IN THE MATTER of the EMPLOYMENT INSURANCE ACT
- and -
IN THE MATTER of a claim by
U.I.
- and -
IN THE MATTER of an appeal to an Umpire by the Commission
from a decision by the Board of Referees given on
August 17, 2011, at Richmond Hill, Ontario
M. E. LAGACÉ, Umpire
The Commission is appealing the Board of Referees’ decision to allow the claimant’s appeal from the denial of his claim due to late filing, under the finding that the claimant acted as a reasonable person and proved good cause for the one year delay in filing his claim pursuant to subsection 10(5) of the Employment Insurance Act (the Act).
The claimant received a benefit statement on April 9, 2010 and was provided his access code and information as to when he needed to complete his next report, with instructions regarding the completion of his claim.
The Commission denied his claim because of late filing, since he did not attempt to complete any reports, nor did he contact the Commission until April 4, 2011, when he requested an antedate of his claim to April 5, 2010.
In his appeal to the Board the claimant explained the exceptional situation he had to face during the period in issue: he lived in a remote area and was not familiar with the use of a computer, and therefore he was expecting to receive from the Commission the appropriate forms to complete; meanwhile his home as well as his car were destroyed by a tornado, and he had no insurance to cover his losses; the same thing happened to his mother’s and sister’s houses, both situated in the same ravaged area; he had to cover the cost of replacing his roof and, being without any resources, he had to work on the repairs of his house as well as the house of members of his family; while doing so, he fell off the roof and injured himself; the City took legal action against him because he did not have the necessary permits to execute these repairs; meanwhile the tools used for the repair of his roof were stolen; and his house became flooded due to rain leaking in through the destroyed roof.
He also suffered during that period the loss of a family member; and had to take care of his ailing, aged parents who were obliged to move four times during this period. As a result of all these problems, he was exposed to a great deal of stress that caused him to neglect and follow up his claim with the Commission and to forget the forms he was expecting to receive from the Commission. In addition, during that period the mail ceased to be delivered properly in the area where he lived; so that either the postal carrier had nowhere to leave the mail since there was no mailbox, or the mail would be left insecure on what used to be the claimant’s front porch and where it could be stolen.
In view of these circumstances considered as a whole, the Board allowed the claimant’s appeal against his disentitlement, on the finding that he had acted as a reasonable person in trying, before following up with his EI claim, to provide shelter and deal with the health issues of the family, while dealing with the myriad of difficulties resulting from the tornado.
In its appeal to the Umpire the Commission submits that the Board erred in fact and in law when it concluded as it did, and that its decision is unreasonable.
The undersigned recognizes that it is now settled law that a claimant bears the responsibility to enquire about his/her rights to benefits. And that subsection 10(5) of the Act stipulates that a claimant who returns his/her reports outside the time prescribed must show that there was good cause for the delay throughout the period; that subsection 50(1) of the Act disentitles claimants who fail to fulfil or comply with a condition or requirement provided for in that section; and that subsection 50(4) of the Act further states that weekly claims for benefits shall be made within the prescribed time pursuant to subsection 26(1) of the Regulations.
Therefore when a claimant does not submit a report within the time prescribed, he bears the burden to show that he had good cause for the delay in returning his report (Chow, A-1000-92; Harbour, A-541-85). Did the claimant meet this burden here?
No claimant is a superman; there is therefore a limit to what can be expected from an individual who has to go through a combination of exceptional and difficult circumstances such as those the claimant had to face during the period of delay in issue. A claimant is not asked to do the impossible to protect his rights and to assume his responsibilities under the law, but only to show that he acted as a reasonable person would have done under the same circumstances (Beaudin, A-341-04; and Rouleau, A-4-95).
The Board, having heard the claimant on his appeal, concluded, as a fact, that the claimant acted as a reasonable person would have done while dealing with the exceptional combination of difficult issues he was facing, and which explain the delay to follow-up his claim with the Commission.
The Umpire is not called by the Act at this stage of the procedure to reweigh the evidence and substitute his opinion to that of the Board but rather only to verify the reasonableness of its decision. Having analysed the evidence and the impugned decision the undersigned concludes that the Board’s decision is well founded in fact and in law, and sees no valid reason to intervene.
FOR THESE REASONS, the appeal of the Commission is dismissed.
M. E. Lagacé
UMPIRE
Montreal, Quebec
January 27, 2012