TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
- and -
IN THE MATTER of a claim for benefits by
Danielle ARSENAULT
- and -
IN THE MATTER of an appeal to an Umpire by the Canada Employment Insurance Commission from the decision of a Board of Referees given on August 2, 2005 at Baie-Comeau, Quebec
DECISION
GUY GOULARD, Umpire
The claimant worked for Cogeco Cable Canada Inc. from February 18, 2002 to May 28, 2004, when that employment terminated because the position was eliminated. At that time she received severance pay of $13,682.25. She had also worked for the Commission scolaire de l'Estuaire from May 15, 1997 to December 21, 2004, when she was laid off because of a work shortage. She filed a claim for benefits on March 22, 2005 and asked that her claim be antedated to May 30, 2004. The Commission concluded that the claimant had not shown good cause for her delay in submitting her claim for benefits and refused to antedate that claim.
The claimant appealed from the Commission's decision to a Board of Referees, which allowed her appeal. The Commission appealed from the decision of the Board of Referees. That appeal was heard in Baie-Comeau, Quebec on October 18, 2006. The claimant was in attendance.
In her application to antedate, the claimant indicated that she had delayed filing her claim for benefits because she had received severance pay and thought that she had to wait until the funds received were exhausted before she could be entitled to Employment Insurance benefits. In addition, she had continued working part-time for the Commission scolaire de l'Estuaire until December 21 and so was not unemployed. She had also been self-employed in a project which had ended in March 2005. Hence she knew that she was not entitled to benefits, and did not see the usefulness or relevance of filing a claim for benefits. When she did file her claim, the claimant discovered that in her qualifying period she had not accumulated the number of hours of insurable employment required to establish a benefit period. She therefore submitted her application to antedate, which would enable her to use the hours of employment she had accumulated prior to May 30, 2004 so that she could have a benefit period established.
In her appeal letter to the Board of Referees, the claimant said that she was not pleading ignorance, but rather that she had demonstrated that during the period of her delay she had worked, had looked for other employment, and had not been unemployed. She did not see why she should have filed a claim for benefits. She indicated that her attitude had been one of simple common sense, and added that "[Translation] that's kind of how it goes in life: the people who don't want to abuse the system end up being abused themselves."
The claimant came before the Board of Referees, where she repeated that she knew that she was not entitled to benefits for the various reasons mentioned above, and therefore she had not filed a claim for benefits. She repeated that she felt she had acted as a reasonable, responsible person would.
The Board of Referees reviewed the evidence and representations and allowed the claimant's appeal, for the following reasons:
The Board finds that the claimant had good reason to believe that she was not entitled to benefits by reason of her earnings (wages related to an employment and to self-employment) and that, given the circumstances, she acted as any reasonable person would have in not making her claim for benefits immediately after losing her job at Cogéco. Furthermore, granting her application to antedate would not adversely affect the Commission in any way. The Board bases its decision on the excerpt from the case law cited in Exhibit 8-2 at paragraph 5.
On appeal, the Commission has argued that the Board of Referees erred in fact and in law in deciding that the claimant had shown good cause for her delay in filing her claim for benefits pursuant to section 10(4) of the Employment Insurance Act because she had failed to inquire into her rights and obligations with respect to a claim for benefits.
I acknowledge that ignorance of the law and of the requirement to immediately file a benefit claim, or the fact of having received severance pay and the hope of being able to obtain employment, do not in themselves constitute good cause for a delay in submitting a claim for benefits. However, in Albrecht (A-172-85), the Federal Court of Appeal has established that, even when a claimant has failed to inquire into his rights and obligations with respect to a claim for benefits, it is necessary to consider all of the circumstances that led the claimant not to do so, and to determine whether he acted as a reasonable person would have done, adding that this involves an assessment which, at least in part, is subjective. Marceau J. wrote:
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.
It has also been established that a number of factors are to be taken into consideration in determining the reason for a delay in filing a claim for benefits:
The Board took all of these circumstances into consideration in arriving at its conclusion that the claimant had acted as a reasonable person would have done.
The case law informs us that the Board of Referees is the trier of the evidence and testimony presented to it. The Federal Court of Appeal made the following statement on this subject in Guay (A-1036-96):
In any event, it is the Board of Referees - the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts - that must make this assessment.
The case law (Ash (A-115-94) and Ratté (A-255-95)) further instructs us that an Umpire must not substitute his or her opinion for that of a Board, unless its decision seems to him or her to have been made in a perverse or capricious manner or without regard for the evidence before it, as is not the case in the present instance.
In the case at bar, the Board's decision is well founded on the evidence submitted.
Therefore, the appeal is dismissed.
Guy Goulard
UMPIRE
OTTAWA, Ontario
November 21, 2006