CUB 53008

IN THE MATTER of an appeal by the claimant
from a decision of a Board of Referees given at
St. John's, NF, on the 7th day of February, 2001.

DECISION

The issue before the Board was whether or not a recalculation of a weekly rate of benefit can be made after three years of the start of the claim. The Board found the following statements of facts. The claim for benefits was established May 25, 1997, with a record from HRDC showing employment from September 4, 1991 to March 31, 1997. The claimant came under the Federal Government Work Force Reduction Program and received $29,136.85 in separation payments. These monies were allocated up to April 12, 1998. No monies were paid and the benefit period was extended to 47 weeks (Exhibit 4). The claimant's weekly rate was calculated to be $342.

On February 17, 1998, the claimant filed a renewal application to reopen that claim which she applied on May 1997. The claimant was renewed effective February 15, 1998. On October 3, 2000 the claimant sent a request for recalculation of her benefit rate because of the Federal Government's pay ruling (Exhibit 6). She enclosed a pay stub for a pay equity cheque issued to her on April 14, 2000 and another for a payment issued September 2000 (Exhibit 6.2 - 6.5) enclosed a pay stub for a pay equity cheque issued to her on April 14, 2000 and another for a payment issued September 2000 (Exhibit 6.2 - 6.5).

The Commission invoked s. 52(1) of the E.I. Act which states that a request for recalculation must be made within 36 months when the rate was calculated. The claimant was notified on November 30, 2000. The claimant pointed out in Exhibit 11 that the Federal Court of Appeal - A-637-86 states that from the moment that the benefits are paid, the Commission has three years to reconsider a claim. The claimant states that benefits were not paid to her until April 1998, and that her three year period should start at that time. The Commission determined that the three year period started in May 1997 because benefits were considered to have been paid or payable when the claim was established and the benefit rate was determined when she filed her claim.

The Board of Referees found that in April 2000 the claimant could have requested a reconsideration of her benefit within the three year period. The claimant failed to act as a prudent individual would by not seeking information from HRDC regarding the effect of these equity payments on her E.I. claim. They found ignorance of the law was not a just cause for appealing late to the Commission. They therefore dismissed the appeal.

Section 52(l) states: "Notwithstanding s. 120, but subject to subsection (5) the Commission may reconsider a claim for benefits within 36 months after the benefits have been paid or would have been payable".

Counsel for the Commission relies on a decision ofthe Federal Court of Appeal in Roland Fortin, T-472-88. The Court found that:

"Accordingly, the reconsideration of a situation which does not alter an earlier decision is appealable under s. 57(2). Put otherwise, only decisions that alter an earlier decision are appealable. Other decisions which, for example, concern the deduction of an amount owed or a refusal to remit may not be appealed to a board of referees. In short, as Marceau, J. said in his refusal to allow the first application for a writ of mandamus, "the right of appeal referred to in subs 2 of the said section applies only to a genuine review decision, in other words one that alters an original decision...", and in my opinion the judgment of the Court of Appeal in Gareau does not have the effect of overturning this interpretation of the Act."

In this case, this is not a situation where an earlier decision was altered. An appeal in this case is not an appeal of the decision but an appeal of the interpretation of the section. In this particular case, the Commission and the Board found that the effective date for reconsideration was the date when this claimant became eligible for employment insurance benefits. Her employment insurance benefits were delayed because her employer provided her with separation payments which in effect extended her employment some 47 weeks. She was not, therefore, entitled to payments until April 11, 1998. That is the date when, in my view, the benefits were paid and were payable. They were not payable before that date because of her separation pay.

Further, in this particular case, this claimant received her pay equity in April and September 2000. That payment was for her work during the five year period that she was employed. It would, in my view, be inequitable for her not to be eligible for benefits based on the income that she was justly entitled to just because it was delayed in coming to her.

For these reasons, I am satisfied that the ruling from the Board of Referees should be set aside and the claimant's appeal allowed.