CUB 64793

GUY GOULARD, Umpire

The claimant established a claim for sickness benefits effective February 1, 2004. She received 15 weeks of sickness benefits. She then applied for regular benefits on February 11, 2005. The Commission refused to establish a claim because the claimant had not accumulated the required minimum number of insurable hours in her qualifying period to be entitled to benefits. She required 665 hours of insurable employment and she had accumulated no insurable employment since January 30, 2004. On March 13, 2005, the claimant requested to have her claim antedated to May 5, 2004. The Commission determined that the claimant had not shown good cause for her delay in applying for benefits and denied the request for an antedate.

The claimant appealed the Commission's decision refusing to antedate her claim to a Board of Referees which dismissed the appeal. She appealed the Board's decision. This appeal was heard in Brantford, Ontario on October 26, 2005. The claimant was present.

The reason given by the claimant for her delay in applying for benefits was that she believed she was still employed and therefore could not apply for benefits. She fully expected to return to work and regularly took doctor's reports on her recovery progress, hoping she would be able to resume her employment. Each time she was told to take more time to complete her recovery. Before the Board, the claimant stated that, while she was unemployed, she had called the Commission and had been told that she might have to apply for a disability pension and had been sent an application in this regard. She stated that, as soon as she was informed that her employment had been terminated, she considered herself unemployed and applied for benefits.

The Board reviewed the evidence and concluded that the claimant had not shown a good cause for her delay as she had not contacted the Commission to inquire as to her rights and obligations in regard to a claim for benefits. The Board found it difficult to understand why the claimant had not contacted the Commission during the several months she had no income.

It has been held that a person's belief that he or she is still employed can provide a good cause for a delay in applying for benefits (CUBs 15236A and 24908). In CUB 15236A, Justice Strayer wrote:

"He also asserts that once reemployed he was under no obligation to file an early claim because, according to the jurisprudence, if one thinks one is employed this provides good cause for not filing a claim. Such jurisprudence relates to ambiguous situations where one thinks one has a job to which to return when in fact one does not."

And in CUB 24908, Justice Rouleau stated:

"Though I am in agreement that the Albrecht decision supports the fact that Parliament intended strict observance of the rules with respect to applying for benefits, and this, in order to facilitate the work of the Commission, it nevertheless states that determining "good cause" for late filing "is not a question of fact and discretion but a question of fact and characterization. The issue is one of mixed fact and law." An Umpire can interfere in some circumstances with the decision rendered by a Board of Referees. This decision upheld the proposition that ignorance of the law is not "good cause" for delay but the circumstances of the case before me are different. Mr. Justice Marceau wrote the following:

In my view, when a claimant has failed to file his claim in a timely way and his ignorance of the law is ultimately the reason for his failure, he ought to be able to satisfy the requirement of having "good cause", when he is able to show that he did what a reasonable person in his situation would have done to satisfy himself as to his rights and obligations under the Act. This means that each case must be judged on its own facts and to this extent no clear and easily applicable principle exists; a partially subjective appreciation of the circumstances is involved which excludes the possibility of any exclusively objective test. I think, however, that this is what Parliament had in mind and, in my opinion, this is what justice requires.

The Court of Appeal concluded that what must be considered is what "would be expected of a reasonable person"."

In the present case, the claimant was doing all she could to return to the employment she believed she still had. On a regular basis she would attend at her doctor's office to obtain a medical report on her recovery to bring back to her employer. She considered herself to still be employed and therefore not entitled to employment insurance benefits. This does not constitute misunderstanding of law and legal rights but of her status which was unclear. She was in fact still employed and hoping to be able to resume her employment. The Board erred in law in not recognizing this.

Accordingly, the appeal is allowed and the Board's decision is set aside.

Guy Goulard

Umpire

OTTAWA, Ontario
November 10, 2005