CUB 35066

IN THE MATTER OF an application to an umpire by Erin M. RETTIE, claimant, for review of the decision of the board of referees (NW 600), rendered in
New Westminster, British Columbia, on July 31, 1995.

DECISION

The claimant, Erin M. Rettie, applies for rescission of the decision of the board of referees made July 31, 1995. The referees reversed the decision of the Commission and unanimously upheld the claimant's appeal. The claimant appealed to the umpire on the ground that the referees did not correctly antedate her claim. The claimant requested that her appeal to the umpire be decided on the record. In response the Commission requested that the decision be sent back to a newly constituted board. The claimant was employed as a caterer with B.C. Ferries until June 24, 1994, when she was unable to continue working because of a back injury incurred on September 3, 1993. The Worker's Compensation Board (WCB) was slow in processing her claim. In February 1995 she found out that the hearing date for the WCB claim was on August 15, 1995. In March 1995 the claimant was advised by her union representative to seek Unemployment Insurance. Prior to this she was under the false impression from the WCB that she need not seek benefits elsewhere. The Commission allowed her a benefit period starting April 2, 1995. Benefits dating from June 24, 1994 were denied because the claimant allegedly did not show good cause for delay in her application under section 9 of the Unemployment Insurance Act, R.S.C. 1985, Chap. U-1 (the Act). The claimant unsuccessfully applied to antedate the claim to June 24, 1994. On appeal to the board of referees, her claim was allowed to be antedated to March 1, 1995, which was the day she was available for work.

The issue before the umpire is whether the referees committed a reviewable error when it antedated her claim to March 1, 1995. The

Commission's submission that the referees did not consider the reasons for the delayed application and therefore committed an error of law pursuant to section 80(b) of the Unemployment Insurance Act is untenable. The referees' reasons for decision specifically discuss the cause for delay: she was awaiting the outcome of her WCB appeal and was relying on misleading information from the WCB, a third party. This is in line with jurisprudence which states that while ignorance of the law, in and of itself, is not an excuse¹, it will not preclude eligibility for antedating if the claimant demonstrated good cause by acting as any reasonably prudent person would in the same circumstances (Canada (A. G.) v. Smith, (A-549-92) (April 11, 1994) (F.C/A); Canada (A.G.) v. Caron, (1986) 69 N.R. 132 (F.C/A)). Here, for the reasons given above, the board found that the claimant did what a reasonable person would have done in her situation. In drawing this conclusion the referees committed no reviewable error.

To determine whether an application for antedating should be allowed, section 9(4) of the Act requires both "good cause for the delay" and that "the claimant qualified to receive benefit on the earlier day". Having found that the claimant had good cause, the board antedated her claim to March 1, 1995, which was the day she was available for work. On its face, this is a common sense decision: the claimant should be able to collect WCB benefits for the period she was unable to work due to injury. This, however, presupposes that the claimant's WCB appeal would be successful. There is no evidence in the record that indicates that at the time of appeal the claimant had received any benefits from the WCB. Further, the Federal Court of Appeal has held that availability for work had nothing at all to do with antedating in Hamilton v. Canada (A.G.), (A-175-87) (March 25, 1988) (F.C./A). So, common sense is undermined by reality, legislation and jurisprudence.

The referees should have gone on to examine whether the claimant "qualified to receive benefit on the earlier day" (subsection 9(4) of the Act). Subsection 9(1) of the Act states that the benefit period begins the later of (a) when the interruption of earnings occurs, or (b) when the initial application for benefits is made. As the application for antedating under subsection 9(4) was allowed by the referees, the latter part, (b), must be ignored. It follows that the benefit period should be the date the claimant's earnings were interrupted. The interruption occurred on June 24, 1994, the day of her injury. This was the first day she was eligible for benefits. The Commission's submission to the umpire conceded that if there is to be any antedating at all June 25, 1994 would be the proper date.

To confirm this, section 14 of the Act states that a claimant will be excluded from receiving benefits for those days in the benefit period unless (a) the claimant was available, capable and unable to obtain work, or (b) incapable for work because of prescribed injury. Injury, as prescribed in subsection 47(6) of the Unemployment Insurance Regulations (C.R.C. 1978, Chap 1576) (the Regulations) is an injury which "renders the claimant incapable of performing the functions of the claimant's regular or usual employment or of other suitable employment". Subsection 47(1) of the Regulations provides that a medical certificate must be shown to the Commission. The claimant submitted a certificate from her doctor, exhibit 5, which stated that the claimant was totally disabled from any occupation until March 5, 1995. After that date she would not be able to return to her previous job or similar work but could be employed in another capacity.

The Commission's representations to the umpire betray a misunderstanding of the legislative provisions about "good cause for delay" in making a claim for UI benefits. Here are a couple of passages which evince that misunderstanding:

The Commission reviewed the claimant's reasons and adopted the view long support [sic] by jurisprudence that only a short delay is appropriate in cases where the claimant is expecting indemnity or compensation. In this case the delay of 40 weeks was deemed to be to [sic] long to amount to a good cause for delay as a reasonable person would have enquired sooner, Exhibit 4.

The claimant appealed the Commission's decision to the Board of Referees. The Board allowed the claimant's appeal, but only to the date she was again available for work, Exhibit 12. It is not clear in the decision what the Board's reasons were for picking this date. The Board refers to the claimant's availability but clearly the claimant was major attached and would have been entitled to sickness benefit from June 25, 1994 had the Board allowed the antedate to that date.

The Commission's position is that the Board should not have granted any period of antedate as the length of delay of 40 weeks is to [sic] long to provide good cause in these circumstances. The principles that were established in the Albrecht decision and upheld in the decision of D. Cipollone (CUB 18990) must be applied to this case.

While the meaning of "good cause" is a matter of law, its application to the circumstances of a case is the province of the referees, which a reviewing Court (or umpire) will not lightly invade.

The Court of Appeal has clearly repudiated the rigid definition of good cause in Hamilton v. A.G. of Canada, A-175-87, (March 25, 1988). Curiously, a different panel of judges is shown in each language version. Mr. Justice Mahoney for the Court is reported thus:

The learned Umpire correctly identified the issue as whether the Applicant had good cause to delay applying for benefit and, also correctly, held that availability for work had nothing at all to do with that. He dismissed the appeal on the basis that

Good cause consists of circumstances over which the individual has no control and which prevent that individual from making a claim at an earlier date.

With respect, that mis-states the law. The law requires only that there have been good cause for the delay. What constitutes good cause is always a question of fact. It is no part of the judicial function to formulate general rules that will inhibit a finding that a claimant had,in fact, good cause to delay applying for benefit.

So, "good cause for delay" is not a rigidly closed concept, but rather more flexible and circumstantial. After all, "it is to the claimant's conduct that the requirement of showing good cause for delay is directed" according to Marceau, J.A. in A.G. Canada v. Abrecht. Being so individualized with each case turning on its own individual circumstances, the Commission does not need to fear doom by open floodgates.

According to its written representations, above, the Commission believes that good cause, once established, can "rust" or dissolve if asserted "too long". Thus, it seems the good cause of a misinformed claimant can endure for a "short delay", but evaporates during a 40-week delay "deemed to be too long to amount to a good cause for delay as a reasonable person would have enquired sooner". The legislative text and the jurisprudence do not exact any such an illogical interpretation. Indeed the above cited Hamilton decision would reject any such fanciful rigidity.

If and when a claimant's being misinformed be good cause for delay, such good cause endures naturally and legally until it is displaced by correct information, as here when the claimant's union representative urged her to claim UI benefits. Once correctly informed, the claimant did apply for benefits with no undue delay.

The referees' decision to antedate the claim to March 1, 1995, the day the claimant was available for work, constitutes a reviewable error as they erred in law when they determined the date for the start of the benefit period (section 80(a). The "appeal" to an umpire is similar to an application for judicial review as the umpire can review only the decision of the referees and determine whether based on the information which was before them, the referees committed an error. It is not a trial de novo (Canada (A.G.) v. McCarthy, (1994) 174 N.R. 28 (F.C/A)); rather, the "appeal" allows the umpire to make the decision which ought to have been made by the referees. The Federal Court of Appeal has recently confirmed these powers in Morin v. Canada (Employment and Immigration Commission), (1996) 134 D.L.R. (4th) 724. For the reasons given above, the Board should have antedated the award for the claimant's benefits to June 25, 1994, the day after she was unable to work due to her injury, as the

Commission acknowledged. The claimant's application to the umpire is allowed and the Commission's request to refer the case back to a new board of referees denied.