IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
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in the matter of a claim for benefit by
ROSS WHALEN
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IN THE MATTER of an appeal by the claimant from a decision of a Board of Referees
given at Saint John, N. B., on the 4th day of May, 2000.
D E C I S I O N
Hon. David G. Riche
The evidence before the Board was that Mr. Whalen appeared before the Board of Referees who considered the presentation made and the appeal docket in order to arrive at their decision. The claimant stated that he was under suspension in 1995 and was of the opinion there was nothing he could do until the suspension was lifted. He worked in 1995 and 1996 for Hydraulic Unlimited and created a new record of employment. He did not report this new information to the Commission.
The Board found for the majority that they accepted the Commission's evidence as fact the claimant should have notified the Commission about his new record of employment as per the request letter of June 6, 1995 (Exhibit 7-3). The majority of the Board found that the claimant did not show good cause in applying late for benefits between November 22, 1996 and February 28, 2000 as per Section 10 of the El Act.
The dissenting member of the Board stated that Mr. Whalen had been suspended by the Commission for a prior claim. He went on to say that the claim had run out and he felt that he could not receive benefits until his prior claim was dealt with. Mr. Whalen also stated that he was of the opinion that he couldn't file until the prior claim was completed to its final conclusion. The question put before the Board was what would a reasonable person do in this instance? The minority opinion was that the claimant believed he was doing what was proper in not applying for benefits until the prior claim was settled. In February 2000 the prior claim was settled at the Umpire's level and then the claimant filed a new claim.
I am inclined to approve the minority opinion in this matter. I have been referred to a decision of the Federal Court of Appeal in Larouche, A-644-93, CUB 23164, confirming an earlier decision of the Court, which held that when ignorance is the reason for the claimant's failure to file a timely claim, he ought to be 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. Justice Decary, on behalf of the Court, in Albrecht A-172-85, CUB 10026, stated:
The precedents of this Court are clear: good faith and ignorance of the law do not in themselves excuse a failure to comply with a legislative requirement; a belated claimant must still show that she acted as a reasonable person in the same situation would have done to protect the rights and obligations imposed on her by the Act.
I am satisfied in this particular case that where Mr. Whelan was still under suspension by the Commission that a reasonable person in his position would not believe that he could file a new claim until that one had been disposed of. I find the reasoning of Mr. Whelan quite acceptable and reasonable in the circumstances and for that reason the decision of the insurance officer should be reversed and Mr. Whalen permitted to proceed with his claim.
David G. Riche
Umpire
February 27, 2001
St. John's, Newfoundland