CUB 77178

IN THE MATTER of the EMPLOYMENT INSURANCE ACT

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IN THE MATTER of a claim by
M.Q.

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IN THE MATTER of an appeal to an Umpire by the Commission
from a decision by the Board of Referees given on
September 15, 2010 at Sudbury, Ontario

DECISION

The Commission appeals from a decision of the Board of Referees allowing the claimant’s appeal from a decision of the Commission denying the claimant’s request for an antedate.

The claimant was employed by Canadian Pacific Railway from May 17, 1980 to July 26, 2009. His ROE showed 2,149 insurable hours in his last 27 pay periods. He applied for benefits on June 29, 2010. After being advised that he only had 169 insurable hours in his qualifying period of June 2009 to June 2010 the claimant requested an antedate to July 2009. The Commission denied the request but determined that the antedate could be granted effective February 2, 2010 since the claimant had shown good cause to delay his claim between July 26, 2009 and February 2, 2010.

The issue on this appeal is whether the claimant has shown good cause to delay his application for benefits between February 2 and July 27, 2010.

The evidence shows that the claimant occupied a ‘’light duty’’ function when he left for his holidays in the summer 2010. Upon his return to work he was advised that his position was abolished and that he should re-open his claim with the Workplace Safety and Insurance Board (WSIB). The claimant applied accordingly to that Board and on February 2, 2010 he was advised by telephone that his claim could not be re-opened. On April 20, 2010 he received a letter from that Board confirming that his claim could not be re-opened.

The claimant’s employer did not provide the claimant with an ROE indicating a lay-off in July 2009 since the claimant was referred back to WSIB. In fact the employer finally issued an ROE in July 2010 after a request made by the Commission. The ROE indicates that the claimant left his employment by reason of sickness or injury.

Between February 2 and June 29, 2010 the claimant did continue his attempts to resolve his situation with WSIB and with his union. He unsuccessfully attempted to obtain an ROE from his employer. He finally received information that a former employee in the same situation had successfully applied for EI benefits and he applied on June 29 although he had not been successful in obtaining his ROE at that time.

The Board found that the claimant had shown good cause for the delay between February and June 2010. The Board concluded as follows:

‘’The claimant acted as a reasonable person would in his circumstances at the time he was laid-off he was advised by his employer to re apply for his WSIB and was not issued his ROE. He was never advised until February 2010 that his WSIB claim was denied. The claimant only received a written notice from WISB in April 2010 in regards to his claim not being accepted. He contacted his union requesting assistance in regards to WSIB claim and never heard back from his union until may 2010.’’

It should be noted in this case that the claimant had originally received compensation from the WSIB and he had returned to work with his employer in a ‘’light duty’’ position. When his ‘’light duty’’ position was abolished his employer referred him back to the WSIB no doubt in the belief that compensation would be resumed. This, no doubt, left the claimant in a state of confusion as to his status. In fact when the employer issued the ROE in July 2010, the employer stated that the employee had left his job for reason of sickness or injury. As indicated above this was not the case. His ‘’light duty’’ employment has been abolished.

Considering the facts in this case, I find that the Board’s conclusion is reasonable. It was opened to the Board to conclude that the claimant had shown good cause for the delay throughout the period July 2009 and July 2010.