CUB 71534

GUY GOULARD, Umpire

The claimant worked for a company until June 29, 2007. On October 11, 2007, he applied for employment insurance benefits and a claim was established effective October 7, 2007. The claimant requested to have his claim antedated to July 1, 2007 to obtain a better rate of benefit. The Commission refused the request to antedate the application because the claimant had not shown good cause for his delay in applying for benefits.

The claimant appealed the Commission's decision to a Board of Referees which allowed the appeal. The Commission appealed the Board's decision. This appeal was heard in Brandon, Manitoba on November 20, 2008. The claimant was present.

The reason given by the claimant for not applying earlier was that, following the loss of his employment, he had moved to follow his spouse. When he arrived in his new place of residence on July 27, 2007, he thought he would find employment without problem or delay. He was not familiar with the employment insurance system as he had never applied for benefits before.

In his letter of appeal to the Board of Referees, the claimant repeated that he had not arrived in his new place of residence until July 27, 2007, one month after leaving his employment. He had sent his resume to six potential employers in his new place of residence before moving. He had not received replies due to the fact that he was in the process of moving. He thought he had to wait for his record of employment before applying for benefits. He was not aware that he had to apply for benefits right away due to his lack of experience with the system. He began looking for employment right away and found a job selling cars on commission on August 8, 2007. He did not do well at this job due to his lack of experience. He then realized that he should apply for employment insurance benefits and proceeded to do so.

The claimant appeared before the Board of Referees and stated that he had called the Commission's 1-800 number and had been told that he would have to wait six weeks before applying for benefits. He therefore decided to move to his new place of residence and apply there. He took four weeks to move. He had looked for employment before and after his relocation. He found a job selling cars but did not earn much at that. He indicated that he had called the 1-800 number again and was told that he could apply for benefits and that his claim would be antedated without problems. During the third month at his employment selling cars things were going for the worse so he decided to apply for benefits. He had made arrangements with his employer that he would look for other employment while continuing to sell cars. He had applied at all the grocery stores in town as well as other places. He was waiting for the right opportunity to come along.

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

"The Board finds that he had good cause for delaying his application. The Board finds extremely credible the description of events leading to his decision to delay. As the claimant had never applied for EI benefits before, he did what a reasonable person would do and prior to his move to his new place of residence sought advice through the 1-800 number. Although the Board recognizes that the responsibility rests on the shoulders of the claimant to obtain the right information, the Board feels that as a newcomer to the system that the claimant did what a reasonable person would do by making the call to the 1-800 number and seeking advice. The Board finds that at that point, he would have no reason to "not believe" the agent helping him through the 1-800 number. Unfortunately, he was given misinformation that led him to delay his application until he got to his new place of residence.

Upon arrival in his new place of residence, he conscientiously obtained employment within 2 weeks of arrival, even accepting employment in a filed in which he was not accustomed nor experienced, just to get work. Once he had obtained that position, he did not believe that he would need EI benefits, so did not apply at that time. During his first month, his sales were excellent, and he believed that he could make a living in the position that he had secured. Even in the second month when things were not going so well, he was managing and believed the sale would pick up with experience. Throughout this time, he continued to apply for other positions and arranged with his employer to have time off for interviews that came up. In the third month when it became clearer that he would not be as successful in commissioned car sales as he had hoped, he once again sought advice from an agent at the 1-800 number who led him to believe that he could still apply for benefits and that due to his situation, that there would be no problem in back-dating the application. The Board finds that the steps that the claimant took to ensure future employment were adequate and that he took reasonable steps to make sure he was doing the right thing. The Board does not find fault with the claimant that he received wrong information from the 1-800 number."

On appeal from the Board of Referees' decision, the Commission submitted that the Board had erred in law when it concluded that the claimant had established just cause for his delay in applying for benefits pursuant to subsection 10(4) of the Employment Insurance Act. The Commission submitted that the claimant had failed to establish that he had acted as a reasonable person because he had failed to enquire as to his rights and obligations in regard to his claim under the Act. The Commission noted that the claimant had not mentioned, before his appearance before the Board, that he had communicated with the Commission and had been told that he had six weeks to apply for benefits and later that he could apply and there would be no problem in getting an antedate of his claim. The Commission submitted that this was not believable. The Commission submitted that more weight should be given to the claimant's initial reasons for not applying earlier, that is that he thought he would find employment and that he started working part-time while looking for other employment.

The claimant reiterated that he had acted in accordance with the information given by the Commission, that is that he had eight weeks to apply for benefits. He had by then found employment and thought he would not need to apply for benefits.

The Federal Court of Appeal has stated in a number of cases that the test to determine if a claimant has established good cause for a delay in presenting an application for employment insurance benefits is whether the claimant acted as a reasonably prudent person would have in the same circumstances, either to clarify the situation regarding his employment or to determine his rights and obligations (A-644-93, A-172-85, A-242-05). In A-172-85, Justice Marceau 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."

In that case, Justice Marceau also stated that the determination of the question of whether, in any given circumstances, a claimant has been able to establish that he has shown good cause for his delay in presenting his application for benefits by acting as a reasonable person entails a determination of facts.

In the case at bar, the Board applied the test established by the Federal Court of Appeal. It found that, based on the evidence, the claimant demonstrated that he had acted as a reasonable person and had enquired from the Commission in regard to his obligation. The Board based its conclusion on a detailed review of the evidence and arguments presented by the claimant.

The Commission submitted that the additional explanation given by the claimant at the hearing was not credible. The Board found that the claimant's description of events leading to his delay was "extremely credible".

The jurisprudence has unequivocally established that the Board of Referees is the primary tribunal for the finding of facts in employment insurance cases and that the role of an Umpire is limited to deciding if the Board of Referees' appreciation of facts is reasonably compatible with the evidence before the Board (A-547-01, A-600-93, A-115-94, A-255-95 and A-97-03).

In A-1036-96, Justice Marceau wrote:

"We are all of the opinion, after this lengthy exchange with counsel, that this application for judicial review of a decision of an umpire acting under the authority of the Unemployment Insurance Act is entitled to succeed. It is our view, in fact, that in contradicting as he did the unanimous decision of the Board of Referees, the umpire failed to remain within the limits of his power of review and supervision under the Act.
(...)
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."

And in A-97-03 (supra), Justice Sexton wrote:

"In A-610-01, supra, this Court held that applying the pragmatic and functional approach, where an Umpire is reviewing a decision of a Board involving a mixed question of fact and law, the standard of review should be reasonableness simpliciter. In 2003 FCA 377, this Court also held that whether an employee has just cause for leaving employment is a mixed question of fact and law to be reviewed on a reasonableness standard.

According to the Supreme Court of Canada in Law [2003] 1 S.C.R. 247, 2003 SCC 20, a decision is unreasonable only if there is no line of analysis within the reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived."

In the case at bar, the Board applied the correct test in the determination of the issue under appeal. I cannot find that, by applying the reasonable test as defined in Peace, the Board of Referees would have erred in its determination of facts.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
December 11, 2008