CUB 56969

GUY GOULARD, Umpire

The claimant worked for Zehrs Markets from March 2, 1976 until August 4, 2001. On October 9, 2001, he applied for employment insurance benefits. The claimant applied to have his claim antedated to August 5, 2001. An initial claim was established effective October 9, 2001. The Commission refused to antedate the claim because it was determined that the claimant had not shown good cause for his delay in applying. The Commission also determined that the claimant had lost his employment as a result of his own misconduct and imposed an indefinite disqualification to benefits effective October 7, 2001. It further determined that the claimant was not entitled to benefits as of November 5, 2001 because he was working full-time as of that date.

The claimant appealed the Commission's decisions to the Board of Referees who, in a unanimous decision, allowed the appeal on the issue of the disqualification for losing the employment due to misconduct but dismissed the appeal on the issues of antedate and disqualification for not being unemployed. The claimant appealed the Board's decision to the Umpire. This appeal was heard in Hamilton, Ontario, on April 10, 2003. The claimant was present with his lawyer, Mr. Barry Sawyer. The Commission was represented by Ms. Melanie Toolsie.

The claimant stated that the only issue was in regards to the antedate as the claimant had acknowledged that he was no longer unemployed as of November 5, 2001. The claimant had provided two reasons in support of his application for an antedate. He had waited for his Record of Employment and he had believed that his unemployment would be of very short duration as he expected to quickly be reinstated. He had been initially suspended and later dismissed after being accused by his employer of stealing two tables. A grievance had been filed on August 3, 2001 and, in September, there was a decision to proceed to arbitration and a date had been set for this in late October. The claimant was reinstated in his position on November 5, 2001.

The claimant indicated that he had received his Record of Employment one and a half week prior to his application.

The Board's finding of facts in regard to the antedate is summarized as follows in its decision:

"In the matter of the antedate request, the claimant states he thought he would be back to work in a short time, as he was initially under suspension and felt the matter would be resolved quickly. When he was informed that he was fired, he was sent a Record of Employment which was in error. The amended Record of Employment did not arrive until mid September. Again, he had not applied for benefits, as he did not think he would be eligible. He then spoke to someone at HRDC who told him to request an antedate."

And the Board's decision reads:

"The Board has reviewed the written and oral evidence. The Board finds the claimant did not steal the tables which resulted in his suspension and firing. After 25 years of service, the claimant should have known to ask for permission to take them. In any event, he returned them promptly before management even knew they were gone. The Board finds, therefore, that the claimant did not lose his job by reason of his own misconduct pursuant to Section 29 and 30 of the Act. The Board also finds that the claimant has not shown good cause in applying late for benefits as required under Section 10 of the Act. Ignorance of the law is not considered a mitigating factor. The Board finds, therefore, that the antedate request should be denied. In the third issue, the claimant agrees that he was back to full-time work on 05 November 2001 and should not be entitled to benefits from then on."

On appeal, the claimant reiterated that it was not due to his ignorance of the law that he did not apply earlier. He truly believed that he would quickly be able to be reinstated in his position as he had not intended to steal the tables in question and that the whole matter would be cleared up. When he eventually was terminated and was able to obtain his Record of Employment, he went to the Commission Office and was told he should apply and ask for an antedate, which he did.

It is noted that the claimant's delay in this case in not very long, roughly two months. Considering that claimants are normally allowed one month to apply, the effective delay is only roughly one month. The basic reason for not applying earlier is that the claimant believed that the he had been dismissed over a situation that would be cleared up and that he would be reinstated in his position. This proved to be true although the reinstatement process took longer than he had expected. The claimant delayed not out of ignorance of the law but out of conviction that his situation would be quickly resolved and that he would not be unemployed and would therefore not have to apply for benefits.

In CUB 19371, Justice Cullen held that the claimant had shown just cause for her delay, which was substantially longer than in the case before me, because she had grieved and anticipated full redress, thus making the application for unemployment benefits redundant. This is very similar to the circumstances of the claimant before me. He thought that his grievance, which he initiated immediately after his dismissal, would resolve the situation. When this was not happening as fast as he had expected, he applied for benefits and for an antedate. As mentioned this was not an exceptionally long delay, to the contrary.

The purpose of the employment insurance system is to assist employees, who have contributed in the system, to obtain benefits when they are, for reasons beyond their control, put in a situation of unemployment. Procedural rules, including time limitations, have been included in the legislation for obvious reasons, such as to assure an effective administration of the system and to allow the Commission to investigate claims. The antedate provisions have been included to allow a claimant to explain why, in his particular circumstances, there were good reasons for his delay. The Federal Court of Appeal has stated that what is expected of a claimant is that he or she has acted as a prudent person would in the same circumstances.

In this case, from all evidence, I am satisfied the claimant acted as a prudent person, he grieved his wrongful dismissal, was convinced that he would be reinstated and was right in his conviction. The process took a bit longer than he had expected. He applied a few weeks later than he would have been expected to. To prevent him from receiving benefits would be to impose a very restrictive approach to the interpretation of reasonableness. The following comments from Justice Muldoon in CUB 9958, are quite applicable to this case:

"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."

I find that the Board erred in its finding that the claimant delayed his application due to ignorance of the law. That was not the issue. Reasonableness in his circumstances was the issue. I find that the facts and the above jurisprudence support a finding that the claimant had acted as a reasonable and prudent person and had shown good reasons for his delay in applying for benefits.

Accordingly, the claimant's appeal is allowed and his request for an antedate is granted.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
April 17, 2003