IN THE MATTER of the EMPLOYMENT INSURANCE ACT
- and -
IN THE MATTER of a claim by
W.B.
- and -
IN THE MATTER of an appeal to an Umpire by the Commission from the decision of a Board of Referees given on March 9, 2010 at Gander, Newfoundland and Labrador
GUY GOULARD, Umpire
The Commission appealed the Board of Referees' decision allowing the claimant's appeal from its decision refusing to antedate a claim for employment insurance benefits from June 28, 2009 to June 14, 2009.
The facts in the case at bar are somewhat complicated, as they relate to the establishment of fishing claims. The basic facts can be summarized as follows:
The claimant appealed the Commission's decision refusing to antedate his Winter Fishing claim to a Board of Referees which allowed his appeal. The Commission appealed the Board of Referees' decision to an Umpire. This appeal was heard in Gander, Newfoundland and Labrador on September 2, 2010. The claimant was present and represented by Mr. N.F.
The explanation initially given by the claimant for not requesting that his Winter Fishing claim be established on June 14, 2009 instead of June 28, 2009 was that the person who had filed his application on his behalf had made an error in indicating the later date as the starting date. The importance and consequence of this error was not brought to his attention until his Summer Claim was denied.
At the hearing before the Board of Referees, the claimant's representative pointed out that the claimant attended school only up to grade 2 or 3 and that he can neither read nor write. He has to rely on others to file his claims. He stated that the person who had filed for his Winter Claim had made an error in indicating that the claimant wished his claim to be established effective June 28, 2009 instead of June 14, 2009. In previous years, his daughter had filed his applications. The claimant told the Board that he did not understand these types of things or "this stuff" as he put it.
The Board of Referees reviewed the evidence as well as some jurisprudence and found that the claimant was unable to comprehend the antedate process. The Board concluded that the claimant had established good cause between June 14, 2009 and January 21, 2010 in applying late for benefits within the meaning of section 10 of the Employment Insurance Act (the Act). The Board allowed the claimant's appeal.
On appeal from the Board of Referees' decision, the Commission submitted that the Board had erred in law and had failed to take all the evidence into consideration in concluding that the claimant had established good cause for his delay in applying for benefits. The Commission submitted that the issue was not whether the claimant had understood the antedate process but whether he had shown good cause for his error in stating the date when he wanted his claim to be established. The Commission submitted that the claimant was aware of the process to establish fishing claims as he had filed such claims in the past. The Commission submitted that the Board of Referees' decision should be set aside and the claimant's appeal from its decision refusing to antedate the claim should be dismissed.
The claimant's representative emphasized that the claimant had very limited education and did not read or write. He had never understood how the employment insurance process worked and had always relied on others to file his claims. The claimant's difficulties in understanding the process had been compounded by the possibility of establishing two fishing claims within a year. The representative submitted that the Board of Referees had accepted that the claimant's reasons for requesting an antedate constituted good cause pursuant to subsection 10(4) of the Employment Insurance Act. He submitted that the Commission's appeal should be dismissed.
Subsection 10(4) of the Employment Insurance Act provides as follows:
10(4) 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.
In the case at hand, the claimant had applied within the time prescribed for filing his claim. The problem the claimant eventually encountered and which required an antedate of his claim had resulted from an error by the person who had prepared and filed his application. This explanation was accepted by the Board of Referees.
I agree that the Board of Referees could conclude that the reasons given by the claimant for requesting that his claim be antedated warranted that the claim be antedated. On June 14, 2009, the claimant could establish a claim and would have done so had the person filing the claimant on his behalf not erred in specifying a different date. This was not a situation of a delay in filing a claim but one where the claimant was asking that an error be corrected by antedating his claim by a few days.
An appeal to an Umpire is made pursuant to subsections 115(1) and (2) of the Act. The only grounds for such an appeal are found in subsection 115(2), which reads as follows:
115.(2) The only grounds of appeal are that
(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
In this case the Commission has not established that the Board of Referees erred in the interpretation or application of the relevant legislative provisions or jurisprudence or in its finding of facts thereby warranting that I substitute my opinion for that of the Board.
The appeal is accordingly dismissed.
Guy Goulard
UMPIRE
OTTAWA, Ontario
September 24, 2010