CUB 57123

A. Gobeil, Umpire

The Commission is appealing a decision by a Board of Referees overturning the Commission's decision of April 16, 2002, ie,

[TRANSLATION] Please be informed that your claim for benefit cannot commence December 17, 2000 because you have not proven that from December 17, 2000 to March 8, 2002 you had good cause to delay making your claim for benefits.

The Board of Referees based its decision on the following facts:

[TRANSLATION] The facts in the docket can be summarized as follows:

The appellant filed a claim for benefit on March 15, 2002 (Exhibit 2). On March 15, 2002, the appellant requested that his claim be antedated to December 18, 2000 (Exhibit 5). According to the information provided by the appellant, his final pay period was December 31, 2000 (Exhibit 3) and when he was laid off, he received one year's pay, and then worked as a consultant from July 30 to November 2, 2001 (Exhibits 4 and 5). The Commission denied the request to antedate, pursuant to section 10 of the Act.

During the hearing, the appellant filed new evidence that we are placing in the docket as Exhibit 11. The document in question is his last claim for benefit to the Employment Insurance Commission, dated May 8, 1992, when he was laid off by his employer at that time (Samson, Bellair, Deloit & Touche) on September 15, 1991. The Commission approved that claim for benefit effective June 7, 1992 because the appellant had received vacation pay and separation pay in the amount of $49,391.88. According to the appellant, he drew on his experience from 1992 when calculating how long he had before filing his claim. The appellant writes (Exhibit 8.2) that:

[TRANSLATION] following the same logic, I was convinced that those 14 weeks I worked would be added to the previous 52-week waiting period, delaying my eligibility for benefits by the same amount of time, ie, until April 15, 2002. I thus delayed filing a claim and went to the employment insurance office on March 15, 2002.

The Board of Referees believes that the appellant is acting in good faith, and has considered the evidence in the docket and his statements during the hearing, all of which proves that he acted reasonably and prudently, based on his experience and the circumstances.

The members of the Board of Referees therefore unanimously allow the appeal pursuant to section 10 of the Act.

It is obvious that in this instance, the members of the Board of Referees specifically considered the claimant's similar experience in 1992. Sub-section 9(4) of the Unemployment Insurance Act at that time is no different from sub-section 10(4) of the Employment Insurance Act, which applies in this case.

The jurisprudence consistently establishes that the determination of good cause for a delay in making a claim for benefit is based on the actions of the claimant. Those actions must be such that it can be determined that the claimant did what a reasonable person would have done to satisfy himself as to his rights and obligations (Albrecht, A-172-85, Smith, A-549-92, Pellerin, A-1283-92).

A claimant cannot be criticized for not satisfying himself as to his rights and obligations unless it appears that such action is necessary and that failing to do so proves that the claimant was negligent, careless or reckless. The members of the Board of Referees, based on the facts at hand, did not reach that conclusion, specifically because they considered as an essential fact the claimant's similar situation in 1992, and decided that the claimant "[TRANSLATION] acted as a reasonable and careful person would given his experience and circumstances."

I do not find that interpretation unreasonable. Why would a reasonable person, in the same situation as the claimant, feel that he had to satisfy himself as to his rights and obligations, at the risk of being tagged negligent and careless if he did not, while in 1992, in a similar situation, the Commission authorized what the claimant is requesting today, even though the law is the same as in 1992.

To a degree, it is the Commission's prior actions that placed the claimant in a situation in which a reasonable person would not have felt the need to satisfy himself as to his rights and obligations, because the parameters of that requirement had already been established earlier in a comparable situation. That situation is one of the circumstances on which the Board of Referees based its decision.

In this instance, there is no reason for me to find that the decision by the members of the Board of Referees is based on a perverse or capricious finding of fact, or did not take into account the evidence before them.

There is no reason for me to intervene and substitute my opinion for that of the members of the Board, given that the issue at hand is based first and foremost on facts that the Board interpreted reasonably (Ash, A-115-94, Guay, A-1036-96)

The appeal is therefore dismissed.

Albert Gobeil

Umpire

Montreal, Quebec
February 15, 2003