IN THE MATTER OF the Unemployment Insurance Act, 1971
- and -
IN THE MATTER OF a claim for benefit by
Paulette PARK
- and -
IN THE MATTER OF an appeal to an Umpire by the
Commission from a decision of the Board of Referees given
at Corner Brook, Nfld., on September 10, 1992.
CORRESPONDING FEDERAL COURT DECISION: A-706-94
DECISION
JOYAL J.:
This is an appeal by the Canada Employment and Immigration Commission from a Board of Referees decision allowing the anti-dating of the claimant's benefit application by finding that the claimant had established good cause for the delay.
The grounds for appeal raised by the Commission are that firstly, the Board erred in law and made an erroneous finding of fact when it ruled as it did; secondly, that the Board did not comply with the requirements of s. 79(2) of the Unemployment Insurance Act when it failed to list the facts on which it relied in reaching its decision; and thirdly, that the Board failed to indicate that "throughout the whole period", the claimant had good reason for the delay in making her claim.
I will readily admit that upon examining the Board of Referees' decision with a critical eye, the grounds advanced by the Commission have some merit. "Just cause" for delay in applying for benefits is not easy to establish, all the more so when "just cause" must apply throughout the whole period of the delay.
Similarly, s. 79(2) of the Act does impose on a Board of Referees a requirement that its decision shall include a statement of the findings of the Board on questions of fact material to the decision. This means that when, on a reading of a Board decision, there is complete silence as to what grounds the Board relied on, the decision may be quashed.
Dealing first with the s. 79(2) requirement, one must avoid reading a Board's decision microscopically in an effort to find one or more flaw in it. As the Supreme Court of Canada has often said, persons appointed to quasi-judicial boards are not necessarily experts in draftsmanship, nor are they expected to be conscious of all the subtleties of interpretation which a particular word or expression might provoke. If such should be the restraint, it follows that a decision must be read as a whole and when a matter is ambiguous or vague, reference may be made to the whole record in order to give a proper or more common sense reasoning to what the Board was attempting to say.
I should find in that respect that upon a reading of the whole of the Board's decision, there are sufficient references to the material facts in issue to fill whatever gaps might otherwise be found in its findings. In the circumstances, there is sufficient compliance with the requirements of s. 79(2) that I should not disturb the Board's decision.
The issue of an error of law as alleged by the Commission is, in a sense, a corollary of the other issue. It is evident, on the basis of established jurisprudence, that good cause for delay must be shown and that ignorance of the law is not determinative of just cause. On the evidence, however, it is clear that the claimant's delays were not by reason of her ignorance of the law but by reason of her belief, mistaken though it may be, that under the law she did not have sufficient insurable weeks of employment to qualify for benefits. If the current test in such matters is that of what a reasonable person might have done, it is apparent that anyone holding such a mistaken belief, and living in a family which had never been involved in unemployment insurance claims, might be deemed to have acted reasonably by applying only when the mistake was made known. As my colleague Muldoon J. once put it, the scheme of unemployment insurance should not presume that one be paranoid about would-be claimants and think that they get up every morning with all the tricks of the Act forever bubbling in their consciousness.
Admittedly, establishing just cause is always a dicey issue and full consistency in applying it to particular cases is relatively impossible to achieve. All I can suggest in the case before me is that in looking at the facts and the grounds alleged by the claimant, the Board concluded that just cause had been established. In so doing, I fail to see the kind of error which would justify my intervention.
Finally, on the question of the Board's decision being silent as to just cause having been established throughout the whole period of the delays, I see no merit in that submission. The grounds for delay are of a nature that it is obvious those same grounds existed through the period in question.
The Commission's appeal must therefore be dismissed.
L-Marcel Joyal
UMPIRE
OTTAWA (Ontario)
August 31, 1994.