CUB 58257

GUY GOULARD, Umpire

The claimant worked for the University College of the Cariboo from March 13, 1997 until August 14, 2001. On November 8, 2001 she applied for employment insurance benefits. On January 23, 2002, the Commission informed the claimant that she did not qualify for benefits as she had not accumulated the required minimum hours of insurable employment in her qualifying period, that is from November 5, 2000 and November 3, 2001. On February 8, 2002, the claimant applied to have her claim antedated to August 12, 2001. 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 dismissed the appeal. She appealed the Board's decision to the Umpire. This appeal was heard in Vancouver, British Columbia, on August 7, 2003. The claimant was present. The Commission was represented by Ms. Naomi Wright.

The main reason given by the claimant for her delay in applying for benefits was that she was waiting to receive her Record of Employment (ROE) to confirm that she had the required number of hours of insurable employment to qualify for benefits.

The claimant terminated her employment on August 14, 2001. The ROE (Exhibit 3) is dated October 30, 2001. In her application for an antedate (Exhibit 6-1), the claimant states that when she terminated her employment she requested her "separation certificate" as she was not sure of her insurable employment hours. She adds "(t)he certificate never arrived and as time was passing, I decided to take care of it myself. (...) After more delays, it finally arrived and I could see by my hours (over 500) that I probably did qualify for EI. I immediately applied ..." . Her application is dated November 8, 2001, a little over a week after the ROE was dated. Taking into consideration the time it would have taken for the claimant to receive the ROE, one can accept her statement that she applied immediately after receiving her ROE. She stated that she took a bit of time to pursue the employer who had not yet sent the ROE as she was very busy in organizing the relocation of her family. In her letter of appeal to the Board (Exhibit 12-1), she wrote "I am being denied my claim because I lacked information...".

In its written submissions to the Umpire (Exhibit 13-1), the Commission stated: "The claimant indicated that she did not apply for benefits at the time she stopped working as she did not think she had enough hours to qualify". That is not exactly what the claimant stated. She did not apply as she was waiting for her ROE to confirm her hours of employment. In its decision, the Board appears to have relied only on the Commission's statement in regard to the cause of the delay: "she chose to rely upon her preconceived notions to decide that she did not qualify". Furthermore, the Board states that the claimant "did not receive her ROE until September 30, 2002 but did not act when she received it". This constitutes a significant error of fact as to the date the ROE was received and to the effect that she did not act immediately. The uncontradicted evidence shows that the claimant did act forthwith after receiving her ROE shortly after October 30, 2002.

The claimant also pointed out that the Commission can delay in its procedural responsibilities as demonstrated by the delay of some two months by the Commission in advising the claimant of its decision in regards to her request for an antedate. The claimant was only advised of the Commission's decision after she wrote the Minister of HRDC to complain about the delay.

The Federal Court of Appeal in Albrecht (A-172-85) stated that test for good cause is whether the claimant acted as a reasonably prudent person would have in the same circumstances. In Caron (A-395-85), the Court held that to demonstrate good cause for a delay in applying for benefits, a claimant must show that he or she acted in the manner that "a reasonable person would have done in the same circumstances, either to clarify the situation regarding his or her employment or to determine his or her rights and obligations under the provisions of the Act".

In this case, after losing her employment, the claimant requested her Record of Employment to confirm her eligibility. She was then in the process of all the turmoils involved in relocating her family. She nevertheless pursued her efforts with the employer to obtain her ROE. As soon as she received it, she applied. Such conduct cannot be considered incompatible with the conduct of a reasonable person.

I therefore find that the Board erred in facts, based on the errors mentioned above, and in law in finding that the claimant's conduct did not meet the test of good cause for applying late as established by the Federal Court in the above mentioned jurisprudence.

Accordingly, the appeal is allowed. The Board's decision is set aside and replaced by my decision allowing the claimant's appeal of the Commission's decision.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
August 29, 2003