CUB 52024
IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
- and -
in the matter of a claim for benefit by
CHARLOTTE SAYEAU
- and -
IN THE MATTER of an appeal by the claimant from a decision of a
Board of Referees given at Cornwall, ON, on the 15th day of November, 2000.
DECISION
Hon. David G. Riche
The Commission advised the claimant that they could not pay her benefits until September 12 because she did not show that between July 16, 2000 and September 12, 2000 she had a good cause for applying for late benefits. Further, they could not pay her regular benefits starting September 11, 2000 because she quit her job on July 16 without just cause. Finally, they advised her that they could not pay her benefits as of September 11 because her family responsibilities made her unavailable for employment.
The Board found that the claimant quit her job because her mother was to receive treatment for cancer and she needed help on the farm and a caregiver. The treatments were to go on until January, 2001.
On the issue of availability the Board quoted CUB 25257:
It is admitted that the claimant acted admirably in preferring to look after her child rather than working.
It is obvious that she was not available for work since it was physically impossible. As far as the third issue is concerned, as in A-644-93 and CUB 23164, "good faith and ignorance of the law do not in themselves excuse a failure to comply with a legislative requirement."
The Board concluded, based on s. 29(c)(v) of the E.I. Act, that she quit her job with just cause because of the obligation to care for a member of the immediate family. Based on subsection 18(a) of the E.I. Act, she was not available for work as of September 11, 2000. Based on Section 10 of the E.I. Act, she did not have a good cause to apply late for benefits.
The Board therefore found just cause for her quitting her job and that part of her appeal was granted. With respect to availability for work and good cause to apply late for benefits, the Commission's decision was upheld and the claimant's appeal was denied.
The claimant appealed that decision to an umpire.
I will first deal with the issue of the antedate. Section 10(4) states:
An initial claim for benefits made after the day when the claimant was first qualified to make a claim shall be regarded as having been made on an earlier date 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 that the initial claim was made.
In determining a good cause for delay, one must decide the question of mixed law and fact. The meaning of good cause is a question of law whether the facts in a given case fall inside the definition is a question of fact. An umpire may not vacate a board's decision solely because his view as to the delay in applying for benefits differs from that of the Board. However, it is open to an umpire to reach the conclusion that the Board has not correctly applied the question of good cause. The onus for demonstrating good cause lies with the claimant. It may be an error of law for a Board of Referees to refer the claimant as not showing justification as opposed to good cause which is a statutory requirement. However, it is certainly an error of law for a board to allow an antedate without finding a good cause for delay.
My reading of the Board's decision does not provide me with the reasons as to how they found that the appellant did not have good cause to apply for late benefits. The only statement made is "based on s. 10 of the E.I. Act, the claimant did not have a good cause to apply for late benefits".
The claimant, at Exhibit 17 and 17-7, states: "The reason for applying late for benefits is just as human a reason as the need to relocate. There was a lot to contend with. Accepting the fact that one's mother is seriously ill with cancer should be reason enough. However, it was not the only reason. Since the time I realized I had to relocate, I was very active in trying to secure employment in and around the area where my mother lived. I got help preparing resumes, circulating them, doing callbacks and improving the skills I seemed to-have lacked in being deemed employable. For example, computer use and knowledge, keyboarding and basic interview skills. I also had to contend with the relocation of my children, getting them set up and moved, as well as all the seemingly routine tasks of transferring all one's life from one part of the province to another, all the while searching for employment. I apologize for the delay in applying. I was just trying to be employed rather than trying to receive employment benefits."
I am satisfied that the Board of Referees and the Commission should have given the benefit of the doubt to the claimant with respect to her late filing. It is common sense that a person in her position would have had innumerable things to do within the short span of July and September, a period of less than two months. I find the decision of the Commission and the Board does not reflect the facts available to them in this case. This was a traumatic period in this woman's life which it caused her to have to move from one part of the province to another, moving her children, caring for her mother and trying to find new employment. Surely that would constitute a good cause for delay in filing her claim.
For these reasons, I am satisfied that the Board of Referees were in error in that they did not apply themselves to the facts nor did they give reasons as to how they came to the conclusion that the antedate should not be allowed.
For these reasons, I am satisfied that this claimant did have good cause and she showed a justification for failing to file her claim immediately.
I therefore allow the appeal of the claimant in respect of the antedate.
The Board found just cause in the claimant quitting her position in order to care for her mother under s. 29(c)(v) of the Act. That is not a matter before me but I approve of that decision.
With respect to the issue of availability, I am satisfied that the evidence from the claimant that she had resumes and was physically looking for work and upgrading her skills so as to make her more employable are factors which are consistent with availability. Also the fact that the claimant only has to assist her mother at the farm about one hour in the morning, which I presume is early in the morning, and one hour at night, would not affect her availability during the normal working day. In answer to Question 9, Exhibit 13-3, she states: "I made certain that you were aware of the fact that off and on to the availability for work means I need approximately one hour in the morning and one hour in the evening to complete chores, that request does not unreasonably and definitely does not make me unavailable for employment".
It seems to me that the Commission and the Board ignored the evidence of the claimant in this particular case. In order to find that the claimant is not available for work, there would have to be evidence before the Board and the Commission to show that she would not reasonably be available because she was occupied during the normal working day. That, however, was not the case. I am satisfied that the evidence supports a finding that this claimant was in fact available for work.
I therefore find that the Board was in error as it did not have before it evidence that would have shown that this claimant was unavailable for work. The only reason she was out of work was because she had to move to be near her mother. Had her mother's farm been near her, I am sure she would have been able to carry on with her work and assist her mother as well.
In these circumstances, I am satisfied that the Board made an error in fact and in law and for these reasons the claimant's appeal is allowed in respect of her availability.
David G. Riche
Umpire
August 16, 2001
St. John's, NF