CUB 24908

The claimant appeals the unanimous decision of the Board of Referees who upheld the Insurance Officer's determination that she had not shown good cause throughout the whole period between October 15, 1990 and June 9, 1992 for the delay in filing her claim.

The claimant filed for benefits on June 9, 1992. According to the Record of Employment, her last day of work was October 15, 1990; she also filed a request to have her claim antedated to October 15, 1990. She had been employed by her former husband in two different businesses, R.I.R. Food Services and Ray Easterbrook Lunchroom Ltd. for approximately 9 years. During 1990 their relationship deteriorated and resulted in a divorce which became effective in May, 1992. The claimant stated she had contacted the Ministry of Labour and had been informed she had three years within which to apply for unemployment insurance benefits. The Commission advised the claimant on July 14, 1992, that it had been determined that according to sections 6 and 9 of the Act she had not shown good cause for the delay in making her claim.

The claimant appeared before the Board of Referees accompanied by a friend and adviser, Mr. Papin. He submitted a copy of a Record of Employment dated May 19, 1992 and two copies of a non-compliance report. Although the Record of Employment shows a last day of work of October 7, 1990, the claimant stated that she continued being paid by her husband's companies. She did not find out until the end of April 1992 that she truly was unemployed. It was noted by the Board that upon examination of the claimant's income tax return for 1991 no unemployment insurance premiums had been paid. The Board found that there was sufficient time between April 30 and May 30, 1992 for the claimant to attend the office of the Commission and file; they dismissed the appeal.

The claimant now appeals stating that the Board misunderstood the evidence. She did leave her husband and stop working on October 7, 1990. However, he continued to pay her. It was only when she received her Record of Employment on May 19, 1992 that she discovered she had been terminated on October 7, 1990. She took 21 days to file her claim from the date of receiving her Record of Employment.

Before the Umpire at Hamilton on May 6, 1994, the claimant produced T-4 slips for the year 1990 which she received in the spring of 1991. These documents showed earnings of $44,000.00 and $7,000.00 respectively and both indicated that unemployment insurance premiums had been deducted as well as Canada Pension Plan premiums. She concluded that she was still an employee after separation from her husband since he agreed to maintain her on the payroll.

It is a fact that after their separation in October of 1990, she no longer went to work but continued to receive her cheques on a regular basis. This prevailed well into 1992. During all of 1991 she was paid and when she requested her T-4 for that year she received a communication from her former husband or his accountant which disclosed that earnings for 1991 were approximately $1,300.00 and $17,000.00 but that they now were allocated as support payments which the estranged husband could deduct in their entirety from his income. It was impossible for this claimant to have any knowledge that her financial arrangements had been altered in light of the fact that for the 8 or 9 previous years she continued to receive funds from the business, continued to be treated as an employee and annually received T-4 slips indicating that unemployment premiums, Canada Pension Plan and other deductions had been honoured.

The Board was of the view that 30 days was ample time to file an application and dismissed the appeal.

The record indicates that she received her Record of Employment on May 19, 1992 and filed her claim on June 9, some 20 days later.

It is evident that because of the marriage breakdown this applicant experienced severe and extreme difficulty in attempting to obtain her Record of Employment. Exhibits 8-1 and 8-2 are non-compliance reports filed with the Commission by the claimant. Exhibit 8-1 indicates that while working for R.I.R. Food Services as supervisor, she was being paid $54.00 per day; Exhibit 8-2 indicates that while employed by Ray Easterbrook Lunchroom Ltd. her salary was $899.52 per week. It becomes rather obvious that after this claimant left her husband, he continued to pay her and, based on past history, she anticipated receiving T-4's at the end of the fiscal year indicating that U.I. premiums and other withholdings had been complied with.

I have reviewed the observations submitted by the Commission to the Board of Referees. I am fully aware that, generally, no one from the Commission attends the hearing before the Board and that, in most cases, the referees attempt to be as fair as possible. However, in this particular case, I find that the manner in which the Commission drafted its submissions was prejudicial; the jurisprudence quoted was truncated and did not fully explain to these lay people the entire scope of the Federal Court of Appeal decision in A.G. of Canada v. Albrecht, [1985] 1 F.C. 623.

Though I am in agreement that the Albrecht decision supports the fact that Parliament intended strict observance of the rules with respect to applying for benefits, and this, in order to facilitate the work of the Commission, it nevertheless states that determining "good cause" for late filing "is not a question of fact and discretion but a question of fact and characterization. The issue is one of mixed fact and law." An Umpire can interfere in some circumstances with the decision rendered by a Board of Referees. This decision upheld the proposition that ignorance of the law is not "good cause" for delay but the circumstances of the case before me are different. Mr. Justice Marceau wrote the following:

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. This means that each case must be judged on its own facts and to this extent no clear and easily applicable principle exists; a partially subjective appreciation of the circumstances is involved which excludes the possibility of any exclusively objective test. I think, however, that this is what Parliament had in mind and, in my opinion, this is what justice requires.

The Court of Appeal concluded that what must be considered is what "would be expected of a reasonable person".

I cannot find fault with the conduct of Mrs. Easterbrook. The facts clearly indicate that she did what any other reasonable person would have done in the prevailing circumstances.

I hereby set aside the decision of the Board of Referees and allow the claimant the antedate she has sought.