IN THE MATTER of the EMPLOYMENT INSURANCE ACT
and
In the matter of a claim for benefits by
George WARD
and
IN THE MATTER of an appeal by the Commission from the decision of a Board of Referees given on January 29, 2003 at Kamloops, British Columbia
DECISION
GUY GOULARD, Umpire
The claimant worked for Sid's Construction Ltd from May 22, 2002 until July 12, 2002. On November 6, 2002, he applied for employment insurance benefits. The Commission informed the claimant that he did not have the required minimum number of hours of insurable benefits in his qualifying period to establish a claim. On December 7, 2002, the claimant requested to have his claim antedated to his last day of employment (Exhibit 7). He indicated that he had not been aware earlier that he had been laid-off and had just been informed of this. The Commission refused to antedate the application because it determined that the claimant had not shown good cause for his delay.
The claimant appealed the Commission's decision to the Board of Referees which unanimously allowed the appeal. The Commission appealed the Board's decision. This appeal was heard in Kamloops, British Columbia on March 5, 2004. The claimant was present. The Commission was represented by Ms. Naomi Wright who submitted that the Board erred in its decision.
The claimant appeared before the Board and explained that he was working for his employer on an on-call basis and would wait to be called to report for work. When he had not been called for a period of time, he communicated with this employer and was told that he had been laid-off. He requested his record of employment, which was issued October 16, 2002, and he applied within 30 days of receiving this document. He reiterated that he had not applied earlier because he did not believe he was without a job.
The Board concluded that by applying within 30 days of finding out he was unemployed, the claimant had shown good cause for his delay.
The Commission submitted that the Board erred in not applying the proper legal test for good cause for the delay in filing for benefits. The Commission submitted that the claimant had not acted as a reasonable person would have in the same circumstances, which would have been to inquire as to his rights and obligation in regard to his claim.
The claimant reiterated that he had not applied as he believed he was still employed. He explained that he was often not working for periods of weeks but would then be called back. He indicated that, as soon as he was told he would not be called back, he requested his record of employment and applied within a couple of weeks of receiving this document. He believed that he acted reasonably.
It has been held in CUBs 13000A, 15236A and 24908 that a belief that one is still employed or confusion as to one's employment status can constitute a good cause for delaying an application 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.
In Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01) Justice Létourneau stated that the role of an Umpire is limited to deciding if the Board of Referees' with the evidence before the Board
The Commission has not shown that the Board of Referees erred in its decision. To the contrary, the Board's decision is entirely compatible with the evidence before the Board and with the jurisprudence.
Accordingly, the appeal is dismissed.
Guy Goulard
UMPIRE
OTTAWA, Ontario
March 12, 2004