Date: 20110922
Docket: A-124-11
Citation: 2011 FCA 266
CORAM: SHARLOW J.A.
LAYDEN-STEVENSON J.A.
STRATAS J.A.
BETWEEN:
THE
ATTORNEY GENERAL OF CANADA
Applicant
and
JASWANT KALER
Respondent
Heard at Toronto, Ontario, on September
22, 2011.
Judgment delivered at Toronto,
Ontario, on September
22, 2011.
REASONS FOR JUDGMENT BY: LAYDEN-STEVENSON
J.A.
CONCURRED
IN BY:
SHARLOW J.A.
STRATAS J.A.
Date: 20110922
Docket: A-124-11
Citation: 2011 FCA 266
CORAM: SHARLOW
J.A.
LAYDEN-STEVENSON
J.A.
STRATAS
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
JASWANT KALER
Respondent
REASONS FOR JUDGMENT
LAYDEN-STEVENSON J.A.
[1]
I would allow the applicant Crown’s application
for judicial review of the decision of Umpire Landry (the Umpire) upholding a
decision of the Board of Referees (the Board). The Board granted the
respondent’s request to antedate her application for employment insurance
benefits (benefits) under the Employment Insurance Act, S.C. 1996, c. 23
(the Act). The respondent did not file written submissions and although present
at the hearing before us, did not make oral submissions.
[2]
The respondent was laid off from her employment
on November 7, 2008 and applied for benefits on August 19, 2009. The Commission
denied the claim because the respondent had not accumulated sufficient
insurable hours in the 52 weeks preceding her application. The respondent
appealed to the Board of Referees and requested that her claim be antedated to
November, 2008.
[3]
Before the Board, the respondent stated that she
was illiterate and did not apply for benefits earlier because her employer
indicated she would be called back when more work was available. She left
Canada for India in January,
2009. In February, she was involved in an accident in India and her return to Canada was delayed until July. After her return, family and friends
advised her to apply for benefits. Although she requested her Record of
Employment from her employer, she did not obtain it until August 6, 2009.
[4]
The antedating of claims is permissible under
subsection 10(4) of the Act in circumstances where good cause for the delay in
applying for benefits is established. To establish good cause, the
jurisprudence of this Court requires that a claimant “be able to show that
[she] did what a reasonable person in [her] situation would have done to
satisfy [herself] as to [her] rights and obligations under the Act”: Canada
(A.G.) v. Albrecht, [1985] 1 F.C. 710 (C.A.) (Albrecht).
It is also settled law that a claimant has an obligation to take “reasonably
prompt steps” to determine entitlement to benefits and to ensure her rights and
obligations under the Act: Canada (A.G.) v. Carry, 2005 FCA 367, 344 N.R. 142 (Carry).
This obligation imports a duty of care that is both demanding and strict: Albrecht,
para. 13. Good cause must be shown throughout the entire period for which the
antedate is required: Canada (A. G.) v. Chalk, 2010 FCA 243. Ignorance of the law,
even if coupled with good faith, is not sufficient to establish good cause: Canada (A.G.) v. Somwaru,
2010 FCA 336; Carry, para. 5.
[5]
The Board acknowledged the legal test
articulated in Albrecht. However, it did not examine the facts of the
respondent’s case in relation to the above cited principles of law. Rather, it
accepted that the respondent was illiterate and concluded that the respondent’s
illiteracy “provides cause for taking an excessive amount of time to apply for
benefits.” It allowed the respondent’s appeal with respect to the “denial of an
antedate.”
[6]
The Umpire reviewed the factual context,
referred to excerpts from the Board’s decision and concluded there was evidence
to support the finding that the respondent’s illiteracy constituted good cause.
The Umpire did not refer to any jurisprudence.
[7]
In my view, the Umpire erred when he failed to
address the applicable law regarding “good cause for delay.” In Canada (A.G.)
v. Brace, 2008 FCA 118, 377 N.R. 228, this Court concluded that an
Umpire erred in failing to set out the proper legal test since the facts must
be viewed expressly through the lens of the proper definition. In this case,
the Board erred in failing to apply the law to the facts and the Umpire erred
in failing to intervene.
[8]
Consequently, for these reasons, I would allow
the application for judicial review. At the hearing, Crown counsel informed the
Court that the appropriate remedy would be to return the matter for rehearing.
According to counsel, whether the respondent could succeed, with the benefit of
a supplemented record, remains an open question. Consequently, I would set
aside the decision of the Umpire and return the matter to the Chief Umpire or
one of his designates for redetermination on the basis that the decision of the
Board of Referees be set aside and the matter be returned to a newly
constituted Board of Referees for a new hearing. I would not award costs since
none were sought.
“Carolyn
Layden-Stevenson”
“I
agree
K. Sharlow J.A.”
“I
agree
David Stratas J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-124-11
AN APPEAL FROM AN ORDER OF THE
HONOURABLE MR. JUSTICE J. LANDRY OF THE UMPIRE COURT, DATED JANUARY 27, 2011,
IN COURT FILE NO.: CUB 76327.
STYLE OF CAUSE: THE ATTORNEY GENERAL OF
CANADA v. JASWANT KALER
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: SEPTEMBER 22, 2011
REASONS FOR JUDGMENT BY: LAYDEN-STEVENSON J.A.
CONCURRED IN BY: SHARLOW J.A.
STRATAS J.A.
DATED: SEPTEMBER 22, 2011
APPEARANCES:
|
Derek Edwards
|
FOR THE APPELLANT
|
|
No
appearance
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
MYLES J. KIRVAN
Deputy Attorney General of Canada
|
FOR THE APPELLANT
|
|
N/A
|
FOR THE RESPONDENT
|
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