IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
BRIAN BARTRAW
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IN THE MATTER of an appeal to an Umpire by the claimant from a
decision by the Board of Referees given on October 17, 2001 at
Burnaby, British Columbia.
The Honourable R.J. Marin
[1] This appeal was heard at Vancouver on July 25, 2002.
[2] At issue is whether the claimant had good cause to justify the delay in completing and submitting his report cards, pursuant to s. 10 of the Act.
[3] The Board, in a short and curt decision, stated in its conclusion at Exhibit 15-3 the following:
FINDINGS:
The Board finds that the claimant has failed to show that he had good cause for the delay in applying for benefits. The claimant did not submit his reports by Teledec in accordance with Section 10 and 50 of the E.I. Act and Section 26 of the Regulations.
Although he had some personal problems, he still had ample opportunity to contact the Commission, particularly in September, 2000 when he received his Record of Employment.
[4] The Board noted that some reports were made by Teledec. It did not appear to have received any evidence in relation to the instructions given to the claimant as to the use of the Teledec system of reporting.
[5] The file of appeal is well documented. The claimant, on a few occasions, immediately after being told to report, called the Commission using the Teledec call display system but did not remain on the line long enough to give a reply so that his report was considered a non-filing. The Commission admits, at Exhibit 13-1, the claimant was issued a report card for two weeks commencing July 30 and August 12, 2000. There is evidence to indicate he called on two separate occasions during the first weeks to complete the card. Each time he hung up before the report was completed.
[6] The Federal Court of Canada in Caverly (A-211-01) had several comments to make in relation to the Teledec reporting system. While the comments were made in relation to false or misleading statements knowingly made, the Court of Appeal alluded to the difficulty of overcoming an onus when there is no proof of any explanation as to how the system of Teledec should be used. In short, a failure on the part of the Commission to give adequate instructions as to the use of the sytem.
[7] The Federal Court of Appeal, in its decision at page 4, paragraph 10, speaks of the issue of "fairness" and the opportunity of providing an explanation in relation to both the system and its use. Absent any proper explanation or, to use the words of the Court at paragraph 11, "without the necessary evidential underpinning", I am not satisfied the appeal should proceed. It should be returned to a Board of Referees so that the matter of the reporting can be examined more closely and a specific finding made in relation thereto.
[8] Before the Board can conclude there was a delay for the entire period, it has to account for the attempt at making a Teledec report. It may be that the senior appeals officer may want to review this file in light of the decision of the Court of Appeal.
[8] The appeal is allowed to the extent the matter is returned to a Board differently constituted for re-examination of the issue arising from the use of the Teledec system.
R.J. MARIN
UMPIRE
OTTAWA, Ontario
August 9 2002