CUB 76454

The Honourable R.J. Marin

This Commission appeal was heard in Toronto on January 27, 2011.

The Commission is appealing a decision of a Board of Referees which set aside the ruling of the Commission to the effect the claimant was not entitled to an antedate, under the provisions of s. 10(4) of the Act.

The Commission alleges the decision of the Board is flawed in law, and the claimant is not eligible for benefits as a result of the lengthy delay between the initial date on which the claimant ought to have applied and the actual application for benefits.

The Commission reminds me the principle, propounded by the Federal Court of Appeal in Albrecht (A-172-85), was improperly applied. The legal test for good cause is whether the claimant acted as a reasonable person in his situation and satisfied himself as to his rights and obligations under the legislation.

The relevant section of the Act is found at subsection 10(4), which reads:

An initial claim for benefits made after the day when the claimant was first qualified to make the claim shall be regarded as having been made on an earlier day if the claimant shows that the claimant qualified to receive benefits on the earlier day and that there was good cause for the delay throughout the period beginning on the earlier day and ending on the day when the initial claim was made. (Italics are mine)

As highlighted, good cause for delay must be established throughout the period. In this case, the period was almost two years. The onus is on the claimant to establish he acted as a reasonable person in similar circumstances.

The claimant searched the website and stated to the Board of Referees he did not find the appropriate directions on the Service Canada website which would direct him to the mandatory filing for benefits in a timely manner. When his spouse discovered she was entitled, it triggered his application 23 months later. There is no evidence the claimant made any efforts or inquiries during the entire 23 months. Can it be said he was diligent in seeking to assert his rights and obligations? The Board should have addressed this issue.

The Board established as a fact, at Exhibit 13-4, it was only when his wife was applying for benefits and an agent pointed out that moving to join a spouse constituted just cause for voluntary leaving a job, the claimant filed a claim and requested an antedate. The Board, in its analysis, alluded to the issue of the website and agreed with the claimant the site was unduly complex and did not properly give the information he required to file his application.

The law is not overly complex; however, the onus is on the claimant to satisfy a court or a board he acted reasonably throughout the extended period of delay. If the site was too complex or incomplete, he had an obligation to explore other venues to obtain the information sought. The claimant admits to having filed for benefits before and had a certain familiarity with the system. However, he claims the website was inappropriately developed and did not communicate the information he needed.

As counsel for the claimant stated, each appeal must be dealt on a case by case basis, having regard to the particular facts in each appeal. The fact remains that, in order to respect the provisions of the law developed over time, the claimant must show he acted as a reasonable person throughout and the mistake about one’s eligibility or confusion about filing a claim does not establish good cause for the delay. For this proposition, I refer to Brace, 2008 FCA 118, Beaudin, 2005 FCA 123, Carry, 2005 FCA 367, and Kokavec, 2008 FCA 307.

With the greatest respect, I cannot subscribe to the decisions brought to my attention, which disregard the clear principles established by the Federal Court of Appeal in that regard. This appeal is quite different than others where a claimant is misinformed by an employee of the Commission or where the claimant, as a result of a serious health problem, is precluded from actively seeking information.

I cannot allow the Board’s decision to stand where it erred in fact and in law. Its decision is quashed. The Commission appeal is allowed, and the initial ruling of the Commission is upheld.

R.J. MARIN

UMPIRE

OTTAWA, Ontario
February 14, 2011