CUB 37589

IN THE MATTER of an appeal to an Umpire by the claimant from a decision by the Board of Referees given at Mississauga, Ontario, on April 29, 1996

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 failed to establish he had good cause for the delay in filing his claim. An oral hearing was not requested and accordingly the matter will be disposed of on the basis of the record.

Mr. Milne was employed as a sales person with Base Electronics from November 14, 1994, to October 14, 1995. He filed an application for unemployment insurance benefits on February 27, 1996, approximately four and a half months after his last day worked. At the time he made his application, he requested that his claim be antedated to October 16, 1995. The claimant maintained that he had contacted the Commission in October of 1995, after his employment terminated, and had been advised that his claim for benefits could be backdated. He assumed therefore that he could file his application at a later date.

By notice dated March 14, 1996, the Commission advised Mr. Milne that his claim could not be antedated to October 16, 1995, as he failed to show that between October 16, 1995, and February 28, 1996, he had good cause for the delay in filing his application.

The claimant appealed to a Board of Referees which dismissed his appeal stating its reasons as follows:

The appellant indicated to the Board that he telephoned for information shortly after he was laid off in October 1995. The appellant stated that he was told that he could back date his application for benefits. The appellant was also told that he could receive his payments at a later date. The appellant chose not to apply for benefits until February 27, 1996. The Board noted that exhibit 3, the appellant's record of employment is dated February 20, 1996. The appellant could not give good cause for the delay of 4 1/2 months in applying for benefits.

The Board noted that the appellant stated in exhibit 4 that he had collected U.I. benefits in 1992 and did not realize that the application would have to be done immediately. The appellant could not explain to the Board why he had delayed for this extended period of time. The only excuse he could give was that he talked to someone on the phone in October 1995 who advised him that he could receive his benefits retroactively. The appellant also explained that he did not require the money as he had sufficient credit to sustain himself over a 4 1/2 month period.

The Board unanimously agrees that the appellant could not provide good cause for the delay in applying for benefits from october 14, 1995 to February 27, 1996.

Mr. Milne now appeals to an Umpire on the grounds that the Board made its decision without regard to the material before it, namely, that he had received erroneous information from a Commission official who advised him that his claim could be antedated. It was this information which the claimant maintains led to his delay in making his application for benefits.

The test for whether a claimant has shown "good cause" in failing to apply for benefits in a timely fashion is set out in the Federal Court of Appeal decision Attorney General Canada v. Caron (1986), 69 NR 132 at p. 134 as follows:

Only by demonstrating that he did what a reasonable and prudent person would have done in the same circumstances, either to clarify the situation regarding his employment or to determine his rights and obligations under the provisions of the Unemployment Insurance Act 1971, can a claimant, who failed to make his claim at the time he ceased to be employed and to receive a salary, establish a valid excuse for his delay and have his application considered retroactively.

Each case is to be examined on its own facts, using a partially subjective appreciation of the circumstances. In Hamilton v. Attorney General Canada (1988), 91 NR 145, the Court of Appeal held that what constitutes good cause is always a question of fact. In that case, the Court, quoting from its 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.

Clearly, there are situations where misinformation from the Commission, or its failure to provide information when it is required, 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 the Commission. In CUB 11100, the Umpire considered what is to be reasonably expected of a claimant who has been given information by a Commission official which resulted in the failure to file a claim for benefits within the time prescribed by the Act:

If he did accept that advice, as he claims, then the claimant "did what a reasonable person in his situation would have done to satisfy himself as to his rights and obligations under the Act",

A reasonable person, being initially justified in accepting that apparently authoritative advice, naturally continues to accept it unless or until its error or untrustworthiness be brought to his attention.

In my view, that is exactly what occurred in the present case. Mr. Milne contacted the Commission after his employment terminated and asked whether he could backdate his claim. The Commission does not dispute this fact. Neither does it dispute that the claimant was told it could be done. On the contrary, it maintains that this does not constitute misinformation since the answer to the claimant's question was obviously yes. However, what the Commission failed to tell Mr. Milne was that in order to have his claim antedated, he would have to establish that he had good cause for each and every day of the delay.

Under the circumstances, I am unable to conclude that the claimant failed to act as a reasonable and prudent person. When he was informed by a Commission official that his claim could be backdated, he relied on that information, as he had every right to do. He should not be required to bear the consequences of the Commission's deficient advise.

The Board of Referees made its decision without regard to the material before it. Its decision is therefore be set aside and the claimant's appeal is allowed.