CUB 33900A

IN THE MATTER OF an appeal by the Claimant from a
decision of the Board of Referees given on
November 22, 1994 at Mississauga, Ontario

DECISION

Mr. Stoate is just short of his 72nd birthday. He is a teacher. He retired in 1986. He taught again from 1990 to 1992.

Mr. Stoate knew that colleagues who had retired in 1985 had received unemployment insurance benefits. He knew that he had not been entitled to do so in 1986 because of a change in the law. That change had been effected on January 5, 1986 when amendments to section 57 of the Unemployment Insurance Relations were made. See SOR/86-58. Before that date income derived from retirement pensions was not considered as earnings for the purposes of determining whether an interruption of earnings had occurred and deductions from benefits. Since January 5, 1986 moneys paid to a claimant on account of a pension have been treated as earnings for those purposes.

So, when Mr. Stoate stopped working in 1992 he assumed, and had been told by his recent employer, that he was not entitled to benefits. He did not apply for them. What he did not know was that the regulations had been further amended effective April 5, 1987 to provide that if a claimant works long enough after pension payments have commenced and accumulates the minimum number of weeks of insurable employment in his circumstances to requalify for benefits, the pension is not considered as earnings to be deducted from benefits payable on a new claim. See SOR/87-188.

Mr. Stoate did not realize until October 1994 that he qualified for benefits in 1992. He then applied. The Commission said he could not have his claim antedated because he had not proved that on each day between June 30, 1992 and October 3, 1994 he had good cause for delay in making his claim. He appealed to the Board of Referees. In dismissing his appeal the Board said:

It is regrettable that the issue of this applicant's date of application hinges on advice given from someone who was not a UI commission employee. The Appeal Board recognizes that the Unemployment Insurance Act and process is unfamiliar to most people; however, the Board of Referees must agree that it is the obligation of applicants to seek out, to the best of their ability, accurate information. In this case, it seems to the Board that the reasonable thing for an applicant to do would be to approach and get information directly from the Commission.

In determining whether a claimant had good cause for delaying an application for benefits the test is whether he acted as a reasonable and prudent person would have done.

When, as here, a person has previously been denied benefits because his pension was considered earnings it is not unreasonable or imprudent for him to assume that the law is still the same. To say otherwise would mean that everyone in Mr. Stoate's position would have to go the Commission every time they stopped working and say, "I know the law didn't entitle me to benefits the last time I was here, but has the law changed?" That is not reasonable.

In my view the Board of Referees based its decision on an erroneous finding of fact that it made perversely and without regard for the material before it.