IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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In the matter of a claim for benefits by
Wayne RICHARDSON
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IN THE MATTER of an appeal by the claimant from the decision
of a Board of Referees given on March 1, 2001, at Barrie, Ontario
D E C I S I O N
GUY GOULARD, Umpire
The claimant appeals the unanimous decision of the Board of Referees (the "Board") who upheld the Commission's refusal to antedate the claimant's claim because he had not shown good cause for applying late.
The claimant worked for Loblaws from June 15, 1980 until September 2, 2000. On December 20, 2000, he applied for employment insurance benefits and requested that his claim be antedated to September 2, 2000. He indicated that he had delayed in applying because of illness. The Commission noted that the claimant had picked up his application form on October 20, 2000. They took the position that after that date the claimant had not shown good cause for not immediately submitting his application as he would have been told to do. The Commission refused to antedate the claim.
The claimant appealed the Commission's decision to the Board of Referees who unanimously dismissed the appeal.
At the hearing, where the claimant was represented by his father, the Board accepted that the claimant had been ill until November 22, 2000 when he returned to work but that after that date he did not show good cause for not submitting his claim.
The evidence that had been presented at the Board hearing is summarized as follows in the Board's decision:
"The claimant said he wanted an antedate to September 2, 2000. His Dad got the application in October, but he was not well enough to fill it out. He recovered enough to go back to work November 22. He thought he needed a record of employment, which he did not have, so he made an effort to get it at work and delayed applying until he got it. He worked part time, 24 hours per week and did leave work due to illness a few times. He was taking morphine for pain and could not eat. He was not feeling right."
The Board's decision reads as follows:
"The Board considered the information presented and found that the claimant was sick from 2 September 2000 to 22 November 2000 based on his doctor's note (Exhibit #4). However, from 22 November 2000 when he returned to work until December 20, 2000 the Board found that the claimant did not have good cause to be late applying for benefit as per Section 10 of the Employment Insurance Act. The Board found that the doctor's note (Exhibit #9) is not detailed enough to cover this month delay."
The claimant appealed the Board's decision. This appeal was heard in Barrie, Ontario on April 17, 2002. The claimant was present. The Commission was represented by Mr. Derek Edwards.
The claimant explained that between the time he left his employment in September he was not well enough to pick up his application form until October at which time his father pick it up. He stated that at that time he was told to bring his application in when he would have his Record of Employment (ROE). He indicates that he was still ill and returned to work against doctor's advice on November 22, 2000 because he needed the money to live on. The medical report submitted by the claimant at the Board hearing does state that he had returned to a state of health allowing him to return to work in mid-December.
Two reasons were advanced by the claimant for his delay in submitting his claim: his illness and his belief, which he said was based on instructions received from the Commission, that he needed his ROE to submit his claim.
In CUB 16667, Justice Reed stated that in an application for sickness benefits, the test for good cause should take into consideration the claimant's illness along with other factors. She wrote:
"In addition I share my colleague's view that timeliness is not as crucial to a sickness benefit claim as it is in the case of a claim for regular benefits. There is no requirement on the claimant to prove availability and thus there is not the same potential for prejudice, to the Commission, to arise as is the case with a claim for regular benefits.The test set out in the Albrecht case is a flexible one. It requires an assessment of a variety of circumstances which may differ in each case: the length of the delay; whether any prejudice is occasioned to the administration of the unemployment insurance system by the delay; the sophistication of the claimant; the degree of experience a claimant has with the unemployment insurance system; the type of benefits being claimed (regular or sickness); the immediate cause of delay (e.g., illness or misinformation). This is not an exhaustive listing."
Reliance on a belief that a ROE was necessary to submit a claim was also accepted a good cause for delay in a number of Umpire decisions.
In CUB 16275, Justice Teitelbaum wrote:
"Has the claimant shown good cause for the delay to file her claim. The principle "good cause" has been reviewed in a number of cases. In the case of Albrecht [1985] 1 F.C. 710, Mr. Justice Marceau states, at page 718:
'In my view, when a claimant has failed to file his claim in a timely way and his ignorance of the law is ultimately the reason for his failure, he ought to be able to satisfy the requirement of having "good cause", when he is 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 under the Act. This means that each case must be judged on its own facts and to this extent no clear and easily applicable principle exists; a partially subjective appreciation of the circumstances is involved which excludes the possibility of any exclusively objective test. I think, however, that this is what Parliament had in mind and, in my opinion, this is what justice requires.'
Surely the claimant did what any "reasonable person" would have done. I am satisfied that no "reasonable person" would have, after being told on three occasions, that she is not eligible, one of these times after having this confirmed in a telephone conversation between the school board representative and a representative of the Commission, thought of going to the Teachers federation for further clarification. The claimant acted most reasonably in deciding, after a third time that she is not eligible, to leave matters be. This is particularly understandable if one takes into consideration that the claimant, when site contacted the Commission had, been told by a representative of the Commission that she required a Record of employment to file an application for benefits."
And in CUB 15206B, Justice Strayer stated:
"I am inclined to agree that the claim here should have been antedated to January 1, 1986 as there is clear evidence accepted by the Board of Referees that the claimant was wrongly advised by the Hamilton office of the Commission that he could not submit a claim without a record of employment. To that extent he has met the requirements of paragraph 39(b) of the Regulations which allows antedating where the claimant had good cause for the delay in making the claim."
And finally in CUB 13249, Justice Rouleau also accepts that reliance on information given by the Commission that a claimant should wait to have his ROE before submitting a claim is good cause for the delay.
I therefore find that the Board erred in law and in fact in its decision. Based on the above jurisprudence, the claimant has clearly shown good cause for his delay.
The appeal is accordingly allowed and the claimant's claim for benefits shall be antedated to September 2, 2000.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
April 26, 2002