CUB 47897

IN THE MATTER OF an appeal to an Umpire by the Claimant
from a decision of the Board of Referees given at Belleville, Ontario
on May 13, 1999

DECISION

[1] The appellant moved from Canada to the United States in November of 1998. He moved to the Washington, D.C. area, following his wife who had a new job in that area. From his submissions, he left his employer in the Ottawa area on a Friday and moved that weekend. He expected that it would be relatively easy getting work, but was surprised to discover that this was not the case. Most of the work in his field in the Washington, D.C. area is in the defence industry, and he encountered difficulty because he is not a U.S. citizen.

[2] In December of 1998, the appellant presented himself at the office of the Virginia Employment Commission, hoping that he might be eligible for unemployment benefits. He was told he was not eligible because he had never worked in Virginia. Some months later, in March, he again went to the employment commission and, this time, was informed by an employee there that while he was not eligible for unemployment benefits in Virginia, he was likely covered under the Canadian unemployment insurance programme. The appellant promptly applied for benefits in Canada and was told that he was eligible. He asked that his benefits be made retroactive to the date his employment ended, in November of 1998. This was denied, as the insurance agent wrote in a letter of April 6, 1999:

This is because you did not show us that between November 2, 1998 and March 13, 1999 you had good cause in applying late for benefits. However, we have started your claim, effective March 14, 1999.

[3] The appellant appealed the back-dating portion of the decision because he submits he reasonably believed that Employment Insurance, like his Ontario car insurance and provincial medical coverage, does not travel and cannot be taken advantage of when he ceases to be a Canadian resident. He further says that he made inquiries with the Virginia Employment Commission in December and was not told that he should look into Canadian benefits. When he was so informed in March of 1999, he immediately took steps to apply.

[4] The appellant's appeal was heard by a Board of Referees on May 13, 1999. He was not able to appear in person, but made representations by teleconference. The Board of Referees unanimously denied his appeal, concluding:

.. that the Appellant did not have good cause in applying late for benefits between November 2, 1998 and March 13, 1999. A reasonable person in his situation would have sought out his rights and obligations before leaving Canada. The jurisprudence bears out that the ignorance of the law is not a good cause for applying late for benefits. Upon careful consideration of the facts of this case, the Board could find no error in the Commission's findings.

Decision: The Appellant's appeal is dismissed.

[5] Mr. Castell now appeals the decision of the Board of Referees, on the basis of the record and the tape of the hearing before the Board. Appeals to the Umpire are provided for under section 115 of the Employment Insurance Act, S.C. 1996, c. 23. That same section limits the grounds of appeal to three. The specific ground relied on by the appellant, Mr. Castell, is contained at paragraph 115(2)(c):

(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

c) le conseil arbitral a fondé sa décision ou son ordonnance sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments portés à sa connaissance.

In short, the appellant says that the Board of Referees erred when it decided that he did not have a good cause for applying late for benefits, in particular in relation to the period from January 1, 1999, when he would have been eligible for benefits if he had been properly advised at the time he made enquiries in December 1998 at the Virginia employment office.

[6] In order to overturn the decision of the Board of Referees, an Umpire must find that the Board arrived at its decision in a perverse or capricious manner, or without regard to the evidence. Because the Employment Insurance Act only provides for these very limited grounds of appeal, I could not grant the appeal unless the Board made an error of the type included in subsection 115(2) of the Act even if I disagreed with the Board. In short, without such an error, I cannot substitute my conclusions for theirs, or for that of the Commission.

[7] The appellant, however, is assisted by the Commission. In its representations in this appeal, it indicates that further review of the case following the decision of the Board of Referees has led to the conclusion that the appellant did have good cause for the delay following January 1, 1999. This is because the appellant did make enquiries of the Virginia Employment Commission in December of 1998, but was not then informed of the option of applying for Canadian benefits. He made a reasonable effort and was, in essence, misinformed by an employee there. For the period prior to January 1, 1999, the Commission maintains, in agreement with the Board of Referees, that he did not have good reason for not applying for benefits. Until the December trip to the Virginia Employment Commission, the appellant did not make any efforts to inquire about the availability of unemployment insurance benefits.

[8] On the basis of the Commission's concession regarding the period after January 1, 1999, I concur that the appellant did make reasonable efforts to find out about his eligibility and his benefits should therefore be back-dated to January 1, 1999. As for the period prior to January 1, 1999, I cannot conclude that the Board of Referees made a reversible error under the Employment Insurance Act. The evidence and the record do not disclose that the appellant made reasonable efforts in the November - December period.

[9] The appellant's appeal is allowed, in part, and any benefit period shall be back-dated to January 1, 1999.