CUB 57222

GUY GOULARD, Umpire

The claimant worked for Confection J.F.S. Senc. from February 14, 2000 until November 4, 2000. On May 3, 2001 she applied for employment insurance benefits. She requested to have her claim antedated to November 6, 2000 (Exhibit 5). The Commission refused the request to antedate the application because it was determined that the claimant had not shown good cause for her delay.

The claimant appealed the Commission's decision to the Board of Referees who unanimously allowed the appeal. The Commission appealed the Board's decision to the Umpire. This appeal was heard on February 27, 2003 in Montréal, Québec. The claimant was present. The Commission was represented by Mr. Sébastien Gagné.

The reasons given by the claimant on her application for an antedate for her delay in applying was that during the interval between her loss of employment and her claim, she had tried to improve herself and to find a job.

At Exhibit 7-1, the claimant adds that many things had happened to her during the period of her delay. She states that, in January, she was informed that four members of her family had been arrested in China, including her husband. She states that she had gone to Geneva in March to solicit some help to free her husband and other persons detained in China. When she returned, her money was so limited that she realized she had to apply for employment insurance benefits.

In her letter of appeal to the Board (Exhibit 10), the claimant states that she had not applied earlier because she did not know there was a limitation on the time to appeal and that she was waiting for her Record of Employment.

It is also important to note that, at Exhibit 8, the employer states that the claimant left her employment because of the problems regarding her husband and that she had to go to Toronto.

In other documents on file, including Exhibit 11, the claimant appears to draw a relation between the fate of her family members in China and her right to employment insurance benefits. At Exhibit 11 she writes "Also the appeal motive is that I am appealing for my family and my husband, so it is more important for me than apply for UIC."

The Board's decision reads as follows:

"The claimant explains to the Board that from November 5^th 2000 to January 2001 she searched jobs. She acted as in China where there is no system of unemployment insurance so, she did not know that she had to report to her local office in a 30 day delay.

In January 2001, she learned that her husband was arrested in China and put in a labour camp. She also learned that 3 other members of her family were arrested for the same reason as practising Falun Gong. She was unable to think about asking for benefits.

From January to March 2001, she went to Ottawa 7 days and prepared her trips to Geneva while looking for a job at the same time.

From March 2001 to April 19^th, 2001, she left the country to go to Geneva relatively to the problems in China.

When she came back in April 2001, she wanted to ask her employer for money to live but he was in vacation. She had to wait at the end of April to obtain her record of employment and to ask for benefits on May 3^rd, 2001.

The Board of Referees is of the opinion that the appellant justifier her being late in applying for benefits from November 5^th, 2000 to May 5^th, 2001, grants the appeal and rescinds the decision of the Commission dated June 12^th, 2001 (ex. 6). This decision is UNANIMOUS."

The Commission submitted that the Board erred in law and in fact in its decision. The Commission refer to the W. Albrecht decision of the Federal Court of Canada (A-172-85) which states that ignorance of law does not constitute a good cause to delay filing a claim for benefits. The Commission also refers to the Larouche (A-644-93) and Caron (A-395-85) decisions which provide that to establish good cause for delay a claimant must show she acted as any other reasonable person would have in the same circumstances, that is to inquire as to her rights and obligations.

The Commission further argues that, if the claimant was able to look for work and to travel out of the country she was capable of making inquiries about her rights and obligations in regards to her claim.

It is well established in the jurisprudence that the test to determine what constitutes good cause for a delay in applying for benefits is whether the claimant acted as a reasonable person would have in the same situation and that each case must be determined on its own facts taking into consideration the special circumstances of each case.

In CUB 23862, Justice MacKay wrote:

"The principle that ignorance of the law is no excuse used to be the complete answer to a great many antedating claims and very often Commission and Boards of Referees required some evidence that the claimant was physically prevented from making a claim before extending the benefit of the antedating provisions. Fortunately, we now take a more enlightened view as expressed in Attorney General of Canada v. Albrecht. Now, if a claimant has other valid reasons which may happen to include ignorance of his entitlement to benefits, he will still enjoy the benefit of the antedating provisions so long as he can demonstrate that he has acted in a reasonable manner to satisfy himself as to his rights and obligations under the Act.

Whether a claimant has met this test is a question of fact to be determined in the light of the special circumstances of each case. The principle has been applied in subsequent jurisprudence in such a manner that claimants who, because of illness, illiteracy, incapacity or as a result of some other special circumstance, delayed in making their claims, may be considered to have good cause for doing so."

It has also been determined by the Federal Court of Appeal that an Umpire is not to disturb a Board's finding that the facts in a given case establish good cause for the delay in applying for benefits if the evidence supports such a finding. In the Denise Bélanger decision (A-74-81), Justice Pratte wrote:

"An umpire may not, solely because his view differs from a board of referees, vacate a decision of that board rejecting as invalid the argument put forward by a claimant to justify his delay in making a claim for benefits."

An Umpire's jurisdiction is limited by subsection 115(2) of the Employment Insurance Act. Unless the Board of Referees failed to observe a principle of natural justice, erred in law or based its decision on an erroneous finding of fact made in a perverse manner or without regard for the material before it, an Umpire is required to dismiss an appeal.

I am unable to find that the Board of Referees so erred. The Board reviewed the number of reasons given by the claimant for her delay and concluded that these reasons constituted good cause. It cannot be said that the Board based its decision on an erroneous finding of fact made in a perverse manner or without regard for the material before it. To the contrary the claimant had given credible and important personal reasons for her delay.

Accordingly, the appeal is dismissed.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
March 7, 2003