CUB 65711

GUY GOULARD, Umpire

The claimant worked for Lintek Holdings from June 22, 2004 until November 5, 2004. On January 17, 2005, she applied for benefits. The claimant requested to have her claim antedated to November 7, 2004. The Commission refused to antedate the application because the claimant had not shown good cause for her delay.

The claimant appealed the Commission's decision to a Board of Referees which allowed the appeal. The Commission appealed the Board's decision. This appeal was heard in Toronto, Ontario on March 2, 2006. The claimant did not attend. She had communicated with the Registrar to explain that she could not attend as she had just started a new job. She requested that a decision be made on the record.

The Commission submitted that the Board erred in law when it concluded that the claimant had shown good cause for her delay in applying for benefits. The Commission argued that the reason given by the claimant for her delay in applying for benefits was that she believed she needed her record of employment to apply and was waiting for this document. She had not enquired from the Commission in regard to her rights and obligations concerning to her claim. The Commission submitted that the claimant had not met the test established in the jurisprudence as to what constitutes good cause for a delay in applying for benefits. The Commission referred to jurisprudence which has established that good faith and ignorance of the law do not constitute good cause pursuant to subsection 10(4) of the Employment Insurance Act.

In this case, in her application for an antedate, the claimant explained that she was waiting to receive her record of employment. She added that she also did not have her pay cheque stub, which she later received. She attached a copy of the pay cheque stub to her application for an antedate.

In her letter of appeal to the Board of Referees, the claimant explained the difficulties she had encountered in getting her last pay cheque as well as her record of employment. She had even gone to the Ministry of Labour hoping that this would help resolve the matter quickly but it did not. She pointed out that due to the Christmas and New Year holidays the process was delayed. She described her multiple efforts to resolve the situation. When she was told by the Ministry of Labour that it would take as long as 120 days to complete their investigation, she contacted the Commission for advice as to what she could do. She was told to apply even if she did not have her record of employment. She then came in to apply without her record of employment.

The claimant appeared before the Board which reviewed the evidence and allowed the claimant's appeal for the following reasons:

"In her previous claims, she was always given her ROE the day she left. Therefore, the claimant honestly believed that she need her ROE before she could apply. She also believed that she had to hear from Ministry of Labour about her complaint before she could apply for employment insurance benefits. In addition, the claimant needed the money and she had no reason to delay applying for benefits.

Based on facts on file and the foregoing, the Board concurs to allow the claimant's appeal, pursuant to subsection 10(4) of the Act.

We find the claimant very credible and find that she had a good cause for delay throughout the entire period of delay. She did not get her ROE until March, 2005 and acknowledgment from Ministry of Labour on January 14, 2005."

I find that in this case the Board considered the cumulative effect of the reasons given by the claimant for her delay in applying for benefits. Of crucial relevance is the short period of the delay in applying for benefits, which included the Christmas holiday period, combined with the claimant's personal belief, based on past experience, that she needed her record of employment to apply for benefits. This is not a situation where the claimant's delay was of months but approximately 6 weeks beyond when the application should have been filed. During this period, the claimant was not idle and not showing interest in her claim. To the contrary, she actively pursued her efforts to obtain the document she believed she required to file her claim. When told that she should apply without her record of employment, she immediately did so. I find that the claimant has provided good reasons for her delay, taking into consideration all her circumstances and efforts to deal with her situation. Considering the social nature of the Employment Insurance Act, the benefit of the doubt should be given to claimant in such situations rather than use the legislation to prevent a claimant from receiving benefits. This was well stated by Justice Muldoon in CUB 9958:

"Parliament never enacted that ignorance of this law is just more tough luck for those unemployed who are not so learned, literate or sophisticated as to make timely claims. Here the subject is not a contemptible cheater, but an ordinary decent claimant who was late. The policy of the Act is to confer benefits for which claimants have paid their premiums, not to find arcane excuses for withholding benefits. Again, from this perspective, Parliament's intention in enacting subsection 20(4) appears to be quite clear: the adjudicator has only to determine whether this claimant, in these particular circumstances, has shown "good cause for his delay" in applying for benefits. The adjudicator is not called upon, every time he or she descries a tardy claimant's ignorance of this complex law, to bludgeon the tardy application into oblivion. Ignorance of the law, especially if it be wilfully self-inflicted could certainly be determinative against a tardy claim, or of any proceeding in which the claimant bears the burden of demonstrating good or just cause for departing from the norms imposed by this insurance plan. It is only one factor which the adjudicator must consider, but it does not work an automatic or inevitable foreclosure upon the tardy claimant's application for benefits, because that is clearly not Parliament's intention in this regard."

And in CUB 16498, Justice Joyal commented on the necessity of considering all the relevant factors in determining if good cause has been shown for a delay in applying for benefits and, in particular, the length of the delay. He wrote:

"To the innocent claimant, it is not sufficient to show that he didn't know the rule. He must show that in all circumstances of the case, he acted as a reasonable person. This principle was made clear by the Federal Court of Appeal in Attorney General of Canada v. Albrecht, [1985] 1 F.C. 710. The length of the delay in filing might also be considered. For example, Chief Umpire Jerome in CUB 12454, Foley, ruled that waiting for a record of employment might be good cause where, in the case before him, the delay was only three weeks, a ruling which he could distinguish from the one in CUB 10994, Middleton, where the delay on the same grounds had been three months."

An Umpire's jurisdiction is limited by subsection 115(2) of the Employment Insurance Act. Unless the Board of Referees failed to observe a principle of natural justice, erred in law or based its decision on an erroneous finding of fact made in a perverse manner or without regard for the material before the Board, an Umpire is required to dismiss an appeal.

In Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01) Justice Létourneau stated that the role of an Umpire is limited to deciding if the Board of Referees' appreciation of facts is reasonably compatible with the evidence before the Board.

The Commission has not shown that the Board of Referees erred in its decision. To the contrary, the Board's decision is well founded on the evidence presented which established that the claimant had shown good cause for her delay in applying for benefits.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
April 20, 2006