CUB 63514

R. C. STEVENSON, UMPIRE:

Ms. Ralbosky appeals from the decision of the majority of a Board of Referees dismissing her appeal from a ruling of the Commission denying an antedate of her claim for benefits from June 4, 2004 to August 25, 2003.

Ms. Ralbosky lost her employment on August 22, 2003. The record of employment issued by the employer at that time contained the usual caution that If you delay in filing a claim for benefits more than 4 weeks after you stop working, you may lose benefits to which you would otherwise be entitled. That record of employment did not mention any severance pay. A second record of employment issued by the employer in December 2003 showed severance pay of $55,554.

Ms. Ralbosky did not apply for benefits until June 2004. A Commission agent spoke with her by telephone on June 21. The Commission's record of that call was entered on a form headed Notification of Unfavourable Decision. Under Comments on the interview the agent entered the following:

Called claimant to advise the decision (BPNE N-1). Claimant was upset. Asked claimant why she did not file any earlier? Claimant states she didn't think she was going to be out of a job for so long and also due to severance pay. Advised claimant I will send out an Antedate form for her to complete and we will review our decision upon reply - states she understands.

I do not know what BPNE N-1 means. It may mean a rejection of the claim for insufficient hours of insurable employment as Ms. Ralbosky filed a notice of appeal to the Board of Referees on June 28 saying she was appealing a decision to that effect. (There is no written decision in the file up to that time). On that notice of appeal she said:

When I lost my job in August 2003 I phoned the employment insurance call centre and was told I would not be eligible for employment insurance payments until June 2004, because of the severance I received. I applied for employment insurance in June 2004 and was told my EI payments should have started on April 18, 2004. However, because I waited until June 2004 to apply for EI benefits my application was denied because I do not have sufficient hours of insured employment. I would like my application for EI to be backdated so that I am eligible for benefits effective April 18, 2004.

On July 15 the Commission sent Ms. Ralbosky a letter saying her claim could not start on August 25, 2003 because she did not show that between August 25, 2003 and June 4, 2004 she had good cause in applying late for benefits.

On July 29 Ms. Ralbosky formally applied for an antedate. On that application she said:

On or about Aug. 27, 2004 [sic] I contacted HRDC by telephone to inquire about the process to file for EI benefits. I explained that I would be receiving $55,000.00 for severance payments and asked the agent what I should do. I was informed that I was not eligible for EI benefits until my severance ran out, which would be in June 2004 according to her calculations. Therefore, based on her directives I did not file until June 2004.

The Commission denied the antedate on August 10 noting previously adjudicated - CCS D40 already sent.

On August 16 Ms. Ralbosky appealed to the Board of Referees referencing the Commission's letter of July 15.

In their decision the majority of the Board of Referees said:

In the case at hand, the Board had to make its decision based on a balance of probabilities. The claimant states that she made her call on or around August 27, 2003 but the Commission has no record of it. It would appear that if such a call was made during which the Commission representative had to make a calculation about the claim, that a record would have been kept, but there is no record.

The Board also considered the fact that the claimant made a single call in August 2003 and then made no other call to the Commission for the next 10 months to verify the initial calculation. If the claimant was depending on the information received from the Commission when she had only an approximate idea about her severance amount, why didn't she call the Commission again in December 2003 when she came to know the exact amount of her severance payment?

The Board also considered the claimant's response to the reason for delay as not knowing that she was going to be out of a job for so long and also due to severance (Exhibit 4). The claimant did not indicate at that stage that she had been directed by the Commission to wait until June 2004.

Taking into consideration all the evidence and basing on a balance of probabilities, the claimant didn't make the call to the Commission on or about August 27, 2004 [sic] to enquire about the claim. The claimant made a personal choice not to apply for benefits until June 2004. The Board also considered that the claimant did not fully read the Record of Employment and did not refer to the back of the document for more information. She claims she was upset by her termination. basically, the claimant did not do what a reasonable person in her situation would have done to satisfy herself as to her rights and obligations under the Act.

Good cause for the delay has not been proven. The antedate is denied.

The majority referees contradicted themselves. In the second quoted paragraph they said they considered the fact that the claimant made a single call in August 2003." Two paragraphs further on they said she did not make that call. The dissenting referee was in no doubt that the call was made.

If the majority actually found that Ms. Ralbosky did not make the call they apparently relied on the absence of any record of the call being made by Commission staff. Umpires hear of the absence of such records so frequently that it is entirely believable that no record of a call was kept, particularly since Ms. Ralbosky had not, at that time, claimed benefits and no file would have been opened in the Commission offices.

In my view the conclusion of the majority that Ms. Ralbosky did not call the Commission in August 2003 was unreasonable.

The question remains: Did Ms. Ralbosky have good cause for delaying her application for benefits? In CUB 37589 which was cited by the dissenting referee Justice Rouleau said:

Each case is to be examined on its own facts, using a partially subjective appreciation of the circumstances. In Hamilton v. Attorney General Canada (1988), 91 NR 145, the Court of Appeal held that what constitutes good cause is always a question of fact. In that case, the Court, quoting from its decision in Attorney General of Canada v. Gauthier (A-1789-83, October 9, 1984) stated:

At the very least, in our view, good cause must also include circumstances in which it is reasonable for a claimant consciously to delay making a claim. The courts should not impose artificial impediments to a laudable restraint on the part of a claimant who reasonably delays making a claim for benefits.

Clearly, there are situations where misinformation from the Commission, or its failure to provide information when it is required, can affect a claimant's entitlement to benefits. A claimant who has taken all reasonable steps to apprise himself of his eligibility, will be seen to have established "good cause" for delay, where his failure to apply for benefits sooner is the direct result of erroneous information from the Commission. In CUB 11100, the Umpire considered what is to be reasonably expected of a claimant who has been given information by a Commission official which resulted in the failure to file a claim for benefits within the time prescribed by the Act:

If he did accept that advice, as he claims, then the claimant "did what a reasonable person in his situation would have done to satisfy himself as to his rights and obligations under the Act".

A reasonable person, being initially justified in accepting that apparently authoritative advice, naturally continues to accept it unless or until its error or untrustworthiness be brought to his attention.

Ms. Ralbosky was told she could not receive benefits until the allocation of her severance pay ran out. She was not told that, regardless of that fact, she should immediately file her application for benefits. In those circumstances she had good cause for delay and her claim should have been antedated.

Shortly after the hearing of this appeal I requested the recording of the Board of Referees hearing. I have only received th tape in the last few days. That is the reason for the delay in giving my decision.

The appeal is allowed and the antedate is allowed.

Ronald C. Stevenson

Umpire

FREDERICTON, NEW BRUNSWICK
May 16, 2005