CUB 62792

A.Gobeil, Umpire

The claimant appeals the unanimous decision of a Board of Referees who upheld the Commission's refusal to antedate her claim for benefits.

It is important to cite the following excerpt of the Board's decision:

"The Board of Referees does not understand the Commission's position as stated in exhibit 7.2. On the contrary, they believe that the claimant has done all the reasonable efforts to obtain the proper information from the Commission when she came back from Toronto. The claimant was very credible and the Board of Referees does not have any reason to doubt that the information given by the Commission was wrongful. It is unfortunate that the claimant has to be penalized, because the jurisprudence does not consider as a reasonable ground the fact that the claimant has received a wrong information. Therefore, the antedate cannot be allowed to April 28, 2002.

Consequently the claimant does not have accumulated enough insurable hours between June 1^st, 2003 and May 29, 2004 to be entitled to receive benefits.

The Board of Referees, unanimously, upholds the Commission's decisions and dismisses the claimant's appeal."

It is true that a constant case law holds that a "wrong information" given by the Commission does not create any right in favour of the claimant. One of the main decisions on the matter was given by the Federal Court of Appeal in Granger v Canada, A-684-85.

Such jurisprudence does not mean however that a wrong information cannot be used to explain the good faith of a claimant in adopting a certain behaviour after having received such bad information. To me the present case is a good example of such a situation.

Here, the claimant had the burden to show that she had a good cause for her delay to file a claim.

After having tried without success to find work she consulted Carrefour Jeunesse Emploi for help in her search for an employment. She then discovered that she could have filed for a claim when she lost her job and that she would have had her right assessed. She immediately filed a claim. It is clear, reading the decision at bar that she would have filed a claim if it had not been of the false information she received from the Commission's agent.

The facts in the present case, as pointed out by all members of the Board, clearly indicate that the claimant showed good cause for applying late. A reasonable person would have acted the way she did. She trusted the person who, representing the Commission, ill-informed her.

In CUB 11100 Justice Muldoon writes

"The question then is to determine what is expected of a "reasonable person". Now a reasonable person is not an anxiety-ridden paranoiac who doubts or disbelieves an apparently authoritative word of advice to the point of seeking to verify that advice again and again, daily or periodically, lest the advice be erroneous. A reasonable person, being initially justified in accepting that apparently authoritative advice, naturally continues to accept unless or until its error or untrustworthiness be brought to his attention. That exactly describes the claimant's course of conduct, which was that of a reasonable person. After all, the original justification does not "rust" or otherwise deteriorate merely because of the effluxion of time, prodigious as it was."

In the case at bar, I would make mine what wrote G. Goulard in the Pellichero matter (CUB 52237):

"In the case before me the claimant had failed to apply earlier because of his belief, confirmed by misinformation, that he was disqualified. When he was given the correct information he applied. I am therefore satisfied that he has shown good cause for his delay and that his claim for benefits should be antedated."

For the forgoing reason, the claimant's appeal is granted which means that is also granted the request to have her claim antedated.

The matter will then be returned to the Commission for a determination of the claimant's benefits.

Albert Gobeil

Albert Gobeil, Umpire

Montreal, Province of Quebec
January 20, 2005