CUB 76922

IN THE MATTER of the EMPLOYMENT INSURANCE ACT

and

In the matter of a claim for benefits by
B.Y.

and

IN THE MATTER of an appeal to an Umpire by the Commission
from a decision of a Board of Referees given on
April 20, 2010 at Kitchener, Ontario

DECISION

The Commission appeals a decision by the Board of Referees which allowed the claimant an antedate pursuant to subsection 10(4) of the Employment Insurance Act.

Mr. B.Y. filed an initial claim for employment insurance benefits on October 19, 2009 and it was made effective October 11, 2009 (exhibit 2-1 to 2-13). His last day of work with Conestoga College was July 24, 2009. The reason Mr. B.Y. stopped working was due to a shortage of work (exhibit 3). In response to the electronic application system asking him why he did not file his claim at an earlier date, Mr. B.Y. responded that he was looking for work, or waiting to return to his previous employment (exhibit 2.5).

Mr. B.Y. submitted a formal request to have his claim antedated the last Thursday in April 2009. He explained he is a contract college professor who did not file immediately after his last day of work on April 17, 2009 (exhibit 4) because he was expecting to return to work in September 2009 as he had in previous years. In previous years he collected benefits during the summer months, but this time instead of filing for benefits immediately he decided he would live off his earnings and the small amount of hours he was receiving from the College while waiting to return to full-time work in September. When his contract was not renewed, he decided to file for benefit. Mr. B.Y. was unaware that a delay in filing his claim would have an impact on his benefit rate and therefore requested his claim commence in April 2009 (exhibit 6).

The Commission concluded that Mr. B.Y. did not show good cause throughout the entire period of the delay in filing his claim for employment insurance benefits because he was negligent in ensuring his application was submitted in a timely manner. Mr. B.Y. delayed 27 weeks after his last day of work to file an application for benefit.

In his appeal to the Board of Referees, Mr. B.Y. further explained his reasons for delay (exhibit 8). Specifically, he did not file in April 2009 because he was getting married and going on his honeymoon and would be unable to "keep to El's demand of being available to work at all times". He did not file in August 2009 because the regular school year was to begin the first week of September and it would not make sense to apply as he would have only served his waiting period before the semester commenced. The course he teaches was cancelled because the Government funding was not approved.

The Board of Referees considered all the above, and concluded, in part, as follows (exhibit 10):

Claimants who wish to claim employment insurance benefits for an earlier period must first qualify at the earlier date and then must demonstrate that they had good cause for the entire period of the delay in making their claim. Good cause could include circumstances over which he had no control and which prevented him from making a claim at an earlier date.

In this case, the Board must determine if the reasons stated by the claimant justify good cause. The claimant did what a reasonable person would, when he assumed his course would again be running in September 2010 as it did in the past. It was certainly beyond his control that the Ontario government funding was abruptly cancelled. From news reports at that time there were many people who were unemployed and had been approved for funding for Second Career or other courses and the funding was cancelled. Also, from the emails included in the docket, we feel the claimant had every expectation his work was going to start again (8-7 to 8-8).

We refer to CUB 70432 and CUB 70431-A. In CUB 70432, the Umpire found the Board of Referees made two errors of law in deciding as it did. First, it neglected to rule on all of the claimant's explanations for his delay in filing his benefit claim.

The Board finds in this case, the claimant did what a reasonable person would in 1) Not filing right away in April, 2009 as he knew he would not be "available to work at all times as he would be getting married and on a honeymoon. (Exhibit 8-1). Although the claimant had received benefits in previous summers when off work, he was being honest when not applying right away as he knew he would not be available immediately to work.

Further, again the claimant did what a reasonable person would do in not applying throughout the summer as the claimant felt he had enough money to live on and would be getting a bit of work at the college in the summer as he did (Exhibit 3-1). Then, there was no sense applying as school was to start, as it always did, in September of 2010.

It was totally out of the claimant's control that government funding abruptly ceased. When September came and he was informed that his programmes would not be running but would start in November or possibly January, he spent a period of two weeks trying to make ends meet and then applied for benefits.

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.

The Board finds that the reasons stated by the claimant in his delay were what a reasonable person would do for the reasons stated above.

The Commission has appealed the Board of Referees’ decision to the Umpire submitting that the Board of Referees erred in law and misinterpreted the legal test for good cause and misapplied the case law; and further, that the Board erred in fact and in law when it decided that the claimant acted reasonably throughout the period of delay.

The Board of Referees clearly applied the correct law. Subsection 10(4) of the Employment Insurance Act allows a claimant, in some circumstances, to file an initial claim for benefit at a time later then when it ought to have been made. Subsection 10(4) of the Act contains a policy, in the form of a requirement, which is instrumental in the sound and efficient administration of the Act. On the one hand, this policy helps to assure the proper administration and the efficient processing of various claims and to enable the Commission to review constantly the continuing eligibility of a claimant to whom benefits are being paid. The obligation and duty to promptly file a claim is seen as very demanding and strict and therefore good cause for delay is cautiously applied (Canada (A.G.) v. Beaudin, [2005] F.C.J. No. 588 (F.C.A.) A-341-04; Canada (A.G.) v. Brace, 2008 FCA 118 A-481-07; Canada (A.G.) v. Scott, 2008 FCA 145 A-403-07).

In order to establish "good cause" a claimant must demonstrate that he or she did what a reasonable and prudent person would have done in the same circumstances, either to clarify the situation regarding their employment or to determine their rights and obligations under the Act. Each case must be judged on its own facts and to this extent no clear and easily applicable principle exists. (Canada (A.G.) v. Albrecht, [1985] 1 F.C. 710 (F.C.A.) A-172-85; Canada (A.G.) v. Caron, [1986] F.C.J. No. 85 (F.C.A.) A-395-85; Canada (A.G.) v. Smith, [1993] 3 F.C. D-10 (F.C.A.) A-549-92; Canada (A.G.) v. Ehman, [1996] F.C.J. No. 179 (F.C.A.) A-360-95; Malitsky v. Canada (A.G.), [1997] F.C.J. No. 1136 (F.C.A.) A-205-96; Canada (A.G.) v. Carry, [2005] F.C.J. No. 1850 (F.C.A.) A-242-05).

In order to demonstrate good cause, it is not necessary for a claimant to show that there were circumstances over which he or she had no control and which prevented them from making a claim at an earlier date. The correct test is whether the claimant can demonstrate that he or she did what a reasonable and prudent person would have done in the same circumstances (Hamilton v. Canada (A.G.), [1988] F.C.J. No. 269 (F.C.A.) A-175-87; Canada (A.G.) v. Ehman, [1996] F.C.J. No. 179 (F.C.A.) A-360-95).

What constitutes good cause is always a question of fact (Hamilton v. Canada (A.G.), [1988] F.C.J. No. 269 (F.C.A.) A-175-87).

Although the word appeal is used in section 115 of the Employment Insurance Act to describe the procedure before an Umpire, the proceeding is not an appeal in the usual sense of that word or a trial de novo, but a proceeding in the nature of judicial review. Where a decision of a Board of Referees is challenged because it was based on erroneous findings of fact, the Umpire’s review is limited to considering and determining whether the view of the facts taken by the Board of Referees was reasonably open to it on the record. The test is whether there was any evidence in the record upon which the Board of Referees could have found as they did without error in principle. The Federal Court of Appeal held in Canada (A. G.). v. Merrigan, [2004] F.C.J. No. 1187 (F.C.A.) A-92-03 stated this as follows:

This question is essentially one of fact and the Umpire should not intervene unless the Board made a reviewable error, namely that it "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" (paragraph 115(2)( c) of the Act).
[9] In Re Roberts et al. and Canada Employment and Immigration Commission et al.,[1985] 60 N.R. 349, [1985] F.C.J. No. 413, (1985) 19 D.L.R. (4th) 570, MacGuigan J.A. for the Court stated that although the word "appeal" is used in section 115 of the Act, (formerly section 95 of the Unemployment Insurance Act), to describe the procedure before an Umpire, the substance of the Umpire's jurisdiction is largely identical with that of this Court in section 28 of the Federal Courts Act. The proceeding is therefore not an appeal in the usual sense of that word but a circumscribed review.
[10] MacGuigan J.A. formulated the proper test to apply, under what has now become paragraph 115(2)( c) of the Act, in the following terms:
In our view, the proper test for an umpire to apply ... is whether there was any evidence upon which the board of referees could have found as they did or whether they made any mistake of principle. (see also Attorney General of Canada v. William Cole, [1983] 1 F.C. 425; Canada (Attorney General) v. Feere, [1995] F.C.J. No. 109). Moreover, in Guay v. Canada (Employment and Insurance Commission), (1997) 221 N.R. 329, [1997] F.C.J. No. 1223, this Court reminded that the Board of Referees is "the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts".

The determination in this case entails basically a review and determination of facts. It is well established in the jurisprudence that Boards of Referees are responsible for the determination of facts.

In Guay (A-1036-96), Mr. Justice Marceau of the Federal Court of Appeal wrote:

"In any event, it is the Board of Referees "the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts" that must make this assessment.
(...)
The umpire, in our opinion, could not dismiss this finding by the Board solely on the basis of reasoning that, when all is said and done, simply gives unfettered priority to the views of the employer."

And more recently, in Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01) Justice Létourneau stated that the role of an Umpire is limited to deciding if the Board of Referees' appreciation of facts is reasonably compatible with the evidence before the Board.

An Umpire's jurisdiction is limited by subsection 115(2) of the Employment Insurance Act. Unless the Board of Referees failed to observe a principle of natural justice, erred in law or based its decision on an erroneous finding of fact made in a perverse manner or without regard for the material before the Board, an Umpire is required to dismiss an appeal.

The Commission has not shown that the Board of Referees so erred. To the contrary, the Board's decision is well founded on the evidence before the Board and on the applicable legislative provisions as interpreted in the jurisprudence.

Pursuant to subsection 115(2) of the Act, unless the Board of Referees failed to observe a principle of natural justice, erred in law or based its decision on an erroneous finding of fact made in a perverse manner or without regard for the material before it, an Umpire is required to dismiss an appeal (see A-547-01, A-600-93, A-115-94, A-255-95 and A-97-03).

The Board of Referees did not commit a reviewable error in either fact or in law and there is nothing therefore which would warrant the interference of an Umpire with its decision. The Board's decision is well founded on the evidence before the Board and on the applicable legislative provisions as interpreted in the jurisprudence.