CUB 59372

R. C. STEVENSON, UMPIRE:

Ms. Cormaggi appeals from the decision of a Board of Referees dismissing her appeal from a ruling of the Commission denying her request for an antedate of her claim for benefits.

Ms. Cormaggi stopped working on January 5, 2002 because of pregnancy complications. She did not apply for benefits until June 7, 2002.

When Ms. Cormaggi stopped working subsections 12(3) to (6) of the Employment Insurance Act provided as follows:

(3) The maximum number of weeks for which benefits may be paid in a benefit period

(a) because of pregnancy is 15;

(b) because the claimant is caring for one or more new-born children of the claimant or one or more children placed with the claimant for the purpose of adoption is 35; and

(c) because of a prescribed illness, injury or quarantine is 15.

(4) The maximum number of weeks for which benefits may be paid

(a) for a single pregnancy is 15; and

(b) for the care of one or more new-born or adopted children as a result of a single pregnancy or placement is 35.

(5) In a claimant's benefit period, the claimant may combine weeks of benefits to which the claimant is entitled because of a reason mentioned in subsection (3), but the maximum number of combined weeks is 50.

(6) In a claimant's benefit period, the claimant may, subject to the applicable maximums, combine weeks of benefits to which the claimant is entitled because of a reason mentioned in subsections (2) and (3), but the total number of weeks of benefits shall not exceed 50.

On March 27, 2002 the Budget Implementation Act, 2001, S.C. 2002, c.9, (the amending Act) received Royal Assent. Section 13 of that Act added this sentence to subsection 12(5) of the Employment Insurance Act:

If the benefit period is extended under subsection 10(13), the maximum number of combined weeks is 65.

Subsection 10(13) of the Employment Insurance Act as enacted by the amending Act provides:

(13) If, during a claimant's benefit period,

(a) regular benefits were not paid to the claimant,

(b) benefits were paid because of the three reasons mentioned in subsection 12(3), and

(c) with respect to the reasons mentioned in paragraphs 12(3)(b) and (c), benefits were not paid for the maximum number of weeks established for those reasons,

the benefit period is extended so that benefits may be paid up to the maximum number of weeks available to the claimant for the reason mentioned in each of those paragraphs.

Subsection 15(2) of the amending Act provides that subsection 10(13) applies to a claimant for any benefit period that had not ended before March 3, 2002 or that began on or after that date.

When Ms. Cormaggi applied for maternity and parental benefits in June the Commission informed her that her application was approved, effective June 2, 2002, and that "Parental benefits, which are paid after the maternity benefits, will be payable for 35 weeks." Thus Ms. Cormaggi would receive a total of 50 weeks of benefits.

In her letter of appeal to the Board of Referees Ms. Cormaggi said:

The reason I'm applying at this time for benefits is because on January 5, 2002 I was told to stop working due to complications in my pregnancy. At that time when I called to inquire about sick benefits, I was informed that I could file, however, it would take away from my future weeks with my baby. Therefore, I chose not to file. On numerous occasions I called human resources to inquire about sick benefits, the last time being the last week of February 2002, and the policy was as it always was. They informed me that I could file for maternity and parental benefits 10 weeks prior to my due date and that is the very reason why I'm filing now.

Early June I called to confirm the okay in me applying now for maternity benefits. At that time the representative stated that there was a new legislation which came into effect on March 3, 2002 which allowed 15 weeks of sick benefits in addition to the time allowed for maternity and parental. The representative suggested for me to apply for retroactive payments on my sick leave and if I'm not mistaken, mentioned that if the claim could not be dated as far back as January 5, 2002, that they can go back 4 weeks prior to when the rule came into effect. I am asking to see if my claim can be anti-dated as of March 3, 2002 or at the earliest possible that you can go back. I would have filed for sick benefits at that time had I known legislation had changed because I was still on sick leave without pay.

In their decision dismissing Ms. Cormaggi's appeal the Board of Referees said:

The Board notes that legislation took effect on March 3, 2002, to extend the benefits period to the maximum special benefits limit from 50 to 65 weeks. The claimant based her decision not to file at the earlier date because of legislation as it existed at the time. She said she filed when she was told to file by HRDC, and she was off work when the law came into effect. She understands the legislation which came into effect on March 3^rd and asked if the Commission could antedate her claim to March 3^rd, which she requests in Exhibit 9. The Board requests the Commission re-examine Exhibit 9 to determine if the claimant can receive extended benefits.

Subsection 10(4) of the Employment Insurance Act provides:

An initial claim for benefits made after the day when the claimant was first qualified to make the claim shall be regarded as having been made on an earlier day if the claimant shows that the claimant qualified to receive benefits on the earlier day and that there was good cause for the delay throughout the period beginning on the earlier day and ending on the day when the initial claim was made.

The summary of the Budget Implementation Act, 2001 found in the statute books says, "Part 3 amends the Employment Insurance Act ... to extend the benefit period and the entitlement to special benefits for maternity claimants who, without the amendment, could not receive all of their special benefits."

The Bill had obviously been before Parliament for some time and the Commission would have been aware of its contents. The Commission would not, however, have been certain as to when, or even if, the Bill would be finally enacted. The Commission cannot be faulted for not informing Ms. Cormaggi in January or February that the law might soon be changed as to increase the number of weeks of special benefits to which she might be entitled.

Ms. Cormaggi did what a reasonable and prudent person would have done in the circumstances. She made inquiries of the Commission in January and February and was given correct information as of that time. She was entitled to assume that the law remained the same. When she learned of the change in the law she promptly sought to take advantage of it.

The situation is similar to that in CUB 37682. In that case the claimant had retired at age 65. Until two years before that, benefits had not been payable to those who attained the age of 65 years. I held that it was not unreasonable or imprudent either for the claimant to assume that the law was still the same after he retired or for him to fail to inquire as to whether the law had been changed.

The Board of Referees did not make any finding as to whether Ms. Cormaggi had good cause for delaying her claim from March 3 to June 7. That was an error of law. The Board effectively refused to exercise its jurisdiction when it requested the Commission to re-examine Exhibit 9 to determine if Ms. Cormaggi could receive extended benefits.

I will give the decision the Board of Referees should have given. The appeal is allowed and the matter is remitted to the Commission with a direction to antedate Ms. Cormaggi's claim to March 3, 2002.

RONALD C. STEVENSON

Umpire

FREDERICTON, NEW BRUNSWICK
November 14, 2003