CUB 36384A

IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given at
Montreal, Quebec, on March 7, 1995

DECISION

This is an appeal by the claimant from a decision of the Board of Referees which held he was not entitled to have his claim for benefits antedated as he had not proven that on each day between January 2, 1994, and October 5, 1994, he had good cause for the delay in making his claim.

Mr. Kay was laid off from his employment as vice-president of New Ventures Roofing of BPCO, A Division of Emco Inc. effective January 1, 1994. Upon his layoff he received severance pay in the amount of $89, 393.10, to be paid out in semi-monthly instalments from January 2, 1994, to February 28, 1995. Both the payroll officer at the claimant's place of employment as well as a professional counsellor who had been retained by the employer to assist Mr. Kay after his layoff, advised him that there was no need to make a claim for unemployment insurance benefits since he would not be entitled to receive them while in receipt of severance pay.

The claimant did apply for benefits on October 5, 1994, requesting that his claim for benefits be antedated to January 2, 1994, and stating the reason for his delay was the misinformation provided to him by his employer. The Commission refused the antedate request on the grounds that Mr. Kay's ignorance of the law did not constitute a valid reason for not applying for benefits sooner and he had therefore not shown good cause for the delay in making his claim. His subsequent appeal to a Board of Referees was dismissed.

I am allowing the claimant's appeal for the following reasons. The phrase "ignorance of the law is no excuse" can no longer he invoked as a general principle to dismiss appeals of this nature. In CUB 17192 (BO), Jerome, A.C.J., sitting as Umpire, elaborated on that concept as follows:

The principle that ignorance of the law is no excuse used to be the complete answer to a great many antedating claims and very often Commission and Boards of Referees required some evidence that the claimant was physically prevented from making a claim before extending the benefit of the antedating provisions. Fortunately, we now take a more enlightened view as expressed by Attorney General of Canada v. Albrecht, [1985] 1 F.C. 710 (FCA). Now, if a claimant has other valid reasons which may happen to include ignorance of his entitlement to benefits, he will still enjoy the benefit of the antedating provisions so long as he can demonstrate that he has acted in a reasonable manner to satisfy himself as to his rights and obligations under the Act.

Accordingly, what is required is that each case be examined on its own facts, using a partially subjective appreciation of the circumstances. In Hamilton v. Attorney General of Canada (1988), 91 NR 145, the Federal Court of Appeal held that what constitutes good cause is always a question of fact. In that case, Mahoney, J.A. quoting from the Court's decision in Attorney General of Canada v. Gauthier (A-1789-83, October 9, 1984) stated:

At the very least, in our view, good cause must also include circumstances in which it is reasonable for a claimant consciously to delay making a claim. The courts should not impose artificial impediments to a laudable restraint on the part of a claimant who reasonably delays making a claim for benefits.

There are situations where misinformation from third parties on whom it is reasonable for the claimant to rely, can affect a claimant's entitlement to benefits. A claimant, who has taken all reasonable steps to apprise himself of his eligibility, will be seen to have established "good cause" for delay, where his failure to apply for benefits sooner is the direct result of erroneous information from third parties. In CUB 10026, Reed J. made the following observations in this regard:

My understanding of the applicable law . . . is that the circumstances in which the principles of law is applicable, must be distinguished from circumstances in which delay is caused by misrepresentations of a third party made to the claimant. In my view, in order to qualify as good cause, the misrepresentations must have been made by a person on whom the claimant could reasonably be expected to rely. It is, obviously, not sufficient for the claimant to simply neglect to make enquiries or to rely on casual conversation with coworkers. . .

The statutory requirement . . . requires a claimant to show good cause for delay. In determining whether this test has been met, no higher conduct should be expected of a claimant than would be expected of a reasonable person. A reasonable person who made enquiries of an individual he or she has every reason to expect to be knowledgable in the field, such as a personnel director of a company or a relocation counsellor . . . would not consider it necessary to seek information directly from the Commission. The advisers in question hold themselves out as knowledgeable in the field. As I have said elsewhere, I can see no difference between the effect on a claimant of a misrepresentation by such a person and of a misrepresentation of an officer of the Commission. An it is to the claimant's conduct that the requirement of showing good cause for delay is directed.

In my view, that reasoning is applicable to the fact situation before me in the case at bar. Mr. Kay did not fail to apprise himself of his rights to unemployment insurance benefits and to that end acted on information given to him by third parties upon whom it was reasonable for him to rely. Under those circumstances, and given the relatively short period of delay which is involved here, I am satisfied that the claimant should be given the benefit of the antedate provisions and to do so would cause no prejudice to the proper administration of the Act.

For these reasons, the Board's decision is set aside and the claimant's appeal is allowed.