Date: 20130919
Docket:
A-562-12
Citation:
2013 FCA 222
CORAM:
NADON J.A.
PELLETIER J.A.
GAUTHIER J.A.
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BETWEEN:
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DOUGLAS RODGER
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT
GAUTHIER J.A.
[1]
Douglas Rodger seeks judicial review of two decisions of an Umpire. The
first dismissed his appeal from the Board of Referee’s (the Board) decision
(CUB 79268) dismissing his appeal from the Commission’s denial of his request
to antedate his claim for benefits pursuant to subsection 10(4) of the Employment
Insurance Act (S.C. 1996, c. 23) (the Act) because he had failed to
establish good cause within the meaning of the said section. In the second
decision, the Umpire dismissed the applicant’s motion for reconsideration (CUB
79268A), pursuant to section 120 of the Act.
[2]
For the reasons set out below, the application for judicial review
should be dismissed.
THE FACTS
[3]
The applicant was employed by Otto’s Service Centre Ltd. of Ottawa from August 24, 2009 to August 13, 2010. His employer only issued his record of
employment (ROE) on September 3, 2010. The ROE included a notice
stipulating that “[i]f you delay in filing a claim for benefits more than 4
weeks after you stop working, you may lose benefits to which you would
otherwise be entitled.”
[4]
On September 4, 2010, the applicant went to a Service Canada office to
apply for employment insurance benefits (EI). Once there, he realized that
there were a number of errors in his ROE. A Service Canada representative told
him that he would have to get a new ROE. The applicant then spoke to another
agent about the possibility of taking a full-time university course while
receiving EI. Exactly what was said during this discussion is at the heart of
the various proceedings in this file and will be dealt with when referring to
the findings of the Board and the Umpire hereinafter. What is clear is that no
application for EI was filed in 2010.
[5]
In fact, it is only on April 27, 2011, upon completion of his course and
upon receipt of a corrected ROE from his previous employer, dated April 27,
2011, that the applicant submitted an application for EI. On July 25, 2011, he
requested that the Commission antedate his claim to August 26, 2010,
pursuant to subsection 10(4) of the Act. On September 15, 2011, the
Commission informed the applicant that his request had been denied because he
did not have a “good cause” for the delay in making his application. As such,
the applicant did not qualify for EI as he had insufficient insurable hours in
the qualifying period immediately preceding his April 27, 2011 application.
THE BOARD OF REFEREE’S DECISION
[6]
On September 16, 2011, the applicant appealed the Commission’s decision.
In a letter attached to his notice of appeal, he explained why he believed that
he had a good cause for the eight-month delay, and wrote in part,
[4] … the
justification for the good cause was the fact that I attended post-secondary
training courses – full-time with mandatory attendance – without having any
intention of searching for or obtaining work during the rigorous school
schedule. Understanding that authorized training courses offered under the
Employment Insurance’s ‘Red Seal’ program would not include the courses that I
chose to attend, under my own free will and volition, meant there was no point
to apply for employment benefits at that time.
[5] Why would I
apply for benefits when I knew that I did not qualify to receive benefits until
my courses had finished? The fact of the matter is: I was not searching for
work and attending an unauthorized school/training course – two necessary
conditions for clearance; which, upon review would disqualify me from
employment insurance privilege. Thus, I find it to be reasonable to believe
that since I was not entitled to benefits given the choice I had made, there
was no point in engaging the EI system …
[6] I plead that it
was a mistake of law and acknowledge that submitting Records of Employment
(ROE) documents before engaging in the eight month training program was the
proper course of action. However, how can a lay person, having no detailed
knowledge of the statute and regulations, occasion the opportunity to inform
themselves of EI processes until they become enmeshed in an unjust decision
process, as they are then forced to defend their actions? True, I unwittingly
failed to comply with the statutory procedures for claiming benefits; but I did
not intend to penalize myself by not submitting documents prior to the
educational courses, something that could have easily been done. …
[7]
In its decision dated October 11, 2011 the Board summarized the relevant
evidence from the docket. It is worth noting the following extracts (page 2):
The claimant said the delay was because the employer had made two
errors on the ROE and it took time to correct it;
The claimant didn’t have time to put thought into claiming because
he started an educational program and was also dealing with housing issues;
The claimant didn’t anticipate an 8 month delay to
apply to EI until Apr 27, 2011.
[8]
After referring to a number of new documents
filed by the claimant at the hearing, the Board dealt, in some detail with the
applicant’s oral evidence, in particular what was said when he went to the
Service Canada office on September 4, 2010. Among other things, the Board noted
that:
The claimant stated
that the representative he spoke to told him he would have to get a new ROE.
She did not apparently tell him that the Commission could help him with this if
he continued to experience problems. The agent did not instruct him to
establish a claim immediately even though the ROE was incorrect.
The claimant then
requested to speak to an agent. While speaking to the agent, the claimant
discussed the possibility of taking a full time university course. He asked if
he would be eligible for benefits if he did. The agent stated that he was 99%
sure that the claimant would not qualify. He went on to inform the claimant of
the “Red Seal” program of approved educational opportunities.
The claimant stated
that the agent scanned the incorrect ROE during the interview. The claimant
stated that at no time did the agent instruct him to establish a claim. The
claimant stated that he left the interview with the clear impression that he
would not qualify for benefits if he took the university course. He also had
the clear impression that he needed a corrected ROE before he could establish a
claim.
The claimant stated
that he did not establish a claim through the electronic process because he
didn’t think he would get benefits while attending school and he was not made
aware of the significance of not starting the process at that time.
[9]
In its findings of fact, the Board also wrote that:
The claimant acknowledged
at the hearing that he had arrived at the conclusion that he would not qualify
for benefits if he decided to take the university course. He stated that he
then decided to take the course because he wanted to better himself. The
claimant also stated at the hearing that he has learned a great deal more about
Antedate and the need to show just cause for any delay in establishing a claim
for benefits since reading the docket before the hearing.
[10]
After referring to the applicable legal test to determine whether there
was a good cause for the delay, the Board concluded that:
While the Board is
sympathetic to the apparent lack of insight into the process provided by the
representatives as to the need to establish a claim in a timely manner, the
Board finds as a fact that the claimant has not established just cause
for the delay.
UMPIRE’S DECISION - CUB 79268
[11]
In his letter dated December 4, 2011, summarizing the basis of his
appeal from the Board’s decision, the applicant stated that the Board
misapplied the principles set out in the two cases cited in its decision,
including Canada (Attorney General) v. Albrecht, [1985] 1 FC 710 (FCA). This last decision was cited by
the applicant in his September 16, 2011 letter to the Board as setting the
appropriate test to be applied: ignorance of the law does not constitute
good cause unless an individual can show that he did what a reasonable person
in his situation would have done to satisfy himself as to his rights and
obligations under the Act.
[12]
As to what was said at the Service Canada office on September 4, 2010,
the applicant simply states that:
The representative informed that I could not receive unemployment
benefits while in school, and also that I would need a re-issued ROE as the
record I obtained was full of errors.
[13]
The applicant then argued that he had attempted to fulfill his
obligations by relying on the Service Canada representative’s advice and, as any
reasonable person, he could not foresee that he would receive inaccurate
information.
[14]
In his decision dated May 31, 2012, dismissing the appeal, the Umpire
concluded that the Board did not err in law. There was no denial of natural
justice and the conclusion of the Board was open to it on the evidence. In his
view, it was a reasonable decision that complied with the legislation and the
case law.
UMPIRE’S DECISION - CUB 79268A
[15]
In his July 23, 2012 request for a reconsideration of the above
mentioned decision based on new facts (section 120 of the Act), the
applicant stated in part:
… taken more broadly, the facts written to the Board were based on
my limited understanding of the law, the act, and omitted the central issue. I
didn’t actually explain my version of the facts well. As the case has
developed, and for justice to be served, one must recognize some overarching
facts to help gain perspective, add context, and help explain my original
submission further. I discussed these elements briefly with the Umpire during
oral submissions; now it is time to rebuild my case with an improved, balanced
understanding. The central crux of the issue, misinformation from an Employment
Insurance agent, will be explained here. …
However, at no point during that conversation was I informed of the
importance to complete an online application, and, most importantly, that I
would disqualify all future potential benefits at the conclusion of the eight
month educational program. During that information
session it was my understanding, based on a lengthy discussion, that
benefits would not be issued to help support me through the educational
program; but my claim would be accessible a the conclusion of the 8 month
course with a new corrected ROE, if at that time a job search proved futile.
In fact, my decision to return to school was based on the postponement of the
benefits – the decision was based on misinformation. …
I would like to reverse my original statement of claim to the Board, where I indicate I should not be entitled to benefits while in
school. During the past 15 months of research into antedate and EI employee
responsibilities, I would now ask the court to antedate case 11-1078 to August
13th, 2010. …
… In my original submission of facts to the Board of Referees, I was
asking for exactly what I was told by the EI agent: for EI qualification to
begin at the conclusion of the educational courses. These new facts are not
contradictory in my original submission of fact to the Board of Referees. The
fact that I was not able to clearly articulate all the details of the case is
not surprising, especially since it wasn’t entirely clear to me what I was
arguing for. [emphasis added]
[16]
On August 12, 2010, the Umpire dismissed the request for reconsideration
after accepting the Commission’s argument that section 120 only provides “an
opportunity to submit material facts that were not present at the time of the
hearing.” Here, the applicant was seeking an opportunity to reargue his case.
The Umpire concluded that there was no basis for reconsideration under section 120.
APPLICATION FOR JUDICIAL REVIEW
[17]
Having obtained permission to seek judicial review of these two distinct
decisions in the same application, the applicant filed an affidavit in support
of his application, dated February 5, 2013. In light of the preliminary
objection raised by the respondent, it is worth reproducing the contested
paragraphs:
5. The EI agent told
me it would be no good to apply for benefits because the program I wanted to
take would not be covered by EI-funded programs of study.
6. The EI agent
informed me that my claim for benefits would be accessible at the conclusion of
the educational program.
10. In accordance
with the EI agent’s explanation of proper administrative procedure. I decided
to attend the training course of my choosing and postpone my admissibility of
EI benefits.
19. I met with the
Board of referees and gave all the information at my hearing on October 11,
2011. My oral testimony to the Board explained all conceivable elements of this
case to ensure they found the error. I explained how an EI agent told me not to
apply for benefits because the educational program I wanted to attend would not
be covered, and that I could postpone my eligibility for benefits: I would only
qualify on the first day after the courses had ended.
20. In a decision on
October 11, 2011, the Board of referees refused to antedate my claim citing no
just cause for delay (exhibit A). The tribunal record omitted the fact that I
was told by an EI agent that I would only qualify after the educational program
and that I could postpone my eligibility for benefits.
ISSUES
[18]
As a preliminary issue, the respondent submits that the evidence in
paragraphs 5, 6, 10, 19 and 20 of the applicant’s affidavit “is not admissible
and should not be given any weight to the extent that the evidence is
inconsistent with the evidence that was before the Board and the Umpire.”
[19]
In his memorandum, the applicant listed five issues, the first two being
whether the Board erred in its findings of fact and in law in its
interpretation of subsection 10(4) of the Act.
[20]
In the context of an application for judicial review of the Umpire’s
decision, it is not this Court’s role to deal with the appeal from the Board’s
decision de novo.
[21]
Thus, the real issues before us are:
i) whether
the Umpire made a reviewable error in upholding the Board’s decision that the
applicant had not shown good cause for the delay pursuant to subsection 10(4)
of the Act; and
ii) whether
the Umpire erred in dismissing the applicant’s request for reconsideration on
the basis that there were no new material facts.
ANALYSIS
[22]
Dealing first with the preliminary issue, it is evident that the
applicant who represented himself throughout the process gained a better
appreciation of the significance of certain elements relevant to his allegation
that he was misinformed between the time he first filed his request to antedate
his claim with the Commission and the time he filed his application for
judicial review. However, the scope of the alleged misinformation by the EI
agent also appears to have shifted, from the agent not informing him of the
significance of not filing his claim in a timely manner (before the Board), to statements
before this Court that the EI agent in fact advised him that it was no good to apply
in September 2010, and that his claim for benefits would still be accessible in
any event after he finished school.
[23]
Clearly, if the contested paragraphs of the applicant’s affidavit are
meant to transform the agent’s omission as to how the applicant could preserve
his rights into an affirmation that the applicant did not need to file a claim
in 2010 to preserve his right to access EI after his studies, I agree that
these paragraphs cannot be considered.
[24]
As explained by my colleague, Stratas J. in Association
of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency
(Access Copyright), 2012 FCA 22 at paragraphs 19:
… as a general rule, the evidentiary record before this Court on
judicial review is restricted to the evidentiary record that was before the
Board. In other words, evidence that was not before the Board and that
goes to the merits of the matter before the Board is not admissible in an
application for judicial review in this Court. As was said by this Court in
Gitxsan Treaty Society v. Hospital Employees’ Union, 1999 CanLII 7628
(FCA), [2000] 1 F.C. 135 at pages 144-45 (C.A.), “[t]he essential purpose of
judicial review is the review of decisions, not the determination, by trial de
novo, of questions that were not adequately canvassed in evidence at the
tribunal or trial court.” [emphasis added]
[25]
Discussing the permissible scope of affidavits submitted on judicial
review, Stratas J. also noted that “[c]are must be taken to ensure that
the affidavit does not go further and provide evidence relevant to the merits
of the matter decided by the administrative decision-maker, invading the role
of the latter as fact-finder and merits-decider.”
[26]
Even if a litigant does not totally understand the process in which he
is engaged, or fails to appreciate the significance of particular evidence,
this Court is limited to reviewing the decisions before it on the basis of the
evidentiary record before the decision-maker (Ray v. Canada, 2003 FCA 317, [2003] 4 C.T.C. 206 at paragraph 5). This is not
one of the rare situations where an exception can be made because, for example,
the Court has to determine whether there was a breach of procedural fairness. The
Umpire decided the appeal on the basis of the available evidentiary record
which consisted of all the documents before the Board and the oral evidence
referred to in the Board’s decision as there was no transcript of the hearing.
We must use the same record to review the Umpire’s decision.
[27]
As of the time he filed his first appeal before the Umpire,
the applicant was attempting to retry his case on the merits. Unfortunately,
the role of the Umpire was not to determine de novo his appeal from the
decision of the Commission, nor as I mentioned earlier is it the role of this
Court on judicial review to do so or to determine de novo the issues
that were before the Umpire.
[28]
This leads me to discuss the standard of review applicable
to the issues before us.
[29]
Whether a particular applicant had good cause to delay the filing of his
claim within the meaning of subsection 10(4) of the Act is a question of
mixed fact and law (Canada (Attorney General) v. Burke, 2012 FCA 139 at
paragraph 9; Canada (Attorney General) v. Bendetti, 2009 FCA 283 at
paragraph 9). The applicable standard of review in respect of such questions is
reasonableness.
[30]
The applicant argues that the Umpire made an extricable error of law
which should be reviewed on the correctness standard. More particularly, while
conceding that the Board identified the correct legal test, he alleges that the
Umpire failed to appreciate that the Board did not apply that test to determine
whether he had established good cause and that the Umpire failed to follow the binding
precedents establishing that delay due to misinformation by the Commission
constitutes good cause. I cannot agree that these are extricable questions of
law.
[31]
The question of whether the Board misapplied the test is a question of
mixed fact and law.
[32]
As for the so-called precedents, which are in fact other Umpire decisions,
the applicant does not appreciate that these do not legally bind the Umpire.
Applying the proper test to establish good cause to the particular
circumstances of a case is a fact intensive exercise in respect of which previous
decisions cannot be legally binding.
[33]
With this in mind, I will proceed to examine the merits of this
application. It is evident that the Board understood that the
applicant failed to file a claim in September 2010, especially one submitted
through the electronic process, because he did not think that he would get
benefits while attending school and because he was not made aware
of the significance of not starting the process at that time.
[34]
It is worth mentioning here that although the applicant in
paragraph 23 of his affidavit states that he only learned after filing his
appeal with the Umpire about the significance of filing an electronic claim
prior to starting his studies, it is clear that this issue was indeed canvassed
before the Board. It is also referred to in paragraph 6 of the applicant’s
letter to the Board, dated September 16, 2011.
[35]
The Board was well aware that the Service Canada agent had failed to
inform the applicant that he should have filed a claim in September 2010 if he
intended to later seek EI after his studies. It expressly refers to this as “an
apparent lack of insight into the process provided by the representative as to
the need to establish a claim in a timely manner.”
[36]
But it is also clear that the Board viewed this omission as insufficient
to justify the delay. It certainly did not find as a fact that the agent had
provided the misleading advice that the applicant now seems to be putting forth
– that is that there was no need to file anything. It did not characterize this
“lack of insight” as a situation where the agent “misadvised” the applicant.
[37]
Even if one were to consider the various iterations of the facts since
then, the applicant’s declared purpose for discussing with the second agent on
September 4, 2010 was to determine whether he could receive EI while studying.
The advice he received in that respect was clearly accurate as the type of
studies that he pursued did not entitle him to receive benefits while studying.
[38]
We do not have the exact context in which the alleged further discussion
as to the possibility of postponing the payment of EI occurred. There is no
evidence that the applicant asked the agent whether or not he should file a
claim immediately or only after his studies in order to access EI at a later
date. In fact, at the hearing before us, the applicant acknowledged that he did
not ask any specific question in such respect. His inquiry was more general. As
submitted by the respondent, it would be difficult for any agent to address all
possible hypotheses. I agree that here there was no basis to find that the
agent had such a duty.
[39]
In the circumstances, I agree with the Umpire that it was open to the
Board to conclude as it did that the failure of the agent to give explicit
directions to the applicant (the so-called apparent lack of insight), coupled
with all the other information put forth to justify the delay does not
constitute good cause. This is especially so considering the express notice on
the ROE that a claim should be filed within four weeks.
[40]
The Umpire’s conclusion is perfectly in line with the reasonableness
standard that he was required to apply, and which recognizes that there may be
a range of possible and acceptable outcomes which are defensible in respect of
the facts and the law (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 47).
[41]
In the eyes of the applicant, this result may appear unjustifiably harsh
as he considers that he did all that he could do to inform himself. It is true
that the duty imposed on claimants to promptly file their claim is very
demanding and strict. However, there is a good reason for this. As explained in
Canada (Attorney General) v.
Beaudin, 2005 FCA 123, this requirement is essential
to ensure the integrity of the system and to enable the Commission to make all
the appropriate verifications for eligibility. This is particularly important
when, as here, a claimant has voluntarily quit his job. As such, the exception
provided at subsection 10(4) of the Act must be cautiously applied.
[42]
I turn now to the second decision of the Umpire dealing
with the application pursuant to section 120 of the Act. The other question of whether there are new material facts that
justify the application of section 120 of the Act is again a factual
inquiry, one that must also be reviewed on the reasonableness standard.
[43]
As noted in Canada (Attorney General) v. Chan, [1994] 178 N.R. 372 (FCA) at paragraph 10 (Chan),
reconsideration under this section of the Act should remain a “rare
commodity”, and an Umpire should be careful not to let the process be abused
“by careless or ill-advised claimants”. As unequivocally enunciated in Chan,
a different or more detailed version of the facts already known to the claimant
or a sudden realization of the consequences of certain facts are not new facts.
[44]
As it is apparent from the excerpts reproduced
at paragraph 15 above, there were no new material facts that justified the
applicant’s request for reconsideration. All the information that the applicant
put before the Umpire in his request for reconsideration were facts which presumably
were already known to him and which became relevant to his revised argument.
This is simply not a case that falls under section 120 of the Act. The
Umpire had no choice but to dismiss the applicant’s request.
CONCLUSION
[45]
In my view, the Umpire made no reviewable errors in the two decisions
under review. I would dismiss the appeal with costs in the amount of $250.00.
“Johanne
Gauthier”
“I agree
M. Nadon J.A.”
“I agree
J.D. Denis Pelletier J.A.”
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