CUB 75313

Louis-Philippe LANDRY, Umpire

The Commission appeals from the determination of a Board of Referees, which allowed the claimant's appeal from the Commission's decision not to antedate to December 17, 2006 a benefit claim made on January 28, 2010.

The facts in this case are not really at issue. In December 2005, the claimant had filed a benefit claim, and a benefit period was established until December 16, 2006. In 2006 the claimant worked successively for two employers, with her final employment ending on October 1, 2006.

The claimant then went to a Commission office, and she gave to an employee her Record of Employment from her last employer. The employee then informed the claimant that the hours worked for the last employer would not allow her to receive benefits after December 16.

Further, it is conceded that had the claimant informed the employee of her hours of work for her first employer in 2006, she would have been entitled to benefits after December 16, 2006.

The claimant, relying on the notice she received, therefore did not take any other action at that time. The claimant stated, however, that she was available for work during the period after December 16, 2006. The record does not indicate what employment searches the claimant may have conducted after that date.

After exhausting her savings to cover her living expenses, the claimant had to seek last-resort assistance from the Ministère de la sécurité du revenu in January 2010. Following a conversation with a representative of that department, the claimant was advised that she probably would have been entitled to additional benefits in December 2006. The claimant therefore filed a claim for benefits with the Commission and requested that the claim be antedated to December 17, 2006.

The Board found that under these circumstances, the Commission had erred in denying the request.

The situation here is most peculiar. It is indeed settled law that such a claim must be made as soon as possible after a person becomes eligible for benefits. The reason is very simple. Once a benefit period has begun, the claimant must regularly attest to his or her availability for work and show that he or she is looking for employment. The later a claim is made, the more difficult it will be for the Commission to retroactively complete the follow-up that should have been done during the benefit period.

At issue here is therefore whether under the circumstances, the claimant did what a reasonable person would have done and whether the claimant had good cause for the delay.

It is settled law that in principle, ignorance of the law in and of itself does not constitute good cause. Similarly, a mistake caused by erroneous information obtained from a third party also does not in principle constitute good cause. The claimant's conduct is an important criterion in determining whether the reason given for the delay is valid. However, what about the mistake caused by misinformation obtained from a Commission employee?

Counsel for the Commission argues that there is no error here. The employee did not make a mistake on the basis of the information provided by the claimant, because the latter mentioned only her last job. This last employment could not be used to extend benefits past December 16.

The Board found that based on the evidence, the claimant "[Translation] received incorrect and incomplete information from the Commission." This finding of fact therefore does not seem to be unreasonable under the circumstances. It would have sufficed for the experienced employee to ask the claimant a single additional question and in so doing discover that she was eligible for benefits after December 16, 2006: "[Translation] Did you hold one or more jobs in 2006?" In the case of a claimant with little or no knowledge of the Act, the Commission employee is indeed obligated to offer assistance that goes beyond merely responding to a question asked by a person who has come to inquire about his or her rights.

The Board therefore found that the claimant was misled during her conversation with a Commission employee. The Board also found that this incomplete information gave the claimant good cause for the delay in making her claim. In fact, it was an employee of the Quebec Ministère des affaires sociales who, after inquiring about the claimant's employment situation in 2006, informed her about her rights.

The decision in Albrecht from the Federal Court of Appeal (A-172-85) can be useful in clarifying the issue here. In that case, an Umpire had found that not even incorrect information obtained from a third party can constitute good cause for delay in a situation where a claimant pleads ignorance of the law. The Federal Court of Appeal upheld that decision. Marceau J. writes as follows on the issue:

The Umpire in her reasons for judgment correctly reminds us that "it is to the claimant's conduct that the requirement of showing good cause for delay is directed". There is, indeed, an obligation which imports a duty of care required of a claimant and I readily agree that, to assure the prompt filing of claims, so important in the eyes of Parliament, that obligation and duty must be seen as being very demanding and strict. Of course, I have no doubt that it would be illusory for a claimant to cite "good cause" if his conduct could be attributed only to indifference or lack of concern. I readily agree, too, that it is not enough for him simply to rely on his good faith and his total unfamiliarity with the law. But an obligation, with its concomitant duty of care, can be demanding only to a point at which the requirements for its fulfillment become unreasonable. 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.

(emphasis added)

In this case, after reviewing the evidence, the Board found that there was good cause for the delay. Even though the period of time that elapsed before the claim was made may seem exceptionally long, it cannot be concluded that this decision is unreasonable under the circumstances.

For these reasons, the Commission's appeal is dismissed.

Louis-Philippe Landry

UMPIRE

Gatineau, Quebec
September 23, 2010