CUB 69878

THE HONOURABLE W.J. HADDAD, Q.C., UMPIRE:

The claimant filed this appeal and has requested that the Umpire deliver a decision based upon the evidence in the file.

The Commission refused the claimant's application to antedate her claim for employment insurance benefits.

The claimant was, at the times material to this appeal, a part-time or substitute school teacher employed by the Board of Education of the Regina School Division #4. She was given a temporary contract and upon its expiration on June 28, 2006, she applied for employment insurance benefits and an initial claim was approved. At the end of August she received a temporary .5 teaching assignment ending December 22, 2006 to cover for a teacher who had been granted sick leave.

Upon termination of that assignment the claimant contacted the Service Canada office and she was informed that she would not qualify for benefits. The claimant sought the advice of her mother, a teacher for 30 years as to whether she qualified for benefits and her mother explained that she had insufficient insurable hours of employment and in any event there would be a two week waiting period. Claimant's eligibility for benefits was also discussed with the president of her union and he informed the claimant that casual teachers were eligible for benefits only during the summer when issued a record of employment. Moreover, the school principal with over 30 years of experience expressed the same opinion. The claimant placed her reliance on the advice she received from those sources. Unfortunately, she was misinformed.

In March, 2007, the claimant was informed by a substitute teacher that she collected benefits covering the Christmas holidays and upon further inquiry of Service Canada she learned that she could renew her initial claim. She applied on March 12, 2007 to have her renewal claim antedated to December 2, 2006 and her application was rejected by the Commission and again on appeal by the Board of Referees for the reason that she failed to show good cause for the delay. The Board of Referees accepted the reasoning that the claimant "did not fulfill her responsibilities in inquiring with the Commission about the procedures surrounding her claim" - "She should have followed up immediately with the Commission after the Christmas break to re-apply for benefits. For whatever reason she did not do so immediately."

To succeed in her application to antedate it was incumbent upon the claimant to explain the delay for filing her renewal application by demonstrating that she did what a reasonable person in her situation would have done to satisfy themselves as to their rights and obligations under the Act. That is the test determined by the Federal Court of Appeal in Canada (A.G.) v. Albrecht (1985) 1 F.C. 710. The Board of Referees recited the Albrecht test and in its review of the evidence it referred to the advice obtained by the claimant from the several persons she approached and concluded that the claimant "did not do what a reasonable person would do considering the circumstances".

The Board overlooked the fact that the claimant did make efforts to clarify her status. In January she made a phone call to Service Canada to determine the insurable hours of employment she required to qualify for benefits only to learn that the numbers she had accumulated were too few. She also tried to access information, without success, through the internet. She was not aware, or made aware, that she could renew her initial claim.

More importantly the Board failed to take into account that the persons from whom the claimant sought advice, and in particular the union representative and the school principal are persons who are likely, through experience, to be knowledgeable regarding the rules for acquiring benefits and from whom she could anticipate accurate advice. The Board of Referees ought to have recognized that the claimant made efforts to determine her status and that she did what a reasonable and prudent person would have done in similar circumstances.

In CUB 16773 (Ryan) the claimant delayed her application for benefits because of inaccurate information she received from her union representative. She applied, in due course of time, and the Board of Referees rejected her request to antedate her claim. Her appeal to the Umpire was successful and her antedate application was allowed. The Umpire held that the claimant satisfied the test in Albrecht and explained the established jurisprudence as follows:

"There is ample jurisprudence establishing that when a claimant relies on the advice of someone from whom he or she is entitled to anticipate that accurate advice will be received that that individual has good cause for delay if they rely on that advice and delay occurs."

In CUB 28163 (Gagnè) the Board of Referees determined that a 19 year old claimant who relied upon his father's opinion that he would not qualify for benefits, rejected the claimant's request to antedate. The Umpire, on appeal, determined that the claimant gave the reasons for delay of a reasonable person and allowed the antedate application.

The Board of Referees in refusing the antedate request did not apply the established jurisprudence to determine the reasonable and prudent person. The Board erred in law.

The claimant is entitled to have her claim antedated. The appeal is allowed.

"W.J. Haddad"

W.J. Haddad, Q.C. - Umpire

Edmonton, Alberta,
December 17, 2007.