CUB 43320

IN THE MATTER OF the Employment Insurance Act;

- and -

IN THE MATTER OF an application to an umpire by LEONARD W.H. CHAN,
claimant, for review of the decision of the board of referees, rendered
in Etobicoke, Ontario, on November 28, 1996.

DECISION

Muldoon J.

The claimant, Leonard W.H. Chan, appeals the unanimous decision by the Board of Referees upholding the insurance officer's determination that the claimant was not entitled to have his claim for benefits antedated to 28 May 1996 as he had not established that throughout the period between 28 May 1996 and 16 August 1996 he had good cause for delay in making his claim, as required by subsection 10(4) of the Employment Insurance Act, S.C. 1996, Chap. 23 [hereinafter: the "Act"].

Facts

The facts are fairly straightforward. The claimant was employed as a general labourer with Manpower Temporary Services from 22 December 1995 until 27 May 1996. A benefit period was established effective 19 August 1996, the date on which the claimant filed his initial application for benefits. At this time, the claimant also filed an application to antedate his claim for benefits. His reason for delay in filing runs thus:

When I finished my last assignment with Manpower they told me that they are not busy right now and that they won't have anything for a couple of weeks. After two months I told them that if they don't have a job for me then they should give me my vacation pay and R.O.E. [record of employment]. Three weeks later they sent me my R.O.E. in the mail. Manpower is a temporary agency and I have always been looking for other jobs in between assignments-I just didn't know that they wouldn't be calling me back after the last assignment I worked for them.
(exhibit 5)

On 25 September 1996, after receiving report cards dating from the day he filed for benefits, the claimant wrote to the Commission requesting a written explanation as to why his benefits were not backdated, as well as information on how to lodge an appeal. In their reply, dated 1 October 1996, the Commission advised the claimant that he was not entitled to have his claim antedated to 28 May because he had not established that between that date and 16 August 1996 he had good cause for delay in applying for benefits, as required by the Act.

Board's Decision

The claimant appealed this decision to a board of referees which unanimously upheld the Commission's decision and dismissed the claimant's appeal. In their findings, the referees held:

The appellant said his claim [sic: was] filed late due to Manpower Temporary Agency (employer) delayed in submitting to him his R.O.E. After a two months wait, yet still actively looking for work he contacted his employer and asked them to send his R.O.E. He claimed three weeks later he received [sic: the] record, and that is when he submitted his application.

The appellant was on U.I. benefits in the past.

The Board is of the opinion that the appellant didn't do what a reasonable person should have done under these circumstances. He should have contacted his employer earlier in regards to the documents, ignorance is no excuse. The appellant was on U.I. benefits in the past and should have known better as to what his options were.
(exhibit 10-2)

The claimant now appeals to an umpire on the grounds set out in subsection 80(c) [now subsection 115(2)(c)], alleging that the referees based their decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before them.

Claimant's Submission

It is the claimant's position that his delay in applying for benefits was reasonable. After his last assignment with Manpower, he fully expected to receive a call for another assignment, although he had been told by the agency that they would have nothing for him for a couple of weeks. While waiting for a call that never came during the next two months, the claimant continued to look for work, albeit unsuccessfully (exhibit 13-3). The claimant states that during this time he was not waiting for his record of employment, a point about which he believes the referees to be mistaken. Finally, the claimant asks why the referees deemed it detrimental to his claim that he spent two months looking for work before filing for benefits (letter dated 3 February 1997).

Commission's Submission

The Commission submits that the referees made their decision in accordance with existing jurisprudence on the issue of antedating claims. Furthermore, the referees did consider that the claimant was available for employment during the impugned period of delay and that he waited until he had received his record of employment before filing his claim. After considering these facts, the referees concluded that the claimant did not act as a reasonable person would have in the same circumstances (exhibit 15-4).

Issue

The sole issue on this appeal is whether the claimant had good cause for delay in making his claim for benefits within the meaning of subsection 10(4) of the Act.

Analysis

Subsection 10(4) of the Act allows an initial claim for benefits to be regarded as having been made on an earlier day than the day on which it was actually made. To fall within the ambit of this subsection, the claimant bears the onus of showing good cause for each day of the delay in filing. Good cause has not been defined in the Act. Jurisprudence consistently holds that where it has been established that a claimant has done what a reasonable and prudent person would do in the same circumstances, good cause exists. In the seminal case of Attorney General of Canada v. Albrecht, [1985] 1 F. C. 710, Mr. Justice Marceau of the Federal Court of Appeal articulated the test in this manner:

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.

The cause of the delay, rather than the duration, forms the focus of the good cause inquiry; once good cause has been established for the period, it matters not how long that period may be: good cause does not rust (CUB 12995A).

Under the Act's scheme, entitlement to benefits begins after the initial claim is filed. The antedating exception, however, recognizes that in certain circumstances a claimant ought not to be deprived of benefits to which he is otherwise entitled if a good reason exists for the delay in filing a claim. The reason behind the operation of this section is often stated as "administrative efficiency purposes". The Commission, so the argument goes, could be prejudiced by late filings, and the whole administration of the Act would grind to a crushing halt under an anticipated avalanche of such claims.

Certainly, it is in a claimant's best interests to refrain from delaying his claim for benefits. Ideally, all claimants would be industriously engaged in filling out the appropriate forms on the first day on which they are qualified to seek benefits. In the real world, however, not every potential claimant responds to loss of employment with the zeal expected by the Act's administrators. Claimants do not exist for the Commission's sake: the Act and the Commission exist for the claimants. Indeed, claimants may have other seemingly more pressing concerns weighing on their minds at what is, quite often, a most stressful time. In CUB 12995A, the umpire pointed out,