CUB 67658

THE HONOURABLE W.J. HADDAD, Q.C., UMPIRE:

The Commission filed this appeal from a decision of the Board of Referees determining that the claimant showed "good cause" in submitting a delayed application for benefits.

The Employment Insurance Act, section 10(5) provides:

10(5) A claim for benefits, other than an initial claim for benefits, made after the time prescribed for making the claim shall be regarded as having been made on an earlier day if the claimant shows that there was good cause for the delay through the period beginning on the earlier day and ending on the day when the claim was made.

The claimant, a teacher, filed an application for unemployment benefits. On August 25, 2005 the Commission informed the claimant by letter that she would not be paid benefits from July 4, 2005 to September 2, 2005 because she was unable to prove her availability for work as she indicated she would only accept employment as a teacher. That span of time covered the end of a teaching term to the commencement of another term.

Subsequent to September 2, 2005, the claimant renewed her efforts, without success to find a position in the teaching profession and she assumed that because she continued to limit her search for employment to that of a teacher she remained disentitled to benefits. Finally in early December the claimant contacted the Commission and she was informed that she had been eligible for benefits since September 2, 2005. She filed a renewal application and a request to have her claim antedated to September 6, 2005. The claimant's request was denied by the Commission. She appealed to the Board of Referees.

The Board of Referees made a finding that it was reasonable for the claimant to believe she was not eligible for benefits and determined that she had shown good cause for delay in her renewal claim and allowed her appeal to have her claim antedated.

The Commission's ground of appeal is that the Board of Referees erred in law. The Commission contends that the claimant was not prevented from applying for benefits at an earlier date and that the notice sent to the claimant informed her that her disentitlement to benefits only covered the period of July 4, 2005 to September 5, 2005 - and that she did not exercise the invitation extended in the notice to contact the Commission for additional information or for more details. The Commission's submission is that the claimant did not, therefore, demonstrate that she acted in a reasonable manner to satisfy herself of her rights and obligations under the Act.

The leading decision dealing with issue of good cause is that of the Federal Court of Appeal in Canada (A.G.) v. Albrecht 1985 1 F.C. 710, 60 N.R. 213. Mr. Justice Marceau, writing for the Court, made this statement regarding the principles to be considered to determine just cause:

"Of course, I have no doubt that it would be illusory for a claimant to cite "good cause" if his conduct could be attributed only to indifference or lack of concern. I readily agree, too, that it is not enough for him simply to rely on his good faith and his total unfamiliarity with the law. But an obligation, with its concomitant duty of care, can be demanding only to a point at which the requirements for its fulfillment become unreasonable. 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 is of importance to keep in focus the fact that no clear principle exists and that each case must be judged on its own facts. Claimant's delay cannot be attributed to indifference or lack of concern. The claimant interpreted the reason given by the Commission to deny her benefits - because of the limitation she plans on her availability for work to that of a teacher - to be a general principle, of general application, which would apply beyond September 5, 2005 - and beyond that date she continued to limit her search for employment to the teaching profession. She believed that her rights and obligations had been communicated to her by the Commission. The substance of the decision of the Board of Referees is that the claimant's conduct, in that regard is what a reasonable person would have done in the same situation.

The rules provided by the Federal Court of Appeal allow some flexibility in determining good cause and, in my view, the Board of Referees cannot be faulted for having judged this case on its own particular facts to find that the claimant acted reasonably and that she showed good cause for her delay thereby entitling her, in the circumstances, to have her claim antedated.

It is my conclusion that the Board did not commit an error in reaching its decision.

The appeal is dismissed.

"W.J. Haddad"

W. J. Haddad, Q.C. - Umpire

Edmonton, Alberta,
January 16, 2007.