CUB 75982

MAX M. TEITELBAUM, Umpire

This is an appeal by the Commission from the unanimous decision of a Board of Referees (Exhibit 14).

The issue in this case, as stated by the Board of Referees, is as follows: [Translation] Should the Commission have accepted or denied the request to antedate a claim made by the claimant under section 10(4) of the Employment Insurance Act?

Although the Board of Referees clearly defined the issue under appeal, it should have added the words [Translation] given the special circumstances in this case.

The facts, as established by the Board of Referees, are as follows:

The claimant:

• had a benefit period established effective January 21, 2010, which became effective on December 27, 2009;

• was employed with Carrière Plus Inc. from October 26, 2009, to December 24, 2009, with Adecco from July 20, 2009, to September 4, 2009, with Services de personnel from May 4, 2009, to June 19, 2009, and with Costco from May 17, 2008, to July 26, 2008;

• stated that she was employed until February 8, 2009, and contacted the call centre on January 22, 2010;

• stated that she was off work from July 25, 2008, to February 2009;

• stated that she had sought information from her former employer Costco and twice from Employment Insurance and, at both places, was told that her chances for eligibility were not good because she had voluntarily left her employment;

• pointed out that she had been misinformed by Costco and by a Service Canada officer (Exhibits 12-1 and 12-2);

• acknowledged that she had not fully explained her situation because she was in no condition to discuss it openly.

In its decision, the Board of Referees found as follows:

[Translation]
FINDINGS OF FACT, APPLICATION OF LAW

The Board of Referees must decide whether the claimant had good cause to justify the delay in filing her claim for benefits.

The Board of Referees noted the following facts:

• The claimant stopped working for Costco for mental health reasons on February 8, 2009;

• She asked her employer whether she was entitled to receive benefits; the Commission told her that she was not since she had left her employment voluntarily (Exhibits 8, 10 and 12.1);

• Even though the claimant’s sister-in-law confirmed that information, she nonetheless contacted a Commission officer who again confirmed that, in a case of voluntarily leaving employment, she would not be entitled to receive benefits (Exhibit 8);

• The claimant was not in a normal state of mind; she was suffering from mental health issues and depression until January of 2010;

• The claimant again tried to ask the Commission about her rights when she was in more stable condition; she was able to state her reasons for quitting, and it was that Service Canada officer who suggested that she file a request to antedate her claim(Exhibit 8);

• On February 3, 2010, the Commission received the medical information substantiating her mental state (Exhibit 9).

It is clear to the Board that, despite fragile mental health, the claimant took steps to inquire as to her rights immediately upon leaving Costco. She asked persons in authority (her employer and, on two occasions, the Commission) and therefore had no reason to doubt that she was not entitled to receive benefits.

The Board notes that she inquired, not once, but on several occasions throughout the year and received no conflicting replies. She therefore had no reason to suspect that everyone was mistaken.

The Board points to the decisions in E.Q., CUB 65079, and A.B., CUB 1110, which state:

A reasonable person is not an anxiety-ridden paranoiac who doubts or disbelieves an apparently authoritative word of advice to the point of seeking to verify that advice again and again, daily or periodically, lest the advice be erroneous.

The Board of Referees further notes that the claimant promptly followed the advice of the Commission officer once she was informed that she should file a request to antedate her claim and forwarded her medical record (Exhibit 9).

Taking into account all the circumstances of the claimant’s situation since she left her employment, the Board considers that the claimant did in fact act as a reasonable person would have done in similar circumstances. The reasons the claimant gives for the delay are therefore credible and logical.

DECISION

The Board of Referees unanimously allows the claimant’s appeal.

Claimants are responsible for the prompt filing of their claim for benefits. In its representations, the Commission stated:

• The claimant was employed by Carrière Plus Inc. and stopped working there on December 24, 2009 (Exhibit 3);

• On January 21, 2010, she filed a claim for benefits, made effective December 27, 2009 (Exhibit 2). (The Commission wishes to note that it had advised the claimant that she could not be paid benefits because she only had 531 hours of insurable employment and she needed at least 560 hours. However, a review of her file revealed that she could qualify for benefits as of December 27, 2009, because she actually had 658 hours of insurable employment and not 531);

• On January 22, 2010, the claimant requested that her claim for benefits be antedated to July 27, 2008. She did not file her claim by January 21, 2010, because she had reportedly been misinformed by her employer and a Commission officer. More specifically, she alleged that she stopped working for her employer Costco in July of 2008 due to illness and received a salary insurance allowance until February of 2009. When she decided to leave her employment with Costco on February 8, 2009, she asked her employer, who told her that she would not be entitled to receive Employment Insurance because she had left her employment voluntarily. She also stated that she had contacted a Service Canada officer, who reportedly gave her the same information. She added, however, that she did not explain the whole situation to her employer or to the Service Canada officer when she inquired as to the possibility of receiving Employment Insurance benefits (Exhibits 7, 8 and 10);

• On February 16, 2010, the Commission notified the claimant that her claim for benefits could not start on February 9, 2009, as she did not prove that from February 9, 2009, to December 25, 2009, she had good cause to justify her delay in filing her claim (Exhibit 11);

• On March 29, 2010, the claimant appealed that decision (Exhibit 12).

The Commission also made the following submissions:

The Commission argued that the Board of Referees erred in fact and in law in its interpretation of good cause and in its application of the facts to the legal test, which is to determine whether the claimant acted as a reasonable person would have done to satisfy herself as to her rights and responsibilities under the Act
(Canada (AG) v. Brace, 2008 FCA 118).

The Commission argued that the Board of Referees did not adequately assess the evidence in the record and did not correctly apply the relevant case law. The Commission considered that the claimant was negligent and pointed to no circumstances that would have prevented her from filing the benefit claim within the prescribed time. She could not be considered to have acted reasonably and therefore had no good cause, as required by the Act
(Canada (AG) v. Albrecht, A-172-85; Canada (AG) v. Carry, 2005 FCA 367).

The Commission argued that it could not determine that the claimant had been misinformed. According to her own statement, the claimant did not explain the whole situation when she inquired about the possibility of obtaining benefits.

The Commission argued that the fact that a Commission employee gave bad advice, if in fact that was the case, does not necessarily establish that the claimant acted reasonably. A reasonable person would have applied for benefits and then seen if she was eligible
(Malitsky v. Canada (AG), A-205-96 (CUB 32904)).

I am satisfied that the particular circumstances of this case, namely the claimant’s illness, the fact that she attempted to inquire about the possibility of filing a claim for benefits, the fact that the Commission itself erred in its initial determination that the claimant could not receive benefits due to insufficient hours of insurable employment and the fact that a Commission employee misinformed the claimant, constitute good cause to justify the claimant’s delay in filing her claim for benefits.

The decision of the Board of Referees is consistent with the legislation and the case law and must therefore be upheld. The Commission’s appeal is dismissed.

Max M. Teitelbaum

UMPIRE

Ottawa, Ontario
November 25, 2010