit [sic] 16.1 to 16.3), that she had one year to reapply. She strongly feels she was misinformed by the Commission and for that reason Mr. Swail feels his client's case should be allowed to be antedated. He submitted the Byker Case as a parallel example (CUB 18145). Additional information was submitted by Mr. Swial [sic] on the day of the hearing (Exhibit [sic] 22.1 to 22.5).
The appellant states that the main reason for the delay in refilling an application sooner is that she was misinformed of the requirements and assumed the Commission would set up her claim automatically in May (Exhibit 6.1). She feels that she was mislead by the Commission when she made application through the I.A.S. Committee for industrial first aide training in the summer of 1991 (Exhibit 13). From the information at hand she received written instruction by letter dated April 16, 1991 with wording "when this situation ends you may apply again, if you wish to claim benefits (Exhibit 3). She was also informed by the Commission on March 1, 1991 at a group presentation, the advise was that a benefit period can not be established due to an allocation of separation payment and to apply for benefits after the date indicated on her notification if she was still unemployed and wished to be considered for benefits (Exhibit 16.2). Mr. Sutherland, responsible for I.A.S. Committee states "No record of a contact by claimant to apply for benefits" (Exhibit 13), in the summer of 1991 as claimed by the appellant. The appellant states it was unfair and she did not do it on purpose and she is being penalized for her ignorance. The fact remains as pointed out in part by the Judge in A-172-85:
"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.".
The board could not find any good cause for the delay in filing this claim on a timely bases, May to August seems a long time.
CONCLUSION:
The Board is sympathetic with the appellant's plight but finds that the appellant can not have her claim antedated to May 19, 1991 because she has not proven that through the whole period between May 19, 1991 and August 19, 1991 she had good cause to delay in making her claim. For that reason the Board rules her claim will be established effective August 19, 1991.
Further jurisprudence can be found in CUB 11086.
DECISION:
The Board rules the appeal is dismissed.
Section 79 of the Unemployment Insurance Act requires that Boards of Referees include in their decision "a statement of the findings of the Board on the questions of fact material to the decision" (underlining added). That is, the Board must state which facts led it to decide as it did. The Board in writing a decision should approach the task with a view to explaining to someone who was not at the hearing why it rejected some evidence but relied on other. For example, in the present case it is not clear whether the Board believed the claimant's assertion that she was misled as a result of the explanations given at the meeting of March 1, 1991, into thinking that she had one year with which to make her claim, or that she misunderstood the import of the letter of May 18, 1991, because there was no indication in it that she would be disadvantaged if she did not apply immediately.
In the decision set out above, the Board recites the claimant's evidence: her understanding from the meeting of March 1, 1991 that she had one year to reapply; she assumed the Commission would set up her claim automatically in May, in response to the application she had filed earlier; she felt mislead because she had taken a first aide course for which she obtained the Commission approval which approval was only necessary for individuals who were on claim. As has been noted, it is difficult to determine from the Board's decision whether they accepted the claimant's evidence regarding the wrong conclusions she reached.
The Board cites two factors that might arguably be the basis for its decision. It refers to the letter of April 16, 1991, in which the claimant was advised that she might reapply at a later date. The claimant had applied for benefits in March and this letter was in response to that application. The letter stated that she was not eligible for benefits because vacation pay and severance pay which she received on termination of employment was to be allocated. She was also told that once the allocation period expired "you may apply again, if you wish to claim benefit." Her application form was not returned to her with this letter and there is nothing in the letter to say that she should refile immediately on the termination of the allocation period to avoid losing benefits which might otherwise be payable.
The second statement of the Board which seems to be recited as support for its decision is the statement of Mr. Sutherland that "No record of a contact by claimant to apply for benefits". This of course is not direct oral evidence given by Mr. Sutherland to the Board. It is a report by a Commission employee, in a note to me, of a telephone conversation which was held with Mr. Sutherland's position, he was in charge of approving claimants who sought to attend the first aid course while on claim. Without such approval an individual attending the course might lose benefits as a result of not being available for work. Apart from the application which the claimant made in March 1991, it is obvious that no claim for benefits was thereafter made until August 1991. That is why she is seeking a backdating. Mr. Sutherland's reported comment in this regard, therefore, is not useful proof of anything. The claimant's evidence was that she filed a form to obtain Commission approval for attendance at the first aid course, so that she would not lose benefits because of such attendance. It is this documentation which she asked the Commission to find but which apparently was not found. That does not mean that a conclusion should be drawn that she did not do as she said she did and complete the documentation requesting such approval. Indeed, the letter of January 28, 1992, signed by Judy G. Quirk states:
... All those participating were given clearance and guaranteed continuation of U.I. benefits throughout this two week period if they were currently registered or receiving weekly benefits. To facilitate this, appropriate paperwork was completed by each participant and returned to the Unemployment office.
. . .
It is of course possible that the claimant's application for approval was discarded because the Commission determined that there was no active claim in the claimant's name but Mr. Sutherland's reported statement is of no use in determining whether the claimant has good cause for an antedate.
In any event, because I cannot be certain what test the Board applied, or on what facts it relied to come to its decision that good cause did not exist, I will quash the Board's decision and return the appeal for rehearing by a differently constituted panel.
The new panel should consider whether they believe the claimant, that is that she was confused or misled by the information given on March 1, 1991, whether she was further misled by the circumstances surrounding the first aid course and her past experience with unemployment insurance applications. There are some aspects of the claimant's explanation which seem inconsistent. Her assertion that she expected her claim to be started automatically and the cards to be sent to her, after the expiration of the allocation period, is inconsistent with her claim that she thought she had a year within which to apply without loss of benefits. While it is not necessary for the claimant to give her explanation personally to the Board, the Board is entitled to given any such explanation greater weight if it is given to them directly by the claimant rather than being filtered through the words of her lawyer. In addition, insofar as the appropriate test for good cause is concerned, the Board may wish to refer to two Court of Appeal decisions: Attorney General of Canada v. John Z. Richardson (A-596-91, October 7, 1992) and Attorney General of Canada v. Albrecht, [1985] 1 F.C. 710 (A-172-85).
This appeal is allowed and referred back to a differently constituted panel of the Board of Referees for rehearing.
OTTAWA, Ontario
August 26, 1993.
B. Reed
UMPIRE
2011-01-10