CUB 34339

IN THE MATTER OF the Unemployment Insurance Act

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IN THE MATTER OF a claim by Sandra TITERLE

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IN THE MATTER OF an appeal to an Umpire by the Claimant from a decision of the Board of Referees given at NEW WESTMINSTER, British Columbia, on September 22, 1994.

DECISION

REED J.

The claimant appeals a decision of the Board of Referees which refused to allow her to antedate her claim from the day it was filed, June 13, 1994, to May 13, 1994. The claimant was claiming maternity benefits. Her baby was born on May 13, 1994. She had left her employment on April 29, 1994.

Much of the discussion before the Board and in the Board's decision relates to the fact that the claimant had waited for her ROE before filing her claim. The Board finds that "a reasonable person would have enquired of the Commission and would have diligently pursued her employer for the Record of Employment". The Board referred to CUBs 11515 and 11844A and found the claimant did not have just cause for the delay.

There are several difficulties with the Board's decision. In the first place, it did not consider the extent to which delay in applying for special benefits may be more forgivable than is the case with regular benefits. The Commission suffers no prejudice in the case of the former (see CUB 17899 Valenti (March 7, 1990) and CUB 19242 - Spurrell (February 13, 1991).

Secondly, the Board did not consider the date of the birth of her child (May 13, 1994) and the extent to which delay from that date forward could be excused by reason of the birth itself. I note also that the claimant developed health problems as a result of giving birth. The Board was told of the date of the birth of the child but did not refer to it in its reasons. A.G. Canada v. Richardson (A-596-91, October 7, 1992) sets out the general principles to be applied in antedate cases.

Lastly, the Board refers to CUB 11515. A passage from that decision is set out in the Commission' Observations to the Board, as support for its decision. The passage quoted in the Commission's Observations reads in part:

The delay in the claimant's case was a month. In addition the decision in CUB 11515 did not relate to special benefits. That comment supports the claimant's position not the reverse.

In my view, the Board erred in law and made a decision without regard to the material before it. The decision is set aside. I will exercise my jurisdiction to render the decision the Board should have made.

The period of delay was not long - one month. For that period the physical fatigue and need to care for a newborn could justify delay. There is no prejudice arising to the Commission from the delay. The claimant did make enquiries about obtaining her ROE (once on April 29, again on May 18 and lastly on May 25). While she had on a previous occasion received maternity benefits, the circumstances surrounding that claim were not such as to alert her to the fact that she could lose benefits if she did not apply before or on the date of the birth of her child. In the circumstances she has demonstrated that there was good cause for her delay. The Commission's decision is therefore set aside and the antedate allowed.

OTTAWA, Ontario

July 19, 1996.