CUB 69261

R. C. STEVENSON, UMPIRE:

The claimant appeals from the decision of a Board of Referees dismissing her appeal from a Commission ruling denying an antedate of her claim for unemployment benefits.

The claimant's employment ended on May 12, 2006 but her salary continued until June 15 according to the record of employment issued by the employer. The claimant says it continued for two months. It was only when her salary stopped that she had an interruption of earnings. She applied for benefits on October 4, 2006. In her on-line application she said she did not apply immediately after she stopped working because she was waiting for her record of employment.

On November 3 the claimant received a communication from the Commission with the necessary information for her to make her bi-weekly reports to the Commission. It told her to make her first report on or after October 14. The letter had been delivered to the wrong address. When she received it the claimant immediately spoke to a Commission agent who told her she qualified for only 24 weeks of benefits rather than the 32 weeks she was expecting. He said she should have applied around the end of June. On November 6 she filled out an antedate application supported by a letter in which she said, in part:

I explained to the agent that I did go to the EI location on Upper James Hamilton the first week of July with my paper work from the employer that notified the employees of the dept. closure etc. The woman I spoke to advised me that I needed my Record of Employment in order to complete my EI Claim. I did not have that yet. Shortly after this a job opportunity had come up I was to start late Aug - early Sept. (The date had not been confirmed.) The present employee was expecting to go to school come Sept. This job opportunity fell through when the present employee had decided not to go to school at this time and decided to stay on with the company. This is why I had filed in Sept. when I found out the opportunity was lost. An agent advised me to fill out an antedate request form explaining this.

The copy of the record of employment in the file is dated July 4, 2006. It is a photocopy of Part 2 - the copy the employer sends to the HRSD office in Bathurst, New Brunswick. It does not indicate when it was received by HRSD. At the hearing of the present appeal the claimant's representative said the claimant had received her copy in mid-August. The Board of Referees said:

The claimant stated that although it was issued in July, she did not open her mail until some time in August as she was visiting with her ill father.

In its written representations to the Board of Referees the Commission said:

While claimants are advised they need a Record of Employment to complete their claims, they are also told to file their claim within 4 weeks of their interruption of earnings, whether or not the Record has been received. This advice is consistent with published information on the Commission's web site and pamphlets; it is even printed on the reverse side of most Records of Employment. A reasonable person would have been expected to file a claim upon receipt of the Record of Employment, or at the very least, find out how long he/she could wait before losing entitlement to benefit. The claimant knew she wouldn't be starting work until September at the earliest. She was aware that she could file a claim in July or August but simply chose not to.

I do not accept the statement in the first quoted sentence. Umpires hear from too many claimants that they have been told in Commission offices that they cannot apply until they have their record of employment. The frequency at which we hear that leads me to conclude that the claimants are telling it like it is.

Under the Employment Insurance Regulations it is the employer, not the claimant, that is obliged to send the record of employment to the Commission. Granted, it expedites the processing of claims if the claimant can provide a copy at a local office rather than count on that office to coordinate the application with a document the employer has sent to the office in Bathurst.

The claimant's father was seriously ill during the summer of 2006 and she spent time visiting him in Guelph. He died on September 8 and the claimant was responsible for arranging his funeral and the interment of the ashes of both of her parents. The claimant said, in her letter of appeal to the Board of Referees, " ... there were many details to attend to both before and after the service."

The claimant qualified for benefits when her interruption of earnings occurred. It is not clear whether that was on June 15 or in mid-July. Subsection 10(4) of the Employment Insurance Act provides:

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.

In its summary of evidence at the Board hearing the Board of Referees said:

The claimant stated that she had reasonable assurance of other employment that was to start in September 2006. It was her rational [sic] that since she was still receiving money from the employer, and that her new job would start in September that she wouldn't apply for benefits nor would she qualify for them. The claimant stated that she felt that she did what a reasonable person would do. She felt that a reasonable person would look for employment first and then if nothing was found, apply for benefits. After speaking with former co-workers she decided to claim for benefits in October of 2006.

The Board of Referees did not make any findings of fact other than its conclusion that "the claimant did not show good cause for delay throughout the entire period pursuant to section 10(4) of the Act."

There were three factors in the claimant's delay: (1) the erroneous information the Commission gave her, (2) her anticipation of other employment and (3) her father's illness and death. Did those factors give her good cause for delay throughout the period between the date to which her claim might have been antedated and October 4, 2006?

The test for determining good cause for delay is whether the claimant acted as a reasonable person.

Relying on erroneous information from the Commission can be good cause for delay as can anticipation of employment for a brief period, for example see CUB 43320. Personal or family circumstances related to the terminal illness and death of a family member may also be good cause.

It has been held in some other cases that the cumulative effect of the claimant's reasons may establish good cause for delay. In CUB 56558 Umpire Goulard said:

... the benefit of the doubt should be given to claimants in such situations rather than use the legislation to find a way to prevent the claimant from receiving benefits.

He referred to CUB 9958 where Justice Muldoon had said:

The policy of the Act is to confer benefits for which claimants have paid their premiums, not to find arcane excuses for withholding benefits. Again, from this perspective, Parliament's intention in enacting subsection 20(4) appears to be quite clear: the adjudicator has only to determine whether this claimant, in these particular circumstances, has shown "good cause for his delay" in applying for benefits. The adjudicator is not called upon, every time he or she descries a tardy claimant's ignorance of this complex law, to bludgeon the tardy application into oblivion.

I find, as did the umpire in CUB 56558, that the Board of Referees failed to consider the cumulative effect of the reasons given by the claimant for her delay in applying for benefits and that the cumulative effect of those reasons did establish good cause for her delay. The appeal is allowed.

Ronald C. Stevenson

UMPIRE

FREDERICTON, NEW BRUNSWICK
October 11, 2007