Date: 20120504
Docket: A-300-11
Citation: 2012 FCA 139
CORAM: EVANS
J.A.
DAWSON J.A.
MACTAVISH
J.A. (ex officio)
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
BILL BURKE
Respondent
REASONS FOR JUDGMENT
DAWSON J.A.
[1]
This
is an application for judicial review of a decision of an Umpire (CUB 77245).
The Umpire dismissed an appeal of a unanimous decision of the Board of Referees
brought by the Canada Employment Insurance Commission (Commission). The issue
raised on this application is whether the decision of the Umpire dismissing the
appeal was reasonable.
The Facts
[2]
The
respondent, Mr. Burke, was employed by a construction firm as a supervisor. His
last day worked was September 26, 2009. Thereafter, he did not apply for
employment insurance benefits until January 25, 2010. At that time he
requested that his claim be antedated to September 27, 2009.
[3]
Mr.
Burke advised the Commission that he did not claim benefits earlier because he had
good reason to be confident that he would be offered employment on a new
project either as a manager or a machine operator. If everything went as
planned, he expected to commence work on the new project at the end of November
or, as he later stated, the beginning of December, 2009. A contract was in
place for this project and the required supplies and equipment were on site.
However, independent of the contract, negotiations were required with a First
Nation. It became apparent to Mr. Burke by January 20, 2010 that the new
project would not proceed due to the lateness of the season.
[4]
Mr.
Burke’s antedate request was denied by the Commission because it found he did not
show that from September 27, 2009 to January 24, 2010 he had “good cause” to
justify his late application for benefits within the meaning of subsection
10(4) of the Employment Insurance Act, S.C. 1996, c. 23.
The Decision of the Board of Referees
[5]
The
Board of Referees directed itself to the correct test to be applied when
determining whether or not good cause exists to justify a delay in applying for
benefits. A claimant is required to show that he or she acted as a reasonable
and prudent person would have done in similar circumstances throughout the
entire period of the delay. The Board then found as fact that the claimant did
what any reasonable person would do. The Board supported this conclusion with
reference to the facts and conclusions reached in CUB 58234.
The Decision of the Umpire
[6]
The
Umpire began his reasons by correctly setting out the relevant chronology and
Mr. Burke’s explanation for the delay. After explaining the position of
the appellant Commission, the Umpire reviewed the decision of the Board of
Referees. He noted the Board’s reliance on CUB 58234, where a 74-day delay
in applying for benefits was found to be reasonable in the circumstances.
Unfortunately, after having correctly set out the relevant chronology in the
case before him, the Umpire committed an arithmetic error and calculated the
period of delay in the case before him to be 90 days. In fact, the delay was
121 days.
[7]
The
Umpire went on to correctly state the duty to promptly file a claim for
benefits, and noted that the “good cause for delay” exception must be
cautiously applied. The Umpire then correctly set out the test for establishing
good cause.
[8]
The
Umpire next reviewed the prior decision in CUB 75829 and found that the
comments made by the Umpire in that case were applicable to Mr. Burke’s
situation. Ultimately, the Umpire concluded that there were insufficient
differences between the facts of Mr. Burke’s case and the facts in CUB 58234 to
warrant any interference with the finding of the Board of Referees.
Standard of Review
[9]
The
Commission did not argue before the Umpire that the Board of Referees failed to
observe any principle of natural justice or otherwise acted beyond its
jurisdiction. While the Commission argued that the Board of Referees committed
an error in law by not considering all of the evidence, the determination of
whether Mr. Burke had good cause for delay is a mixed question of fact and law.
Therefore, the Umpire was only entitled to interfere with the decision of the
Board of Referees if it was unreasonable. To assess the reasonableness of that
decision the Umpire was required to apply a legal test to the facts. It follows
from the nature of the question before him, that the Umpire’s decision is to be
reviewed by this Court on the standard of reasonableness.
Application of the Standard of Review
[10]
In
his memorandum of fact and law, the Attorney General argued on behalf of the
Commission that the Umpire’s decision is unreasonable in two respects. First,
the Umpire erred when calculating the period of delay. Second, the Umpire
failed to intervene to correct the Board’s unreasonable determination that the
respondent had established good cause for the entire period of delay.
[11]
In
my view, the first asserted ground of error must fail for the following
reasons. First, as noted above, the Umpire at an early point in his reasons
correctly set out the last day worked and the date Mr. Burke applied for
benefits. Thus, the Umpire knew the period during which Mr. Burke delayed
claiming benefits. Viewing the record as a whole I am not persuaded that the
Umpire’s misstatement of the length of the delay was material to his decision. Second,
while the length of the delay is a relevant factor, the more important
consideration is the reason for the delay (Canada (Attorney General) v.
McBride,
2009 FCA 1, [2009] F.C.J. No. 8 at paragraph 6). The Umpire understood the
respondent’s explanation and there is nothing in the record to suggest that Mr. Burke’s
reason for delaying in filing his application for benefits changed during the
relevant period.
[12]
With
respect to the second asserted ground of error, a court is required to consider
both the reasons given and the outcome when determining the reasonableness of a
decision. A reviewing court is to show “respect for the decision-making process
of adjudicative bodies with regard to both the facts and the law” (Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paragraphs 47 and 48).
[13]
The
Board of Referees correctly set out the legal test to be applied. It found that
Mr. Burke had every expectation that he would be working by the first part
of December, 2009, that the work was delayed due to negotiations and it became
apparent to Mr. Burke by January 20, 2010 that the work would not start
that winter. He then applied for benefits on January 25, 2010. These findings
of fact were supported by the record before the Board.
[14]
On
the basis of these findings of fact, the Board’s conclusion that Mr. Burke had
acted as any reasonable and prudent person would act in the circumstances fell
within the range of possible, acceptable outcomes which were defensible in
respect of the facts and law. The Board’s reasons were justified, transparent
and intelligible. Its decision was, therefore, reasonable. It follows that it
was reasonable for the Umpire to dismiss the Commission’s appeal from the
decision of the Board.
Conclusion
[15]
For
these reasons, I would dismiss the application for judicial review. As Mr.
Burke did not enter any formal appearance I would not make any award of costs.
“Eleanor R. Dawson”
“I agree.
John
M. Evans J.A.”
“I agree.
Anne Mactavish J.A.” (ex
officio)
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