CUB 70776

GUY GOULARD, Umpire

The claimant worked for a man from September 19, 2005, to October 15, 2005, and for a products company from May 15, 2006, to July 21, 2006. On December 11, 2006, he filed a claim for benefits taking effect on December 10, 2006. The claimant asked that his claim be antedated to July 30, 2006. The Commission refused to antedate the claim because the claimant failed to prove that he had good cause for the delay in filing a claim for benefits.

The claimant appealed the Commission's decision to a Board of Referees, and the Board dismissed his appeal. He appealed the Board's decision. That appeal was heard in Edmundston, New Brunswick, on April 15, 2008. The claimant attended the hearing.

In his request for antedating (Exhibit 5), the claimant said that during the week of August 6, 2006, he went to the employment centre office and was told by a Commission officer to come back once he had his Record of Employment and that nothing would happen until he had the document and he would not get his benefits any faster. He added that his employer was out of the country until December 8, 2006, and he was not able to get his Record of Employment before then because no one else could give it to him. He said that it was only his third claim for benefits, that he always wanted to work and that he had never abused the system.

In his notice of appeal to the Board of Referees, the claimant reiterated the explanations he provided in his request for antedating.

The claimant appeared before the Board of Referees with his employer from the products company. The claimant repeated several times that he went to a Commission office in the two weeks after he lost his job and was told by a Commission officer that he had to wait for his Record of Employment to file a claim for benefits. He contacted his employer in Tunisia to request his Record of Employment. The employer said he would give it to him as soon as he returned to Canada. Unfortunately, the employer did not come back to Canada until December and then gave the Record of Employment to the claimant, who immediately filed his claim for benefits. The claimant reiterated that he did not go back to the Commission's office because the Commission's officer had told him he would have to wait for his Record of Employment.

The employer confirmed that the claimant had contacted him in Tunisia to request his Record of Employment. The employer explained why the ROE could not be issued before he returned to Canada. He also stated that he had hoped to be back sooner and had even hoped to be able to rehire the claimant in the fall. The employer acknowledged that he was responsible for the delay in issuing a Record of Employment to the claimant. The employer also indicated that the other employees who were laid off at the same time as the claimant did not get their Records of Employment until December, but they were not adversely affected because they, unlike the claimant, did not need antedating to get the required number of hours of employment in their qualifying period. He made the point that it was unfair that the claimant should be denied benefits because it took so long to get his Record of Employment.

The Board of Referees reviewed the evidence and dismissed the claimant's appeal for the following reasons:

Claimants are advised to return and apply before the end of the fourth week following their layoff even if they have not received their Record of Employment.

A reasonable person in the claimant's situation would have contacted the office again to inquire as to the measures to take to resolve his problem.

Waiting for four months to submit a claim for unemployment does not constitute good cause under the Act, in light of the information in the docket.

Ignorance of the law does not constitute good cause under the Act for delaying to file for Employment Insurance benefits.

On appeal from the Board of Referees' decision, the claimant reiterated that the reason he was late filing his claim for benefits is that he was told by a Commission officer that he had to wait for his Record of Employment before filing his claim for benefits. He did everything he could to get his Record of Employment and filed his claim as soon as he received it. He did not contact the Commission again because he trusted the information he had been given.

It is well-established law that claimants who file a claim for benefits late because they were misinformed by a Commission officer about the procedure may have good cause for the delay in filing their claim (CUBs 18145, 16287, 37589 and 47115). In CUB 47115, Marin J. wrote:

The purpose of the legislation is to ensure that the Commission is kept aware of pending claims. The law is clear that a reasonable person must take the necessary steps to keep the Commission aware of pending claims; a claimant must pursue with some vigour a claim for benefits, be they regular or sick benefits. Can a reasonable and prudent person however be misled when the Commission takes equivocal steps and dispatches ambiguous correspondence? I am not of the view that the Commission can shelter itself from payment of benefits when it contributes directly to misguiding a claimant when fully aware of the pending claim. Ignorance of the law and forgetfulness are not generally acceptable excuses. Misinformation by the Commission must however provide good cause under s. 10(5) of the Act.

And in CUB 37589, Rouleau J. wrote:

Clearly, there are situations where misinformation from the Commission, or its failure to provide information when it is required, can affect a claimant's entitlement to benefits. A claimant who has taken all reasonable steps to apprise himself of his eligibility, will be seen to have established "good cause" for delay, where his failure to apply for benefits sooner is the direct result of erroneous information from the Commission. In CUB 11100, the Umpire considered what is to be reasonably expected of a claimant who has been given information by a Commission official which resulted in the failure to file a claim for benefits within the time prescribed by the Act:

If he did accept that advice, as he claims, then the claimant "did what a reasonable person in his situation would have done to satisfy himself as to his rights and obligations under the Act",

A reasonable person, being initially justified in accepting that apparently authoritative advice, naturally continues to accept it unless or until its error or untrustworthiness be brought to his attention.

The Federal Court of Appeal ruled in A-172-85 that even if a claimant fails to inquire about his or her rights and obligations regarding a claim for benefits, it is still necessary to consider all the circumstances that led the claimant not to inquire and determine whether the claimant did what a reasonable person would have done and whether the assessment is at least partly 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.

And in CUB 20088, Jerome J. added:

The purpose behind the antedate provisions is to ensure that individuals are not prevented, on purely technical grounds, from receiving benefits to which they are otherwise legitimately entitled. [...] Whether the claimant has met this test is a question of fact to be determined in the light of the special circumstances of each case. The claimant must demonstrate that she had good cause for delay in making her application throughout the entire period of the delay.

Examples of good cause for delay post-A-172-85 (1985) 1 FC 710 have included certain situations where the claimant has received misinformation from the Commission or a third party, where the claimant was inexperienced with the unemployment insurance system, and where the claimant had suffered from a serious illness or incapacity during the antedate period.

As Muldoon J. wrote in CUB 11100:

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 "rust" or otherwise deteriorate merely because of the effluxion of time, prodigious as it was.

In this instance, the claimant was late filing his claim for benefits because he was given incorrect information by a Commission officer. The claimant did everything he could to obtain his Record of Employment, and as soon as he received it, he filed his claim. He by all accounts established good cause for filing late within the meaning of subsection 10(4) of the Employment Insurance Act as interpreted in well-established case law.

I therefore find that the Board of Referees erred in law and in making the decision it made. The Board's decision is set aside. Based on the evidence in the docket, I am able to make the determination the Board of Referees ought to have made. The claimant's appeal is allowed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
July 16, 2008