CUB 58234

GUY GOULARD, Umpire

The claimant worked for White River First Nation from April 11, 2000 until November 1, 2001. On January 15, 2002, he applied for employment insurance benefits indicating he had lost his employment due to shortage of work. An initial claim was established effective January 13, 2002. The claimant requested an antedate to November 2, 2001. The Commission determined that the claimant had not established good cause for his delay in applying for benefits and refused his request for an antedate.

The claimant appealed the Commission's decision to the Board of Referees who, in a unanimous decision, allowed the appeal. The Commission appealed the Board's decision to the Umpire. This appeal was heard in Whitehorse, Yukon Territory, on August 22, 2003. The claimant was present. The Commission was represented by Mr. Ward Bansley.

The reason given by the claimant for not applying immediately after losing his employment was that he expected to be recalled. He explained that he had been laid off because his employer was waiting for funding to complete the project he was working on. He did not want to start his claim as he expected to shortly return to work. He knew he would eventually be laid off for an indefinite period and wanted to wait until then to establish his claim. The claimant never submitted that he was not aware of his rights and obligations. To the contrary the claimant had previously received employment insurance benefits and was aware of his rights and obligations.

The Board's decision reads as follows:

"Mr. Gordon John acted reasonably and in good faith in waiting to apply for E-I benefits. This response is appropriate in light of life in a small Yukon community subject to the many vagaries of labour, materials, funding, weather, etc.

While subsections 10(1) and 10(4) are referenced in relation to this matter we believe that discretionary latitude permits the acceptance of the antedating in this case.

Decision

The Board of Referees accepts Mr. John's antedating appeal."

On appeal, the Commission argued that the Board erred in law by not applying the proper test with respect to good reasons for a delay in applying for benefits. Counsel for the Commission submitted that it is well established in the jurisprudence that it was incumbent on the claimant to inform himself in regard to his rights and obligations concerning his claim and that, by failing to do so, the claimant had not acted as a reasonable person would have done in the same circumstances. The Commission referred to CUB 51720. In that case, the claimant had delayed filing his application for benefits for some six months because he was seeking employment. He indicated that he had not understood the rules as he had never claimed before.

Those facts are clearly different from the ones in the case before me. Mr. John did not argued that he was not aware of his rights and obligations. He was awaiting a recall that he expected to come in a short period of time. When he was informed that he was being laid off for an indefinite period, he applied. His Record of Employment is dated January 10, 2002 and he applied on January 15, 2002.

The test for showing good reasons for a delay in applying for benefits, as established by the Federal Court of Appeal, is that a claimant must show he acted as a reasonable person would have done in similar circumstances; (Larouche (A-644-93), Albrecht (A-172-85)).

In this case, the Board, taking into consideration the claimant's particular circumstances resulting form his work environment in a small Yukon community, found that he had acted reasonably. One of the responsibilities of Boards of Referees is to take into consideration all the relevant circumstances particular to their community. In this case, the Board did so and concluded that the claimant had acted reasonably and had shown good reason for his delay.

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 applied the proper test as established by the Federal Court of Appeal. It determined, on the facts before it, that the claimant had shown good reasons for his delay. This decision is quite supportable on the evidence before the Board.

Accordingly, the appeal is dismissed.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
August 29, 2003