CUB 72513

R. C. STEVENSON, UMPIRE:

The Commission appeals from the decision of a Board of Referees allowing the claimant's appeal from its ruling that it could not pay him benefits from January 21, 2007 to August 9, 2007 because he did not complete reports for that period. The ruling was made in response to an antedate application the Commission received from the claimant on January 16, 2008.

The claimant applied for benefits on December 12, 2006 and a benefit period was established. He successfully made a Teledec report on January 23, 2007 for the weeks of January 7 and January 14, 2007. He received benefits for those two weeks. He did not submit any other reports.

The claimant was employed from August 2007 to January 2008 when he was laid off. When he then applied for benefits his claim was refused because he did not have enough hours of insurable employment during his qualifying period. Service Canada told him to apply for benefits from January to August 2007. He did apply but his application was rejected on the ground that he did not have good cause for delay in submitting bi-weekly reports for the weeks in question.

In his notice of appeal to the Board of Referees the claimant said:

As new comer to Canada I had luck [sic] of understanding in English on procedures and steps on how to apply for weekly benefits and wasn't aware on total weeks of entitlement that I could have received. As a result I didn't submit claimant's reports and benefits were terminated for this reason.

The Board of Referees said:

The claimant indicated through his translator that he did not receive the benefit payments for which he was eligible because of his lack of English language skills, the shortage of information from Service Canada and because he thought he had exhausted all of his benefits with the initial claim, which was not the case.

...

In this case, did the claimant's reason for returning a late report constitute good cause? The claimant indicated that he had problems when trying to give his third report through Teledec. The access code that had worked for him before did not work the third time. The Umpire in Caverly v. Canada (CUB 50753) has ruled that complications using the Teledec system might have some impact on the failure of a claimant to make his bi-weekly reports. ...

In this case, because of the difficulty that the claimant had in accessing Teledec and because of his limited knowledge of Employment Insurance benefits due to his language barrier and lack of assistance from Service Canada, the Board finds the Commission's decision was incorrect. The Board finds that the claimant acted as any reasonable person would have acted in the same situation and showed that he had good cause for the delay.

Subsection 10(5) of the Employment Insurance Act provides:

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 throughout the period beginning on the earlier day and ending on the day when the claim was made.

The time prescribed is found in section 26 of the Employment Insurance Regulations:

(1) Subject to subsection (2), a claim for benefits for a week of unemployment in a benefit period shall be made by a claimant within three weeks after the week for which benefits are claimed.

(2) Where a claimant has not made a claim for benefits for four or more consecutive weeks, the first claim for benefits after that period for a week of unemployment shall be made within one week after the week for which benefits are claimed.

Whether a claimant had good cause for delaying a claim is a question of mixed law and fact. In order to establish good cause a claimant must show that he did what a reasonable person in his position would have done to satisfy himself as to his rights and obligations under the Employment Insurance Act. Whether a claimant has met that test is a question of fact.

The Board of Referees applied the correct legal test. With respect to its finding of fact that the claimant acted as any reasonable person would have acted in the same situation, the standard of review I must apply is that of reasonableness.

The Board of Referees reviewed all of the relevant evidence and in my view the Board's findings and conclusion were reasonable.

The Commission's appeal is dismissed.

Ronald C. Stevenson

Umpire

FREDERICTON, NEW BRUNSWICK
May 19, 2009