CUB 51453

IN THE MATTER of an appeal by the claimant from the decision of a Board of Referees
given on September 18, 2000, at Timmins, Ontario

The claimant appeals the unanimous decision of the Board of Referees (the "Board") which upheld the Commission's refusal to antedate his claim for benefits because he had failed to show good cause for applying late.

The claimant worked for FORT ALBANY FIRST NATION BAND from May 10, 1999 until December 16,1999. On April 5, 2000, he applied for benefits and requested to have his claim antedated to the date of termination of his employment. The Commission refused to antedate the application because the claimant had not shown good cause for the delay of 15 weeks in applying for benefits.

The claimant appealed the Commission's decision to the Board of Referees which, in a majority decision, dismissed the appeal. He now appeals the Board's decision to the Umpire.

This appeal was heard in Timmins, Ontario, on May 18, 2001. The claimant was present. The Commission was represented by Ms. Janice Rodgers.

The following dates are of importance in the analysis and determination of the issue of this appeal which is whether the claimant had shown good cause for his delay in applying for benefits:

December 16, 1999, the claimant's employment is terminated;

December 22, 1999, the employer sends a letter confirming the termination;

January 25, 2000, the Record of Employment is dated; (There is no information as to when this document was received by the claimant)

December 16, 1999 to January 18, 2000, the claimant makes several attempts to return to his employment by requesting meetings and by writing five long, detailed letters;

April 5, 2000, the claimant applies for benefits and provides a letter explaining his delay in applying, in support of a request for an antedate;

May 17, 2000 the claimant is advised of the refusal to antedate his claim.

"..This claimant states that he lives in a remote, isolated community. There is no Canada Employment Centre, therefore, there is no job counselling. He was not aware of his rights and obligations. He cannot easily access a job counsellor. The other reason for the delay in filing his application for benefits is that he was trying to regain his former employment. It was a good job and there is 90 percent unemployment in their community. For this reason, he felt he had to try to get his employment back. He admits that he only wrote the 5 letters submitted in the appeal docket and he had only one meeting with the Band council."

"The majority of the Board members finds as a fact that the claimant's attempts to regain his employment consisted of 5 letters dated between January 4, and 18, 2000 (exhibits 7 to 11) and one meeting with the Fort Albany First Nation committee members. The majority of the Board members finds that this is not so time consuming that the claimant was prevented, over a period of 15 weeks, from contacting the Employment Insurance office. Had the claimant contacted the office when he received the Record of Employment which was issued on January 25, 2000, there could have been a possibility of still filing his claim at that time. Instead, he waited another 10 weeks, until April 5, 2000. There is no evidence that he wrote additional letters during this time, as the last letter is dated January 18, 2000 (exhibit 11), nor that he attempted to contact committee members - the two reasons give for the delay."

"The majority of the Board concludes that the delay in fling his claim for benefits was due to the claimant's ignorance of the law and his own negligence, and this does not constitute good cause under Subsection 10(4) of the Act. The Board relies on the jurisprudence found in CUB 10026 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. In this case, the claimant failed to prove that he had done what a reasonable person would have done, that is, contact the E.I. office to obtain his rights and obligations."

"The claimant was not given his Rights & Obligations with his information. His prime objective was to get his job back. He states that there is 90% unemployment in the remote community and his efforts to secure his job back was his primary concern. He is not interested in going on El, but he is forced to.

He was not getting answers from his Employer. On different occasions, he wrote letters, still getting no reply, so he fled for E.I. hoping to still get his job back. His request for his re-employment was denied by his Employer.

This antedate request should be allowed."

"The statutory requirement of section 20(4) of the Unemployment Insurance Act, 1971, R.S.C. 1970-71-72, c. 48, as amended and Regulation 39 requires a claimant to show good cause for delay. In determining whether this test has been met, no hirer (sic) conduct should be expected of a claimant than would be expected of a reasonable person.

A description of good cause was set out by the Court of Appeal on October 9, 1984, in the reasons of Mr. Justice Hugessen in Gauthier (A-1789-83). That decision expressed the view that good cause would include:.. circumstances in which it is reasonable for a claimant consciously to delay making a claim. The courts should not impose artificial impediments of laudable restraint on the part of a claimant who reasonably delays making a claim for benefits."

The main reason given by the claimant for his delay was not the lack of access to information he suffered by living in a remote area but his genuine belief that he had unjustly been dismissed and his efforts to regain his position. As he stated, taking into consideration the very high rate of unemployment in his area, his efforts to regain his employment were extremely crucial. Although there were only five letters, these were letters for which the claimant evidently spent much time and attention in preparing. These letters were mostly not even acknowledged.

In determining if a claimant acted as a reasonable person in delaying his application for benefits, one must look at all the circumstances the claimant finds himself in. In this case, the remoteness of the claimant's residence, his belief that he had been unjustly dismissed, his determination to concentrate on getting his job back, the high rate of employment, his serious efforts at resolving the issues with his employer must all be considered.

I find that the Board's majority failed to give proper weight to these factors and that their reliance on CUB 10026 was misguided.

I therefore find that the majority of the Board erred in their interpretation of the facts and application of the law.

In this case, I am satisfied that there is sufficient evidence to conclude that the claimant acted as a reasonable person in initially concentrating his efforts to get his employment back and that he has shown good cause for his delay of 10 weeks, following the issuance of the Record of Employment, in applying for benefits.