IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
ERIC McGAW
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IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given on
November 26, 1997, at Toronto, Ontario
DECISION
The Honourable E.J. Houston, Q.C.
This appeal was heard at the City of Toronto on October 7, 1998.
The appellant seeks to rescind the decision of the Board of Referees that he was late in filing for benefits and that he did not show good cause for being late. He filed a renewal claim for benefits on October 7, 1997.
The request for antedating the first part of the claim is not well founded even though the claimant was well motivated. He though that he was getting a good job and did not claim although he said that he thought that he had mailed in his cards.
In Exhibit 3-1, the claimant showed Employment History with the Etobicoke Board of Education from January 6, 1997 to June 26, 1997. In Exhibit 6, dated October 29, 1997, the claimant wrote to the Commission as follows:
I would like to appeal the decision to start my EI claim on September 28, 1997. I think the claim should begin when I became unemployed June 29, 1997. I did not realize I should file my claim immediately after becoming employed as I did not receive my ROE which indicates that one should file immediately until September 26, 1997.
Furthermore I would like to reactivate and review a prior claim which should have ended January 6 1997 but I stopped receiving cards for this claim long before this time and I never received any benefits for the period of unemployment.
I realize now that my whole attitude with respect to Employment Insurance has been misguided. When unemployed I have felt sort of guilty for being unemployed and so I have tried to avoid actually collecting benefits. My attitude with respect to employment insurance is that it should only be used as a last resort and that is why I did not reported my lay off right away. At the time I preferred to try to look for work without claiming EI. My thinking was that if I ran into financial problems it would be all right because I could always retroactively claim insurance for the time I was unemployed. I realize that this is a mistaken notion and would be the exception rather than the rule but I did not know this at the time or I would have gone in to one of your offices immediately after becoming unemployed.
I have been actively looking for work during the periods in question and I wish to retroactively receive EI benefits for these periods in question.
(underlining added)
Subsection 10(5) of the Employment Insurance Act says:
(5) A claim for benefits, other than an initial claim for benefits, made after the time prescribed for making the claim shall be regarded as having been made on an earlier day if the claimant shows there was good cause for the delay throughout the period beginning on the earlier day and ending on the day when the claim was made.
Mr. Justice Décary in Diane Larouche (A-644-93) said that the test is how a reasonable person would have acted in the circumstances.
Mr. Justice Marceau in Canada v. Albrecht, A-172-85, delivered the judgment of the Court of Appeal. In a learned discussion of the applicable law, he says at page 216, paragraph 3:
[3] Subsection (1) of s. 20 establishes the principles that the date of filing of an initial claim determines the date from which entitlement begins to run. The prompt filing of a claim was obviously seen by Parliament as a basic requirement for a proper administration of the system that was being set up by the Act. To understand why, it is sufficient to think of the investigations the Commission is called upon to make to confirm the validity of a claim. One, nevertheless, could hardly be oblivious to the fact that a strict application of the principle could impose on claimants pecuniary losses which would not always be fully justified for the sole purpose of facilitating administration. The object of s. 20(4) is, of course, to bring in some flexibility in the application of the principle. The antedating of a claim for benefits is made possible if the claimant is able to show "good cause" for his delay, a condition echoed by s. 39 of the Regulations where the "prescribed conditions" referred to in the Act are set out as follows:
39. An initial claim for benefit may be regarded as having been made on a day prior to the day on which it was actually made if the claimant proves that
(a) on the prior day he qualified, pursuant to s. 17 of the Act, to receive benefits; and
(b) throughout the whole period between that prior day and the day he made the claim he had good cause for the delay in making that claim.
After a discussion of "ignorance of the law" at page 217 in paragraph 13, the learned jurist says:
[13] The umpire in her reasons for judgment correctly reminds us that "it is to the claimant's conduct that the requirement of showing good cause for delay is directed". There is, indeed, an obligation which imports a duty of care required of a claimant and I readily agree that, to assure the prompt filing of claims, so important in the eyes of Parliament, that obligation and duty must be seen as being very demanding and strict. Of course, I have no doubt that it would be illusory for a claimant to cite "good cause" if his conduct could be attributed only to indifference or lack of concern. I readily agree, too, that it is not enough for him simply to rely on his good faith and his total unfamiliarity with the law. But an obligation, with its concomitant duty of care, can be demanding only to a point at which the requirements for its fulfilment become unreasonable. In my view, when a claimant has failed to file his claim in a timely way and his ignorance of the law is ultimately the reason for his failure, he ought to be able to satisfy the requirement of having "good cause", when he is able to show that he did what a reasonable person in his situation would have done to satisfy himself as to his rights and obligations under the Act. This means that each case must be judged on its own facts and to this extent no clear and easily applicable principle exists; a partially subjective appreciation of the circumstances is involved which excludes the possibility of any exclusively objective test. I think, however, that this is what Parliament had in mind and, in my opinion, this is what justice requires.
In A. G. of Canada v. Caron, (1986) 69 N.R. 132 (F.C.A.) at page 134, the learned jurist says:
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 provision 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 concerning antedating claims must be judged on its own facts. As Mr. Justice Marceau said in paragraph 3 of Albrecht, "a strict application of the principle could impose on claimants pecuniary losses which would not always be justified for the 'sole purpose of facilitating administration'."
In this appeal (the second part of the request for antedate), there is no mischief to be looked at. the appellant had a perfectly legitimate claim. The object of the Employment Insurance Act is to help claimants who have legitimate claims and have not by some subterfuge tried to circumvent the provisions of the Act.
This Umpire has written on more than one occasion that employers should be required to notify employees who are eligible for benefits that they should apply right away. In this case, the employee (claimant) applied shortly after he received his Record of Employment with the admonition to file immediately contained thereon.
Reasonable is defined in the Pocket Oxford Dictionary, inter alia, as follows "sensible, moderate, not expecting too much".
The judgment of Madam Justice L'heureux-Dubé in which she calls for a generous interpretation of the Act, see C.E.I.C. v. Gagnon [1988] 2 S.C.R. 29 at page 37 is applicable as well as the history of the Unemployment Insurance Act in Hills v. Canada (A.G.) [1988] 1 S.C.R. 513. Miss Karen L. Rudner in her 1997 annotated Employment Insurance Statutes deals with purpose and operation of the Act at page 2.
The Courts have often softened the structures of Limitation Statutes for the purpose of allowing legitimate claims.
The Board erred in law in its decision. The claim of the appellant should be allowed from June 26, 1997 or the earliest day thereafter.
The appeal is allowed in part as set out above.
E. J. HOUSTON
Umpire
OTTAWA, Ontario
October 26, 1998