IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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In the matter of a claim for benefits by
Lori C. HALVERSON
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IN THE MATTER of an appeal by the claimant from the decision of a Board of
Referees given on July 19, 2001, at Ottawa, Ontario
D E C I S I O N
GUY GOULARD, Umpire
The claimant worked for Nav Canada from November 11, 1996 until July 7, 1999. On February 20, 2001, she applied for employment insurance benefits and requested to have her claim antedated to July 7, 1999. The Commission refused the request to antedate because the claimant had not shown good cause for her delay.
The claimant appealed the Commission's decision to the Board of Referees who unanimously dismissed the appeal. She now appeals the Board's decision. This appeal was heard in Ottawa, Ontario, on April 24, 2002. The claimant did not appear but was represented by her legal counsel, Ms. Sonia Levesque-Parsons. The Commission was represented by Mr. John Unrau.
On behalf of the claimant, Ms. Levesque-Parsons submitted that the Board erred in law and fact by focussing only on the claimant's ignorance of the law and ignoring the other reasons advanced by the claimant for her delay in applying for benefits. She pointed out two important other reasons which had been advanced by the claimant: firstly her reliance on advice given by her employer that she would not qualify for a year due to a severance package she received and that she should wait until then to apply for employment insurance benefits and secondly her health condition during the relevant period.
These reasons had been considered by the Board in its decision:
"The claimant said she was under the impression after being (incorrectly) advised by a Nav Canada payroll clerk that she would be ineligible for about one year following her separation and should not apply until then. This took her to July 2000. The claimant provided evidence that she suffered from serious physical health problems prior to that date, including having had heart surgery. Dr. Smith gave evidence about the significant psychiatric problems the claimant has suffered for many years, including anxiety disorder, obsessive compulsiveness, etc."
The Board concluded:
"We conclude that throughout the period of her delay, the claimant had one main reason for not applying: she was not aware of her obligation to do so. Even though she clearly had various psychiatric problems, we could not conclude nor did Dr. Smith, indicate that the claimant would have been incapable of applying for Employment Insurance benefits earlier had she known.Thus, in our view, this is a case of ignorance of the law. The other reasons cited by the claimant and her counsel, although relevant did not take this case outside of the general proposition that "good faith and ignorance of the law do not in themselves justify a failure to abide by a legislative requirement". We further find that the cases cited by the claimant's counsel were each distinguishable on the facts from this one."
The jurisprudence has well established that a claimant's misunderstanding of the law and its application can constitute just cause for applying late. The Federal Court of Appeal in Albrecht (A-172-85) stated that the test for good cause is whether the claimant acted as a reasonably prudent person would have in the same circumstances, either to clarify the situation regarding his employment or to determine his rights and obligations.
In CUB 18990, Associate Chief Justice Jerome, summarized the jurisprudence regarding the reasonable person test in the following way:
"The Federal Court of Appeal has held that a claimant will have good cause for delay in filing her claim when she is able to show that she did what a reasonable person in her situation would have done to satisfy herself as to her rights and obligations under the Act: Attorney General of Canada v. Albrecht, [1985] 1 F.C. 710. Whether the claimant has met this test is a question of fact to be determined in the light of the special circumstances of each case. Subsequent jurisprudence in this area has established that claimants who receive misinformation from the Commission or an employer or who, because of illness, illiteracy, incapacity or as a result of some other special circumstance, delayed in making their claims, may have good cause for the delay. For Instance, in Eldridge, CUB 14318, the claimant was considered to have acted reasonably in delaying the filing of her application for benefits due to her lack of familiarity with the procedures as a first time applicant as well as her reliance on misinformation provided by the payroll department of her employer."
In CUB 11100, Justice Muldoon, sitting as an Umpire, provides the following guidance for determining if a claimant falls within the description of a reasonable person:
"The question then is to determine what is expected of a "reasonable person". Now, a reasonable person is not an anxiety-ridden paranoiac who doubts or disbelieves an apparently authoritative word of advice to the point of seeking to verify that advice again and again, daily or periodically, lest the advice be erroneous. A reasonable person, being initially justified in accepting that apparently authoritative advice, naturally continues to accept unless or until its error or untrustworthiness be brought to his attention. That exactly describes the claimant's course of conduct, which was that of a reasonable person. After all, the original justification does not "rust" or otherwise deteriorate merely because of the effluxion of time, prodigious as it was."
In that case, the Commission had conceded that, if the Umpire was satisfied that the claimant had made the telephone call to the general inquiries section of the Unemployment Insurance Commission and that he had received the misinformation as alleged by him, his appeal from the decision of the Board of Referees should be allowed.
The cases have also stated that misinformation given by an employer can also support a claim that good cause has been shown when coupled with other factors in determining if a claimant has acted reasonably (See CUBs 18335, 16333 and 14318).
It has also been held in a number of cases that a claimant's health problems are relevant factors in determining if he or she acted as a reasonable person (CUBs 16333, 14326, 13378).
In the case before me the Board imposed a too stringent onus of proof on the claimant when it stated that she had failed to prove she would have been incapable of applying for benefits had she known her rights. That is not the test the claimant was required to meet. This was stated in CUB 14326, where Associate Chief Justice Jerome wrote:
"The Board reached a different conclusion because they failed to apply this test. Their finding was that Mr. Smith had not proven that he was incapable of contacting the commission That is not the test laid down by the court of Appeal. All Mr. Smith had to show was that he acted reasonably for a claimant in his situation. In applying the wrong test, the Board has made an error of law."
I therefore conclude that the Board erred in applying the wrong test and in not considering the different elements of evidence presented by the claimant which support her submission that she has shown good cause for her delay. She presented evidence, accepted by the Board, that she was wrongly advised by her employer that she should wait to apply and the medical evidence presented by her doctor at the hearing as to her medical problems that would have been a major factor in her failure to apply earlier. The Board's decision will accordingly be set aside.
I have considered whether to refer the matter to a newly constituted Board for a redetermination but I have concluded that the evidence on file is adequate to enable me to give the decision the Board of Referees should have given.
Taking all the evidence on file and presented at the hearing, I am satisfied that the claimant has proven that she acted like a reasonable person in not applying before she did. The claimant's appeal is allowed.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
May 13, 2002