CUB 63271

R. C. STEVENSON, UMPIRE:

The Commission appeals from the decision of the majority of a Board of Referees allowing Mr. Rutherford's appeal from its ruling denying an extension of time for him to appeal to the Board of Referees from its ruling that he was disqualified from receiving unemployment benefits because he had voluntarily left his employment without just cause.

The Commission's disqualification ruling was made on November 13, 2003. His notice of appeal to the Board of Referees was dated March 12, 2004 and was date stamped as being received by the Commission on March 19. He stated his reason for delay as follows:

With the passage of several months I am now convinced more than ever that I did resign with just cause and should have received regular benefits together with appropriate job counselling/retraining.

The Commission did not accept that as constituting special reasons that would justify an extension of time pursuant to subsection 114(1) of the Employment Insurance Act.

In his notice of appeal from that ruling Mr. Rutherford said:

As stated in my previous appeal, my case is based on being in an overworked and overstressed situation (both business and personal) the magnitude of which I did not realize until after the 30-day period had elapsed (i.e. when I had found myself in a far less stressful situation).

He made further written and oral submissions to the Board of Referees. In their decision the Board of Referees said:

He stated that it took some time to stand back from the situation to realize that he did have a case. He thought that when you resign your job, you are not eligible for benefits. After reconsidering and learning more, he realized he did have a case for voluntarily leaving his job.

He was under much stress at the time that he resigned.

When the Commission agent spoke to him as to why he had not applied earlier, it took him by surprise and he was unable to discuss the situation adequately. He had begun to look for a new job before he resigned and continued from the time he resigned.

FINDING OF FACT, APPLICATION OF LAW

If a claimant has not filed his request to appeal within 30 days and wants to antedate his claim he must show "good cause" why he did not make the claim earlier.

The claimant waited several months to appeal the Commission's decision not to allow regular benefits. He indicated that it was only at this later date that he realized he had just cause to voluntarily leave his job. Previously he had been too stressed.

The majority of the Board notes that the claimant was conducting a job search from the time he left his job. It also notes that it was reasonable for him to believe that he was not eligible. His research, with a clearer mind, indicated to him that he might be eligible.

The majority of the Board finds that in the interest of natural justice he should be given the opportunity to present his case.

The Board of Referees seems to have confused the question of extending time for an appeal with issues of antedating a claim for benefits.

Subsection 114(1) of the Employment Insurance Act provides that a claimant may appeal from the decision of the Commission to the Board of Referees at any time within 30 days after the day on which the decision is communicated to him or such further time as the Commission may allow in any particular case for special reasons. Subsection 10(4) of the Act allows the Commission to antedate a claim if there was good cause for the delay in applying. The Federal Court of Appeal has said that the test of "special reasons" is not necessarily limited to whether there was good cause for delay in commencing an appeal. Cardamone v. Canada (Attorney General), [1997] F.C.J. No. 650 (QL); File No. A-432-96.

Although there is no medical evidence in the record it is apparent from the record that Mr. Rutherford was indeed under stress both in the workplace and at home where he was the single parent of three teenage children. He says that because of his Scottish background it is part of his culture that one who quits his job is considered to be at fault.

The Board of Referees did not use the magic words "special reasons' but rather referred to "good cause" and the "interest of natural justice." I must find that the Board erred in failing to apply the proper test.

As there is no dispute about the facts and no issue of credibility I will give the decision the Board of Referees should have given.

I find that the stressful situations in which Mr. Rutherford found himself were special reasons that justify an extension of time for him to appeal to the Board of Referees.

The Commission's appeal is therefore dismissed.

Ronald C. Stevenson

Umpire

FREDERICTON, NEW BRUNSWICK
March 11, 2005