IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
SHARON MACFARLANE
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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 30th day of September, 1998
at Hull, in the Province of Quebec
DECISION
MULLEN J.:
The Claimant appeals the unanimous decision of Board of Referees, which reads as follows:
In its 12 August 1998 decision, the Commission stated that the Claimant could not start receiving her benefits dated from 27 December 1996, because she could not show, that between 27 December 1996 and 21 July 1998, she had good cause in applying late for benefits.
In her defence, the Claimant stated that she had not received her Employment Record until she had been told by a Commission Representative to obtain one from her employer, when she called the Commission in July 1998. She then called her employer and obtained her Employment Record, which is dated 9 July 1998 (Ex. 3).
Although the Claimant had not received her Employment Record in good time from her employer, she still felt that she could not, in all justice, apply for employment benefits until a period of 18 months after having left her employment, because of the lump sum payment she had received, the equivalent of 18 months' salary.
The members of the Board are aware of Section 10 of the Act and of both the Larouche and Albrecht decisions and, following, agree unanimously with the Commission's decision.
In the Waldemar Albrecht decision, in the Federal Court of Appeal, Marceau J. in giving judgment for the Court stated as follows:
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 city "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.
Sure a reasonable person would assume that application for benefits should be made when the benefits are available to the Claimant, and not, as in this case, a year and a half before the benefits are available.
Under these circumstances, I am satisfied that the Claimant had good cause within the meaning of S. 10(4) of the Act. This matter is directed back to the Commission to take the appropriate action.
The appeal allowed.
J. A. Mullen
UMPIRE
Ottawa, Ontario
August 17, 1999