CUB 70956

Hon. David G. Riche

The issue in this case was whether or not the claimant had good cause for applying late for benefits and should be denied an antedate pursuant to s. 10(4) of the EI Act.

The claimant was wrongfully dismissed and the matter has been in the hands of her lawyer for the past couple of years. The claimant said she contacted the EI office at the time and was told she would not qualify for benefits because she had been dismissed from work. It was not until May 17, 2007 that she obtained a letter stating that the charges had been dismissed. The claimant has taken action for wrongful dismissal. That was the reason why she did not file for employment insurance because she was unsure if she could. The Commission were of the view that the claimant did not show good cause throughout the entire period in filing her claim for benefits.

The Board of Referees found that under subsec. 10(4) that: "An initial claim for benefits made after the day when the claimant was first qualified to make the claim shall be regarded as having been made on an earlier day if the claimant shows that the claimant qualified to receive benefits on the earlier day and there was good cause for the delay throughout the period beginning on the earlier day and ending on the day when the initial claim was made."

The Board of Referees then referred to the test as set forth in the Federal Court of Appeal decision A-172-85 where it was stated whether the claimant did what a reasonable person in his situation would have done to satisfy himself as to his rights and obligations. The Board of Referees in their conclusion found that what the claimant did in this case was reasonable to believe that 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 the claim antedated. The Board found that she did what a reasonable person would have done.

The Commission in its appeal refers to Exhibits 4 and 5. In Exhibit 5 the claimant stated that she called the employment insurance and was told that she would not qualify for benefits because she had been dismissed from her employment. She thought she wouldn't be entitled with the situation hanging over her head. When the case was dismissed, her lawyer advised her to file her claim because her record of employment was good for two years.

The Commission relies on the case of CUB 66294. In that case the umpire stated: "Surely a reasonable person would have known that taking an action for wrongful dismissal may take years to complete and they may not be as successful in that action as they may have believed. It is my view in these circumstances the claimant did not do what a reasonable person would have done."

In this case it appears to me that the claimant would ordinarily not be entitled to an antedate because of her failure to make her claim for benefits at an appropriate time. Waiting for the outcome of a wrongful dismissal case does not provide the claimant with a good cause for delay. In this case, however, the claimant was told by a person working for the Commission and therefore the Commission advised the claimant that it would be no good to apply for benefits. Because of this statement, which should have never been made by the employee of the Commission, the claimant did not file. In these circumstances, I am satisfied that the claimant should be entitled to the antedate as determined by the Board of Referees as it was the wrongful action of the Commission which caused her to delay making her claim. It is my view that a reasonable person when told by the EI Commission that they would not qualify for benefits because of dismissal would not apply. The fault lies with the Commission. They should never tell a person applying for benefit that they would not qualify until it has been properly considered by the Commission and the claimant notified in writing with reasons.

For these reasons the appeal of the Commission is dismissed.

David G. Riche

UMPIRE

August 5, 2008
St. John's, NL