CUB 56558

GUY GOULARD, Umpire

The claimant worked for Fluor Constructors Canada Ltd from April 18, 2002 until May 5, 2002 when he was dismissed. He applied for the renewal of his claim on June 10, 2002, and requested to have his claim antedated to May 5, 2002. The Commission refused the request to antedate the application because it was determined that the claimant had not shown good cause for his delay. A claim was established effective June 2, 2002.

The claimant appealed the Commission's decision to the Board of Referees who unanimously dismissed the appeal. He appealed the Board's decision. He indicated in a telephone conversation with a Commission agent (Exhibit 14) that he did not request a hearing before an Umpire but wished that a decision be made on the record.

Three reasons were given by the claimant for not applying for benefits immediately after losing his employment: he thought that he did not qualify because he had been dismissed, he believed he could find employment and not have to rely on employment insurance benefits, and he was going through a difficult period following the death of his sister from cancer on May 4, 2002 (Exhibits 3, 5 and 7).

The Board reviewed the facts and arrived at the following decision:

"As established in Albrecht [A-172-85], the onus is on the claimant to prove that he did what a reasonable and prudent person would have done to satisfy his rights and obligations in order to establish good cause for the delay in applying late for benefits.

The Board of Referees is sympathetic for the Appellant's loss of his sister on May 4, 2002, and extends our condolences. The Board of Referees further acknowledges that the Appellant surely must have gone through a "hectic period" as he indicated in his letter of appeal, since his sister passed away one day before he lost his employment with Fluor Constructors Canada Ltd.

While the Board of Referees appreciates the Appellant's difficult situation at the time he lost his employment, this situation does not demonstrate good cause for the delay in applying late to re-establish his claim for benefits, as set forth in jurisprudence such as CUB 52137.

The appellant also indicated in his request to antedate his claim for benefits that another reason he failed to apply at the earlier date is because he did not believe that he would qualify for benefits, since he was dismissed from his employment. The appellant stated that he applied at the later date, after he learned that he could qualify in spite of his dismissal, "in certain circumstances" (Exhibit 3). The Board of Referees finds the Appellant's ignorance in this regard does not demonstrate good cause for the delay. There is no evidence to support the Appellant was prevented from applying at the earlier date. Thus, the Board concludes the Appellant's actions do not demonstrate good cause of the delay, since he did not take any actions to inquire about his possible eligibility at the earlier date.

The Board of Referees finds the Commission has correctly established the renewal claim for benefits effective June 2, 2002."

In his letter of appeal to the Umpire (Exhibit 13), the claimant basically repeats the arguments he had presented to the Board, that he did not believe he was entitled to benefits and was affected by the passing away of his sister. He writes "my sister Susan was sick with cancer and I was helping to look after her and since that time she has passed away". The facts established that the claimant's sister passed away the day before he was dismissed.

I find that in this case the Board failed to consider the cumulative effect of the reasons given by the claimant for his delay in applying for benefits. Of crucial relevance is the short period of the delay in applying combined with the claimant's personal life crisis following the death his sister the day before his dismissal. He states that he had never applied for employment insurance benefits after working some 26 years, he believed that he did not qualify and that he would find other employment. As soon as he realized he May qualify, he applied. This is not months after he lost his employment but a mere 5 weeks. I find that the claimant has provided reasons for his delay which taken together should have shown good cause for his delay. Taking into consideration the social aspect of the Employment Insurance Act, the benefit of the doubt should be given to claimants in such situations rather than use the legislation to find a way to prevent the claimant from receiving benefits. This was well stated by Justice Muldoon in CUB 9958:

"Parliament never enacted that ignorance of this law is just more tough luck for those unemployed who are not so learned, literate or sophisticated as to make timely claims. Here the subject is not a contemptible cheater, but an ordinary decent claimant who was late. The policy of the Act is to confer benefits for which claimants have paid their premiums, not to find arcane excuses for withholding benefits. Again, from this perspective, Parliament's intention in enacting subsection 20(4) appears to be quite clear: the adjudicator has only to determine whether this claimant, in these particular circumstances, has shown "good cause for his delay" in applying for benefits. The adjudicator is not called upon, every time he or she descries a tardy claimant's ignorance of this complex law, to bludgeon the tardy application into oblivion. Ignorance of the law, especially if it be wilfully self-inflicted could certainly be determinative against a tardy claim, or of any proceeding in which the claimant bears the burden of demonstrating good or just cause for departing from the norms imposed by this insurance plan. It is only one factor which the adjudicator must consider, but it does not work an automatic or inevitable foreclosure upon the tardy claimant's application for benefits, because that is clearly not Parliament's intention in this regard."

In CUB 16498, Justice Joyal commented on the necessity of considering all the relevant factors in determining if good cause has been shown for delay in applying for benefits and, in particular, the length of the delay. He wrote:

"To the innocent claimant, it is not sufficient to show that he didn't know the rule. He must show that in all circumstances of the case, he acted as a reasonable person. This principle was made clear by the Federal Court of Appeal in Attorney General of Canada v. Albrecht, [1985) 1 F.C. 710. The length of the delay in filing might also be considered. For example, Chief Umpire Jerome in CUB 12454, Foley, ruled that waiting for a record of employment might be good cause where, in the case before him, the delay was only three weeks, a ruling which he could distinguish from the one in CUB 10994, Middleton, where the delay on the same grounds had been three months."

I find that, in this case, the cumulative effect of the reasons given by the claimant does establish good cause for his delay. The period of delay is relatively short, he was under stress following the passing away of his sister, his belief that he might not be eligible because he had been dismissed was not without some merit and, finally, he applied as soon as he determined that he might be able to qualify.

The Board's decision is set aside and the claimant's appeal is allowed. His claim is to be antedated to the time he lost his employment.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
January 27, 2003