IN THE MATTER OF THE UNEMPLOYMENT INSURANCE ACT
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IN THE MATTER OF a claim for benefit by
RAFIG ROKERYA
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IN THE MATTER of an appeal to the Umpire by the claimant
from a decision by the Board of Referees given at
Toronto, Ontario, on February 26, 1993.
DECISION
WALSH, J.
In this case the issues before the Board of Referees were whether an antedate could be granted to September 1, 1991 because no good cause for the delay was established from September 1, 1991 to July 24, 1992, and also whether claimant was entitled to benefits because he could not obtain an ROE from his former employer. Both disentitlements were imposed on October 23, 1992.
Extensive written submissions were in the Record. The facts indicate that he had stopped work on June 14, 1991 but did not apply for parental benefits, which is what is in issue, until July 22, 1992.
Claimant had been an auditor for Revenue Canada from March 30, 1987 to June 14, 1991. He was given personal needs leave without pay from September 3, 1991 to December 1, 1991 having been on paid vacation leave from June 18 to August 30, 1991.
On May 9, 1991 he had applied for paternity leave from his employer under the collective bargaining agreement which was denied. (This must not be confused with parental leave under the Unemployment Insurance Act.) He then applied for and took the above-mentioned vacation leave, and personal needs leave from September 3 to December 1, 1991.
His reason was that his wife gave birth to a child by Caesarean section on June 7, 1991 but there were complications leaving her with post partem depression and much suffering. Home care was provided for her by visiting nurses. On July 20, 1991 he took her and her family to Singapore to be with his in laws. He did not try to file a claim from there. Unfortunately, he himself became seriously-ill there, returning to Canada on December 2, 1991 and resuming his work on December 2.
There is no dispute about any of this, It was only in June 1992 that in talking to a colleague that he was informed that due to changes in the UIC Act he might have qualified for parental benefits. These changes were made in November 1990 and were well publicized. When he learned that he might be eligible for them he acted promptly, filing his claim and request for an antedate on July 24, 1992.
His ROE was mailed to him when he was out of the country and when he returned in November he was seriously ill so he states no claim could have been made by him at that time even if he had known of the section of the law in question.
Since the Albrecht case (1985-1, F.C. 710) ignorance of the law may be excused if a claimant has acted as a reasonable person would, so the facts in each case must be considered.
Claimant relies on the decision of Madame Justice Reed in CUB 16667 in which she quotes extensively from the decision of Justice Joyal in CUB 12027 (Flanders) where ignorance of the existence of medical benefits was used as an excuse for a long delay in claiming. When he went to the Commission office and obtained the necessary forms he then filed them promptly, asking for an antedate. It was also argued that the delay in making the claim did not prejudice the functioning of the unemployment insurance system and the Commission representative agreed that but for the delay the claim would have been allowed. Justice Joyal listed considerations to be applied, including prompt action when he learned of his rights, and the fact that when the claim is for a finite and easily determinable period the requirements of timely claims are not so severe.
Madame Justice Reed agreed with this decision, pointing out that when there is no requirement on a claimant to prove availability there is not the same potential for prejudice to the Commission as is the case with a claim for regular benefits.
In CUB 14019 Justice Joyal again considered lack of knowledge of the availability of sickness benefits and therefore not immediately claiming them as what a reasonable person might have done and hence excused ignorance of the law.
It appears to me that this is even more true of lack of knowledge by claimant of his right to parental benefits, a relatively recent provision of the law in its extension to a male parent. He very clearly had the right to them had he applied at the time as the child required parental care which the mother could not provide. They would be for a finite period of 10 weeks.
While he did not have just cause during the entire period between the date from which the antedate was sought and his application for it, being of his own volition out of the country, the delay in receiving his ROE does not appear to be pertinent. He was not seeking regular benefits but benefits of a special sort parental benefits.
Reference might also be made to the decision of Justice Strayer in CUB 11094 in which however the delay was only 6 weeks (much shorter than in the present case). In that case as in the present one, claimant had been ill for part of the 6 week period and had no previous knowledge of the system. Justice Straver stated:
"I fail to see how a delay of some six weeks in making a claim can in the circumstances of this case represent a serious prejudice to the Commission and I find it somewhat deplorable that the appeal processes of both the Board of Referees and the Umpire must be burdened with this kid of restrictive interpretation by the Commission of the Act and Regulations."
In CUB 12401 Justice Teitelbaum stated:
"I am of the view that it is the Commission's obligation to follow the law but to do everything in its power to allow individuals to file for benefits if they are entitled to them.
Technicalities should'nt be used as an excuse to prevent an individual from obtaining benefits if he or she would otherwise be entitled to them."
I am inclined to agree with these decisions on the facts of the case, which is one of the necessarily rare cases where although ignorance of the law is not per se a valid excuse for delay, such ignorance accompanied by facts indicating that claimant had acted as a reasonable person would under his particular circumstances may constitute "just cause".
I conclude therefore that the decision of the Board of Referees was erroneous in law by failing to apply correct jurisprudence to the facts, and also in its appreciation of some of the pertinent facts, claimant's original application to his employer for parental leave and dismissal of his grievance for not being allowed it having no bearing on his rights under the Unemployment Insurance Act. His delay in applying for parental benefits under the Act was not because of his awaiting a decision on the grievance but because of his ignorance of the fact that he might be entitled to them.
I therefore maintain the appeal and render the decision which I believe the Board should have. I grant the antedate sought to September 1, 1991 for appellant to apply for parental benefits from that date.
J. Walsh
UMPIRE
OTTAWA, Ontario
November 22, 1994