In the Matter of the Employment Insurance Act,
S.C. 1996, c. 23
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In the Matter of a claim for unemployment benefits by
Oreste Infusino
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In the Matter of an Appeal by the Claimant
from the decision of a Board of Referees given
at North York, Ontario on September 3, 1998
Appeal heard at Toronto, Ontario on November 25, 1999
DECISION
R. C. STEVENSON, UMPIRE:
Mr. Infusino appeals from the decision of a Board of Referees dismissing his appeal from the Commission's refusal to antedate his claim for unemployment benefits from February 14, 1998 to September 1, 1996.
Subsection 10(4) of the Employment Insurance Act provides:
An initial claim for benefits made after the day when the claimant was first qualified to make the claim shall be regarded as having been made on an earlier day if the claimant shows that the claimant qualified to receive benefits on the earlier day and that there was good cause for the delay throughout the period beginning on the earlier day and ending on the day when the initial claim was made.
The Commission said Mr. Infusino did not show that between September 1, 1996 and February 14, 1998 he had "good cause in applying late for benefits." For the purposes of this appeal I assume that Mr. Infusino had shown that he met the other condition, i.e. that he qualified to receive benefits on September 1, 1996.
In its decision the Board of Referees said:
The appellants reason for delay are (sic) that he was not aware that he had the right to apply and it was not until his friend told him to apply that he did file.
The appellant's circumstances were not exceptional and that (sic) he has not shown that his personal decision not to apply or his failure to enquirer (sic) as to these rights was justification for his reasons for delay.
At the hearing of the present appeal I requested the recording of the hearing before the Board and I have only now received and listened to it. While several minutes of the recording are inaudible, Mr. Infusino clearly testified before the Board of Referees that, at or about the time he retired from his employment with the Toronto Transit Commission on August 30, 1996, he went to a C.E.I.C. office and inquired as to whether he was entitled to receive unemployment benefits. The Commission employee with whom he spoke asked him if had quit or been fired. He said he had quit. The Commission employee told him that if he quit he could not receive benefits. When a friend later told him he should file an application, he did so.
This is not a case where the claimant failed to make inquiries. It is a case where the Commission gave the claimant incorrect information. Mr. Infusino did what a reasonable person would have done. He had received benefits several years earlier during a temporary lay-off so he had some experience with the system. Mr. Infusino is an Italian immigrant and speaks English with a strong accent. There may have been a communication problem between him and the Commission agent but that does not negate the fact that he did inquire. One who inquires and gets incorrect information cannot be faulted for not pursuing the matter.
The Board of Referees based its decision on an erroneous finding of fact that it made without regard for the material and evidence before it.
The appeal is allowed and Mr. Infusino's claim will be regarded as having been made on September 1, 1996.
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Umpire
FREDERICTON, NEW BRUNSWICK
February 4, 2000