TRANSLATION
IN THE MATTER OF THE Unemployment Insurance Act
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IN THE MATTER of a claim for benefit by
Monique CHAMBERLAND
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IN THE MATTER of an appeal to the Umpire by the
Claimant from the decision of a Board of Referees
given at Hull, Quebec on September 4, 1996.
DECISION
JOYAL, J.:
This is an appeal from the decision of the Board of Referees, which found that the claimant had not submitted good cause for her delay in making her initial benefit claim, as is required under section 9(4) of the Unemployment Insurance Act ("the Act"). Moreover, the Board noted that the claimant had not accumulated enough insurable weeks to receive benefits.
The facts:
The facts in the present case are very simple. The claimant left her employment with the Federal Public Service on July 19, 1995, after being offered an Early Departure Incentive (EDI). At that time, she received severance pay of $11,401.41 and a lump sum payment of $37,767.17.
On April 26, 1996, the claimant filed a claim for unemployment insurance benefits. On July 8, 1996, the Commission notified her that she was not entitled to benefit because she had not submitted a reason that could justify her delay in filing her claim and could allow her claim to be antedated. The claimant appealed this decision to the Board of Referees.
For its part, the Board of Referees noted that the claimant had only 11 insurable weeks in the 52 weeks preceding her claim, while a minimum of 17 weeks was required. In its conclusion, the Board emphasized that the claimant had a responsibility to inform herself of her rights with the Commission, and dismissed the appeal.
The claimant is now appealing this decision to the Umpire, alleging that the Board of Referees committed an error in fact and in law in finding that she had not produced good reasons to justify her delay in filing her benefit claim.
Section 9(4) of the Act:
Section 9(4) of the Act establishes two essential conditions for antedating, namely:
1. The claimant was qualified to make a claim on the date to which the antedating is requested.
2. The claimant had good cause for the delay in filing the initial benefit claim.
Section 9(4) reads as follows:
9.(4) Where a claimant makes an initial claim for benefit after the date when the claimant was first qualified to make the claim, it shall be regarded as having been made on an earlier day if the claimant shows that the claimant qualified to receive benefit on the earlier day and that there was good cause for the delay throughout the period commencing on the earlier day and ending on the day when the initial claim was made.
Analysis:
The purpose of subsection 9(4) of the Act is to ensure the sound administration of the Unemployment Insurance Program and the Commission's efficient, continual monitoring of the eligibility of claimants. In many cases, antedating has the effect of establishing retroactive payment of benefits without it being possible to verify the availability of the claimant for the period in question. For this reason, antedating must remain an exceptional measure.
For its part, the Court has rejected a strict interpretation of the wording of this subsection, which allows antedating of a claim only if "good cause for the delay" is shown. Following the decision of the Court of Appeal in Albrecht, 1 the criterion of the reasonable man or sensible person is recognized as the test to be applied in such cases.
According to recent case law, 2 good faith and ignorance of the law do not in themselves constitute good cause, but do not exclude the possibility of good cause if it is proved that a reasonable person would have acted in a similar way in the same circumstances. It is also recognized that erroneous information provided by an employer may have a determining affect on the assessment of reasons for a delay. 3
In the case at bar, the claimant alleges, in a letter dated July 15, 1996, 4 that she was notified by her employer that she was not entitled to benefit during the period covered by her Early Departure Incentive, namely one year plus vacation time. This information does not have the character of an erroneous legal opinion, since the claimant was not in fact entitled to benefit.
Did the claimant act as a responsible person would have done when she relied upon the information provided by her employer, the federal government? Must we expect a claimant to show excessive skepticism? It seems to me that when an employer provides information concerning the terms and conditions surrounding loss of employment and access to unemployment insurance, it is entirely reasonable to believe that the information is given in knowledge of the facts and with no intent to mislead the person to whom the information is given.
It is acknowledged that during a long career in the Public Service, the claimant did not have any experience with the Unemployment Insurance program. The information on which she relied came from her employer, which was no doubt familiar with the operation of the system. Moreover, it is obvious that the information was true, since the claimant was not entitled to benefit for the period covered by her EDI. Would it not have been a useless procedure to make a benefit claim anyway? What person would not have acted as the claimant did? In this respect, I subscribe to the colourful description of my colleague, Muldoon J., in CUB 11100, where he writes:
Now, a reasonable person is not an anxiety-ridden paranoiac who doubts or disbelieves an apparently authoritative word of advice to the point of seeking to verify that advice again and again, daily or periodically, lest the advice be erroneous. A reasonable person, being initially justified in accepting that apparently authoritative advice, naturally continues to accept it day by day unless or until its error or untrustworthiness is brought to his attention.
It should be added that the question as to whether there is "good cause for the delay" is a mixed question of fact and law. When an Umpire examines the findings of the Board of Referees, he may challenge the meaning that the Board has given to this phrase, because an interpretation of law is involved. In this regard, I quote Marceau J. in Albrecht: 5
As I see it, the decision as to whether there was "good cause" is not a question of fact and udiscretion but a question of fact and characterization. The issue is one of mixed fact and law. Nowhere does the Umpire disagree with the pure findings of fact of the Board, she accepts them all; what she disputes, in effect, is the meaning given by the Board the words "good cause" as used in the Act. The construction of a statute is involved and that, of course, is a question of law.
Prejudice:
In the present case, I find it difficult to see what prejudice the Commission would suffer if the antedating were permitted. The severance pay, the lump sum amount and the service allowance are regarded as earnings under section 57 of the Unemployment Insurance Regulations. Consequently, in July 1995, the claimant did not satisfy the definition of interruption of earnings as given in section 6 of the Act.
If the Commission allowed retroactive filing of the initial claim, the only remedy offered the claimant, given that she had received the severance pay, would be that provided for in subsections 7(3), 7(4)(b) and 9(7)(b) of the Act. These subsections read as follows:
7(3) Where a person proves in such manner as the Commission may direct that for any week during any qualifying period mentioned in paragraph (1)(a) that person was prevented from establishing an interruption of earnings by virtue of the allocation, pursuant to regulations made under section 44, of earnings paid to that person by reason of the complete severance of the relationship between that person and his former employer, the qualifying period shall, for the purposes of this section, be extended by the aggregate of those weeks.
7(4) Where a person proves in such manner as the Commission may direct that
[...]
(b) for any week during any extension of a qualifying period referred to in subsection (3) that person had earnings paid to him by reason of the complete severance of the relationship between that person and his former employer, that qualifying period shall, for the purposes of this section, be further extended by the aggregate of those weeks.
9(7) Where a benefit period has been established in respect of a claimant who proves in such manner as the Commission may direct that for any week during that benefit period the claimant was not entitled to benefit by reason of being
[...]
(b) in receipt of earnings paid by reason of the complete severance of the relationship between the claimant and the claimant's former employer,
[...]
that benefit period shall be extended by the aggregate of any of those weeks.
Consequently, the Commission could, under the conditions it establishes, extend the claimant's qualifying period without having to pay her any benefit. The Commission may therefore not claim that in the case at bar, it would suffer a prejudice. The claimant's severance pay, which covers a period of approximately 52 weeks, would only offer her the opportunity to apply for extension of her qualifying period. If the antedating were granted, the Commission would not have to assume retroactive payment of benefits without having the opportunity to verify the claimant's eligibility.
Conclusion:
I conclude from the foregoing that the Board of Referees committed an error in law in finding that the claimant had not submitted good cause for her delay in filing her initial benefit claim.
The claimant's appeal is therefore allowed, the decision of the Board of Referees is quashed, and I declare that the claimant is entitled to produce her benefit claim outside the time limits stipulated in the Act.
L-MARCEL JOYAL
UMPIRE
OTTAWA, Ontario
February 5, 1998
1 Attorney General of Canada v. Albrecht, [1985] 1 F.C. 710.
4 See Exhibit 8 on the record.
5 Attorney General of Canada v. Albrecht, [1985] 1 F.C. 710, p. 715.
2011-01-10