CUB 62630

Hon. David G. Riche

The claimant established a claim for benefits on December 1, 2002. The Commission wrote the claimant on January 10, 2003 and advised her how her vacation pay affected her claim. The Board of Referees stated that the letter used the words "Once you are eligible for benefits you will have a two week waiting period during which no benefits can be paid to you. If you have new or additional information which could change this decision", she was to provide it. The claimant who had poor English did not fully understand the letter and assumed she was not eligible for benefits at that time. It was not until September of 2003 when talking to Social Services that she was informed that she was eligible for benefits and should have received a telephone access code in order to proceed with her claim. She then sought to have her claim antedated to December 1, 2002.

The Commission denied the claimant's request as they were satisfied that she failed to prove she had good cause for the delay in filing her claim.

The Board of Referees heard from the claimant's husband and they were of the view that the claimant had shown good reason why she had not proceeded with her claim. The Board also referred to the Albrecht decision (A-172-85), Federal Court of Appeal, which showed that ignorance of the law is not sufficient reason to show good cause. She must show that she did what a reasonable person would have done in the situation. The Board of Referees found that under the circumstances the claimant did what a reasonable person in her situation would have done. They stated that a more experienced person more familiar with the process might have challenged the Commission's decision to determine whether or not she was eligible for benefits.

The Board of Referees went on to refer to a decision of Madam Justice Reid where she stated: "A striking feature of the procedure is that a claimant's ability to comply with the manner and time requirements is, to a considerable extent, in the hands of the Commission. If for some reason the reporting cards are not sent, or are sent late, ... or the claimant is not adequately instructed as to the manner in which the Commission requires a claim to be made, then the claimant will not meet the manner and time requirements... and will be disentitled to benefits."

For the reasons stated by the claimant the Board was of the view that her claim was reasonable under the circumstances and allowed her appeal.

From that the Commission appeals that decision. The basis of the Commission's appeal is that the Board of Referees made an error in law when it concluded that the claimant had shown good cause for not completing her report as required.

The claimant had filed a claim for benefits after losing her employment when the business was sold. She established a claim effective December 1, 2002. She was then advised by letter on January 10, 2003 that her vacation pay would be allocated to her normal weekly earnings and the balance of $148 was going to be allocated for the week December 1, 2002. And then the letter said: "Once you are eligible for benefits, you will have a two week waiting period during which no benefits can be paid."

I note at this stage that there is no evidence that the Commission sent the claimant any cards or any information as to how she should report to the Commission. Nor was there any indication from the Commission that she would start receiving benefits after the two week period.

The Commission has brought forth jurisprudence to show that difficulty with the English language is not a good reason for not filing as required. They refer to the case of CUB 10406 where Justice J. McNair found that: "Thus an argument that the language barrier alone resulted in ignorance of the law which was the reason the claimant was not aware of the necessity of filing at a prescribed time would be unsuccessful." And Justice Murdock in CUB 47262B stated: "While the claimant's first language is not English, there is no evidence that he made any attempt to determine the significance of the notice he received... There is no evidence that he did what a reasonable person would have done in his situation, that is make inquiries as to his rights and obligations."

In order to resolve this matter I have analyzed Exhibit 9-6 which was the letter sent by the Commission to the claimant. First it states what has already been stated, that the vacation pay must be allocated to her benefit and that seems clear enough. And then they state that no benefits will be paid for the period November 27, 2002 to November 30, 2002 and a balance of $148 would be allocated for the first week of December. Then it states, once you are eligible for benefits you will have a two week waiting period during which no benefits can be paid to you. I find this statement to be ambiguous to say the least. Surely the claimant, when she had her claim approved when she filed, knew she was eligible for benefits but they would not be received until after the two week waiting period. Surely a clearer wording is mandated. I myself have difficulty with that sentence as it is written. Presumably in this case the claimant was going to receive benefits after the two week waiting period unless something irregular showed up. The next step would have been for the Commission to send to the claimant waiting cards or information as to how she should report using the teledec system. This is not the case. And then the Commission for some strange reason puts in a paragraph which states that if you disagree with our decision you can appeal it within 30 days.What is there to appeal? There is no suggestion by the Commission in this case that the claimant is going to be denied benefits but yet the letter gives the import that she is not eligible for benefits. The letter stated "you will have a two week waiting period before you start to receive benefits" and then a statement that reporting cards or other information will be forwarded to her to explain how she should proceed.

It is my view that clearer wording is needed whether or not this letter was sent to somebody proficient in English or having difficulty with it. It is my view that the Commission failed to properly explain to the claimant that she was going to be eligible for benefits after the two week waiting period. The letter, in my view, is misleading and I agree with the decision of the Board of Referees.

For these reasons the appeal of the Commission is dismissed.

David G. Riche

Umpire

December 10, 2004
St. John's, NF