CUB 71047

Max M. Teitelbaum, Umpire

This is an appeal by the claimant from a decision of the Board of Referees which upheld the Commission's determination that he had not shown good cause for the delay in applying for benefits and therefore, was not entitled to have his claim for benefits antedated pursuant to section 10 of the Employment Insurance Act.

The claimant filed an application for employment insurance benefits on June 19, 2007, and a claim for benefits was established for him effective June 17, 2007 (exhibit 2). The claimant indicated in his application that his last day of work was March 28, 2007 (exhibit 2-5). When he was asked by the Commission why he delayed in filing his claim, the claimant indicated that he did not file sooner as he was expecting to go back to work with the drilling company right away. He wanted his claim to begin on April 1, 2007 (exhibit 3).

Based on the information before it, the Commission determined that the claimant had not shown good cause throughout the entire period of the delay in filing his claim for benefits. In the Commission's view, there was no evidence to demonstrate that the claimant was prevented from contacting the employment insurance office in order to obtain advice pertaining to the correct procedures regarding the filing of a claim for benefits. The Commission therefore denied the antedate request pursuant to subsection 10(4) of the Act (exhibit 4).

The claimant appealed to a Board of Referees on the grounds that he is computer illiterate and had a hard time finding someone to help him file his claim. He also submits that his former employer was giving him the run around about when he would be returning to work. All of this caused his delay in filing.

The Board of Referees dismissed the claimant's appeal stating its reasons, in part, as follows:

Any Appellant who wishes to claim benefits for an earlier period must first qualify at the earlier date and then must demonstrate that they had good cause for the entire period of the delay in making their claim. The Appellant must demonstrate that they acted as any reasonable person in the same situation would have done to satisfy themselves as to their rights and obligations under the Act.

In this case the Appellant said he was late in applying because he did not think the rig would be shut down that long (Exhibit 3). On his Notice of Appeal, he also stated that he was computer illiterate and did not know he had only four weeks to apply for benefits (Exhibit 5).

In Federal Court Decision A-172-85 the Court stated:

"It is to the claimant's conduct that the requirement of showing good cause for delay is directed".

The onus is always on the Appellant to apprise himself of his rights and obligations in the context of claiming and collecting benefits. Jurisprudence has established that ignorance of the law is not an excuse where an Appellant has not taken reasonable steps and made enquiries from the Commission or otherwise to inform themselves of the need for prompt application for benefits after losing employment.

In this case the Appellant did not file for benefits until June 19, 2007 (exhibit 2).

The Board therefore concludes that the Appellant did not show good cause in wanting his claim antedated between April 1, 2007 and June 19, 2007.

The Board found the Appellant to be sincere and credible.

The claimant now appeals to an Umpire on all three grounds set out in subsection 115(2) of the Act: that the Board breached a principle of natural justice; that it erred in law in making its decision; and, that it based its decision on an erroneous finding of fact. He does not provide any further explanation of his grounds of appeal.

Subsection 10(4) of the Employment Insurance Act allows a claimant, in some circumstances, to file an initial claim for benefit at a time later then when it ought to have been made. In order to receive antedate, a claimant must establish two things. First, that he or she was qualified to receive benefits on the date for which the antedate is sought; and, second that he or she had good cause for the delay between the date the claim is actually made and the date to which the claim is to be antedated (Canada (A.G.) A-371-93, [1994] F.C.J. No. 359 (F.C.A.)).

The most frequent issue arising in antedate cases is whether a claimant has established "good cause" for the delay in filing their claim. In order to establish "good cause" a claimant must demonstrate that he or she did what a reasonable and prudent person would have done in the same circumstances, either to clarify the situation regarding their employment or to determine their rights and obligations under the Act. Each case must be judged on its own facts and to this extent no clear and easily applicable principle exists (Canada (A.G.) A-172-85, [1985] 1 F.C. 710 (F.C.A.); Canada (A.G.) A-395-85, [1986] F.C.J. No. 85 (F.C.A.); Canada (A.G.) A-549-92, [1993] 3 F.C. D-10 (F.C.A.); Canada (A.G.) A-360-95, [1996] F.C.J. No. 179 (F.C.A.); A-205-96 Canada (A.G.), [1997] F.C.J. No. 1136 (F.C.A.); Canada (A.G.) A-242-05, [2005] F.C.J. No. 1850 (F.C.A.)).

In order to demonstrate good cause, it is not necessary for a claimant to show that there were circumstances over which he or she had no control and which prevented them from making a claim at an earlier date. The correct test is whether the claimant can demonstrate that he or she did what a reasonable and prudent person would have done in the same circumstances (A-175-87 Canada (A.G.), [1988] F.C.J. No. 269 (F.C.A.); Canada (A.G.) A-360-95, [1996] F.C.J. No. 179 (F.C.A.)).

Here, the Board applied the correct legal test but felt the evidence did not support a finding that the claimant had acted as a reasonable person since the onus was on him to make efforts to ascertain his rights and obligations with respect to his claim for benefits.

This case may be one of those cases where an Umpire, looking at all of evidence, might have come to a different conclusion than the Board of Referees. First, the evidence shows that the claimant was in touch with his employer and was trying to ascertain when he would start working again but was, in his words, "getting the run around". The claimant did not expect to be laid off for a long period of time and the Board accepted the claimant's evidence noting that he was sincere and credible. Second, the evidence also establishes that the claimant had made some sort of effort to file his claim because he knew that he could file his application by way of Teledec, but at the same time he realized that he was too computer illiterate to manage on his own and required assistance, which took some time to get. Finally, the delay is of a very short duration; he waited two months after his last day of work to file his claim but claimants are generally allowed a four week grace period between their last day of work and the date they file their application. In short, there are circumstances here which demonstrate that the claimant had good cause for the delay and that he had acted as a reasonable person would have in his situation.

For the above reasons, the appeal is allowed.

Max M. Teitelbaum

Umpire

OTTAWA, Ontario
September 2, 2008