CUB 64942

GUY GOULARD, Umpire

The claimant worked for the Eastern School District from September 2, 2003 until March 12, 2004. On March 16, 2004, she applied for employment insurance benefits and an initial claim was established effective March 14, 2004. On July 13, 2004, the claimant renewed her claim and asked that it be antedated to March 14, 2004. The Commission refused to antedate the claim.

The claimant appealed the Commission's decision to a Board of Referees which dismissed the appeal. She appealed the Board's decision. This appeal was heard in Charlottetown, Prince Edward Island on November 24, 2005. The claimant was present.

The evidence in this case established that the claimant had applied for benefits in March 2004, as she had done in the past, so as to start her waiting period, knowing that she would be applying to renew her claim for the summer months as in the previous years. She explained that she had never received her reporting cards but had received a letter advising her that she would be receiving a reporting code but had never received this code. The letter she had received from the Commission (Exhibit 6-2) stated:

"Shortly after filing for benefits, you will receive a statement advising you of your 4 digit telephone access code and instructions on how and when to file your biweekly reports. Please note if you do not file your reports within 3 weeks of the date you are told to do so, you risk losing benefits."

The claimant never received her code. She went back to her employment and, in June, applied to renew her claim effective back to March so that she could benefit from the week she had been off in March towards the two-week waiting period.

In her letter of appeal to the Umpire, the claimant reiterated she had never received her reporting code and had failed to report as she would otherwise have done, had she had the code. She submitted she had made no mistake, had followed what she had been told to do and had simply waited for the information to be provided. She felt that an error had occurred at the Commission resulting in a failure to provide her with her reporting code.

The claimant appeared before the Board and reiterated what she had already stated in the appeal file. The Board reviewed the evidence and concluded that the claimant had not acted as a reasonable person would have because she had not enquired from the Commission. The Board recognized that the claimant had not received the information she had been told to expect. The Board failed to explain why the reason given by the claimant in her situation could not constitute a good reason for not taking further steps in regard to her claim. The uncontested evidence established she had been informed by the Commission she would be receiving further information but this never came and she then returned to work and failed to take further steps until June. Subsection 114(3) of the Employment Insurance Act requires that the Board's decision must include a statement of the findings of the Board on the issue of facts. That section reads:

114(3) A decision of a board of referees shall be recorded in writing and shall include a statement of the findings of the board on questions of fact material to the decision.

In Parks (A-321-97), Mr. Justice Strayer wrote:

"We are all in agreement that the Board erred in law in failing to comply adequately with subsection 79(2). Specifically we are of the view that it was incumbent on the Board to state, at least briefly, that it rejected critical parts of the evidence of the applicant on grounds of credibility, and why it did so."

And, in McDonald (A-297-97), Mr. Justice Linden wrote:

"It is imperative for Boards of Referees to address the issues actually presented to them carefully and to explain their findings in coherent and consistent reasoning. Anything less is unacceptable."

The Federal Court of Appeal in Albrecht (A-172-85) stated that the test to determine if a claimant has shown good cause for a delay in filing a claim is whether the claimant acted as a reasonably prudent person would have in the same circumstances, either to clarify the situation regarding his employment or to determine his rights and obligations.

In CUB 11100 Justice Muldoon, sitting as an Umpire, provides the following guidance for determining whether a claimant falls within the description of a reasonable person:

"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 "just" or otherwise deteriorate merely because of the effluxion of time, prodigious as."

In that particular case, the Commission had conceded that, if the Umpire was satisfied the claimant had made the telephone call to the general inquiries section of the Employment Insurance Commission and had received the misinformation as alleged by him, his appeal from the decision of the Board of Referees should be allowed.

In the case before me, the claimant had filed her claim and had been told she would receive further information. She received nothing further and this led her to take no further steps until she was ready to renew the claim. The Commission has to share the blame for the claimant's failure to file her reports as she should have done. The Board failed to take into consideration the claimant's explanations and the circumstances which caused her failure to report as she should have done. In doing so, the Board erred in law. In the claimant's circumstances, giving the purpose and objectives of the employment insurance system, I am satisfied that she has shown good cause for her delay and that she should be given an antedate.

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

Guy Goulard

UMPIRE

OTTAWA, Ontario
December 9, 2005