TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
O.H.
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IN THE MATTER of an appeal to an Umpire by the Commission
from the decision of a Board of Referees given on
January 19, 2010, at Saint-Jérôme, Quebec.
GUY GOULARD, Umpire
The claimant was employed by JJL Déboisement Inc. until September 4, 2009. On November 16, 2009, the claimant filed a benefit renewal claim, which was established as of November 16, 2009. On November 16, 2009, the claimant requested that his claim be antedated to September 4, 2009. The Commission refused to antedate his claim on the grounds that the claimant failed to show good cause for the delay in filing his claim for benefits.
The claimant appealed from the Commission’s decision to a Board of Referees, which allowed his appeal. The Commission appealed from the decision of the Board to the Umpire. That appeal was heard at Sainte-Agathe-des-Monts, Quebec, on October 4, 2010. The claimant was in attendance.
The claimant had provided different explanations for the delay in filing his claim for benefits. He was waiting to be called back and indicated that he had a history of call-backs after many lay-offs; the earnings reported on his Record of Employment did not match what he believed to be his actual pay. He had tried to verify his pay stubs, but these were at his father’s home and he was away on an extended hunting trip. He did not get a call-back on November 1, 2009, and then realized that the situation would go on for some time due to economic circumstances. He added that he was unaware that he only had four weeks to file a renewal claim and believed he could request that his claim be antedated and thus recover benefits for the period of the delay.
The claimant attended the Board of Referee hearing and reiterated his explanations for the delay in filing his benefit renewal claim. He indicated that he had often filed benefit claims and always waited to receive his Record of Employment. He sometimes exceeded the 28-day period for filing his claims and never suffered any consequences. He had had some difficulties with one of his claims because he had not received his Record of Employment. Also, there had been communication problems in discussing the issue of his Record of Employment with a Commission Officer.
The Board of Referees reviewed the evidence and allowed the claimant’s appeal for the following reasons:
[Translation]
The test to apply is whether the claimant had good cause for the delay in filing his claim for Employment Insurance benefits during the entire period of the delay. In other words, the claimant must be able to show that he did what any reasonable person in the same situation would have done to ascertain his obligations and rights under the Act.
It is clear in this case that the claimant has experience in filing Employment Insurance claims as he has completed claimant’s reports before.
However, when a claimant fails to file a claim for benefits within the prescribed time, the Board of Referees must take into consideration all the evidence.
The claimant was concerned about experiencing the same problems he had when he filed his previous claim for Employment Insurance benefits. He wanted to make sure he understood and had the right figures on his Record of Employment from January 2009 to July 2009 before contacting the Commission. He believed that he was in the right because, in the past, he had always waited for his Record of Employment before filing his claims and wanted to provide the Commission with tangible evidence from his pay stubs so as to prevent the delays he had experienced in his previous claim.
Taking into consideration all the new facts introduced by the claimant regarding the reasons for his delay, the Board based its decision on the case law (CUB 65711 and CUB 56969).
Appealing the decision of the Board of Referees, the Commission argued that the Board had erred in fact and in law in finding that the claimant had shown good cause to justify the delay in filing his claim for benefits. Counsel for the Commission noted that the case law has established that good faith is insufficient to establish good cause to justify a delay in filing a claim for benefits within the meaning of section 10(5) of the Employment Insurance Act, which was narrowly interpreted by the Federal Court in McBride (A-340-08) and Brace (A-481-07). I note that in Brace the claim for benefits was 16 months late. In McBride, Décary J. stated that the Umpire could only intervene if the Board’s decision was unreasonable, and that is a question of fact.
The Federal Court of Appeal has established that it is important to take into consideration all the circumstances that caused the claimant to delay filing his claim, and this appreciation of the situation is at least partially subjective. As Marceau J. 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 obligation 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)
It has also been established that a number of factors must be taken into consideration in determining the issue of cause for filing a late claim for benefits:
According to the Federal Court of Appeal in McBride (supra), I may not intervene in the decision of a Board of Referees unless it has been shown that the Board’s decision was unreasonable. This principle was reiterated in the following decisions: Guay (A-1036-96), Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01), McCarthy (A-600-93), Ash (A-115-94), Ratté (A-255-95) and Peace (A-97-03), in which the Court established that an Umpire may not substitute his or her opinion for that of a Board of Referees, except where he or she finds that its decision was made in a perverse or capricious manner or without regard for the material before it.
In this case, the Board took into consideration all the evidence before it and its decision is entirely consistent with this evidence and with the well-established judicial interpretation of section 10(5) of the Act.
The appeal is therefore dismissed.
Guy Goulard
UMPIRE
OTTAWA, Ontario
October 29, 2010