CUB 59980

GUY GOULARD, Umpire

The claimant established a renewal claim for benefits effective September 9, 2002. He requested to have his claim antedated to March 11, 2002. The Commission determined that the claimant had not shown good cause for his delay and refused the request to antedate the application.

The claimant appealed the Commission's decision to the Board of Referees which, in a majority decision, dismissed the appeal. He appealed the Board's decision. This appeal was heard in Toronto, Ontario, on January 23, 2004. The claimant attended with his son, Pablo Spatzner.

The claimant's explanation for not renewing his claim immediately after his appeal from an earlier Commission decision was allowed in March 2002 was that he had called the Commission on several occasions and had not been able to obtain any information. During the period from March to September 2002 he was also under the effect of bereavement following the death of his wife in March.

The Board's majority decision to dismiss the claimant's appeal reads, in part, as follows:

"The doctor's letter did not provide any proof or statement regarding the effects of bereavement on the claimant. Secondly, the claimant called the Commission several times to enquire about his status and he obtained that there was no activity on his card. Any reasonable person would enquire with the Commission, in person, to find out why there was no activity on his card especially when he needed the money."

The minority member noted in his reasons that the claimant's doctor had confirmed that the claimant suffered from bereavement for the period from March to September 2002 and that during this period the claimant had called the Commission. The claimant provided the numbers he had called. He pointed out that the Commission had not sent any reporting cards following the Board's decision allowing the claimant's appeal in March 2002.

The minority member's decision reads as follows:

"I find the Commission also did not assist the claimant by giving him instructions on how to proceed following the March 19, 2002 decision, nor did the Commission send report cards for the claimant to proceed. In discussing with the Commission regarding the claim, I find that the claimant could have had his claim start earlier had he been offered an antedate to September 1 and had his severance pay allocated earlier and then give an extension of the benefit period. Although these were not issues for consideration today, it shows the Commission was not prepared to be proactive to assist this claimant from the beginning and I hope this will not unduly influence the claimant to pursue any future benefits to which he may be entitled."

In its written representations to the Board (Exhibit 10-1), the Commission had acknowledged that "the claimant made no efforts to put in his report cards or make any inquiries until he renewed his claim on 18 September 2002". The document goes on to indicate that the claimant had told the Commission that he had expected forms to be sent to him and that he had called several times only to be told that there was no change on his file.

I fully agree with the Board's minority member that the Commission had not been proactive in helping the claimant in this file. Notwithstanding the fact that he had won his appeal, his file did not indicate any change in his status. He had attempted on several occasions to inquire and had not succeeded.

It is well established in the jurisprudence that to show good cause for his delay in applying for benefits, a claimant must show he acted as a reasonable person (Larouche (A-644-93), CUB 42135). In CUB 42135, the Umpire wrote:

"The test to be applied in determining whether a claimant has shown good cause for a delay in making a claim is whether she did what a reasonable and prudent person would have done in the circumstances."

I find that the Board's majority failed to take into consideration the claimant's evidence as to his total circumstances. He did provide a medical certificate as to his bereavement. How could he provide a full description of how that affected him is difficult to perceive. As Iris Murdoch wrote in The Sacred and Profane Love Machine (1974), "Bereavement is a darkness impenetrable to the imagination of the unbereaved". And, in his autobiography, Mark Twain wrote: "It will take mind and memory months and possibly years to gather together the details and thus learn and know the whole extent of the loss". Furthermore, the majority failed to consider that the claimant had attempted on several occasions, during this difficult period of his life, to obtain information from the Commission.

I find that the Board's majority based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it. The claimant had tried to inform himself on several occasions and he was under the burden of bereavement following the death of his wife at a time that coincided with a Board decision entitling him to benefits. He expected to receive reporting cards which never came. I find that his actions can only be recognized as those of a reasonable and prudent man.

Accordingly, the claimant's appeal is allowed and the Board's majority decision is set aside.

Guy Goulard

UMPIRE

OTTAWA, Ontario
January 30, 2004