Date: 20101209
Docket: A-106-10
Citation: 2010 FCA 336
CORAM: SEXTON
J.A.
EVANS J.A.
PELLETIER
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
RAMDASS SOMWARU
Respondent
REASONS FOR JUDGMENT
SEXTON J.A.
[1]
This is an
application for judicial review of the decision of Umpire Durocher (CUB
74046). Both the Board of Referees and the Umpire found that the respondent
had good cause for delaying
his application for benefits under the Employment Insurance Act, S.C.
1996, c. 23 (the “Act”).
[2]
In my
view, this application should be allowed. The Umpire’s finding that the
respondent had good cause is unreasonable in light of this court’s
jurisprudence holding that a claimant is generally expected to take positive
steps to ascertain his obligations under the Act.
[3]
The
respondent was forced to retire on December 31, 2008 because the factory at
which he was employed shut down. He began to collect a pension. The
respondent filed a claim for employment insurance benefits on March 31, 2009,
effective to March 29, 2009. He requested that his claim be antedated to
December 31, 2008. According to the respondent, he believed he could not
receive employment insurance benefits while collecting a pension. When a
friend informed him otherwise, he applied for benefits.
[4]
Under
subsection 10(4) of the Act, a claimant may antedate a claim for benefits where
“good cause” existed for the entire length of the delay:
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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.
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Lorsque le prestataire présente une
demande initiale de prestations après le premier jour où il remplissait les
conditions requises pour la présenter, la demande doit être considérée comme
ayant été présentée à une date antérieure si le prestataire démontre qu’à
cette date antérieure il remplissait les conditions requises pour recevoir
des prestations et qu’il avait, durant toute la période écoulée entre cette
date antérieure et la date à laquelle il présente sa demande, un motif
valable justifiant son retard.
|
[5]
The Canada
Employment Insurance Commission denied the respondent’s antedating request on
the grounds that he had not shown good cause for the delay. The Board of
Referees allowed the respondent’s appeal, finding that “the claimant has acted
in a reasonable manner in this issue”.
[6]
The Umpire
dismissed the Commission’s appeal of the Board of Referees’ decision. Though
the Commission argued that ignorance of the law did not constitute good cause
for a late application, the Umpire held that “there are a number of cases where
ignorance of the law was held to constitute good cause for antedating, when
claimant did show that he acted as a reasonable and prudent person”. He did
not cite any cases in which ignorance of the law was accepted as good cause. According
to the Umpire, a reasonable person could very well have shared the respondent’s
belief that collecting a pension precluded him from claiming employment
insurance benefits.
[7]
The only
reason given by the respondent for the delay is that he was ignorant of the
law. The issue is therefore whether a claimant who took no positive steps to
verify his beliefs can rely on his ignorance of the law and good faith in
claiming “good cause” under subsection 10(4).
[8]
In Canada v. Carry, 2005 FCA 367 at paragraphs
4-5, Justice Linden rejected exactly that argument:
The Umpire affirmed the
decision of the Board on the basis that it was not unreasonable to hold that
there was good cause in this case. The jurisprudence of this Court, however,
clearly does not permit such a conclusion in this case in that a reasonable
person is expected to take reasonably prompt steps to determine her entitlement
to Employment Insurance benefits. Ignorance of the law and good faith, the reasons
offered for the delay of nine months in this case, have been held to be
insufficient to amount to good cause. (emphasis added)
[9]
Justice Létourneau came to a similar conclusion in Canada
v. Bryce, 2008 FCA 118 at paragraphs 12-13:
On the facts of this case, in
our opinion, it was not reasonably open to the Umpire to conclude as he did.
Rather, a proper application of the legal tests to the facts leads to the
conclusion that a person in the respondent’s situation would have enquired
about his rights and obligations and the steps that he should take to protect
his claim for benefits. An obvious place to enquire would have been the
Commission.
We agree with counsel for the
appellant that, in effect, the Umpire accepted as good cause for the delay the
respondent’s inexperience with the system and his reliance on his employer’s
advice when the respondent was no longer justified in doing so (emphasis
added).
[10]
The Umpire
relied on Justice Marceau’s comments in Canada (Attorney-General) v. Albrecht, [1985] 1 F.C. 710 (C.A.).
However, Justice Marceau later clarified that decision in Canada
(Attorney-General) v. Caron (1986), 69 N.R. 132 at paragraph 5 (C.A.):
What the [Umpire’s] decision
says is simply that the respondent's error as to her situation and her right to
receive unemployment insurance benefits together with her good faith
constituted good cause…This is precisely the approach which must be rejected if
the will of Parliament is not to be frustrated, and which has in fact been
rejected in [Pirotte v. Canada (Unemployment Insurance Commission),
[1977] 1 F.C. 314] and Albrecht. It is worth repeating what the latter
judgment said should be the appropriate principle: only by demonstrating that
he did what a reasonable and prudent person would have done in the same
circumstances, either to clarify the situation regarding his employment or to
determine his rights and obligations under the provisions of the Unemployment
Insurance Act, 1971, can a claimant, who failed to make his claim at the time
he ceased to be employed and to receive a salary, establish a valid excuse for
his delay and have his application considered retroactively. I suppose there
could be cases in which inaction and submissiveness would be understandable
regardless, but I feel that the circumstances would have to be very
exceptional…(emphasis added).
[11]
The law is
therefore clear that, barring exceptional circumstances, a prospective claimant
in the respondent’s position is expected to “take reasonably prompt steps” to
understand his obligations under the Act. Because the respondent took no such
steps, it was unreasonable for the Umpire to conclude that his belief he could
not apply for benefits while collecting a pension constituted good cause for
his delayed application. It cannot be said that the circumstances in this case
were “exceptional”.
[12]
For these
reasons, the application for judicial review will be allowed without costs.
The decision of the Umpire will be set aside and the matter referred back to
the Chief Umpire, or the person that he designates, for a new determination on
the basis that the appellant’s appeal to the Umpire from the Board of Referees’
decision shall be allowed.
"J. Edgar Sexton"
“I agree
John
M. Evans J.A."
“I agree
J.D.
Denis Pelletier J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-106-10
(A JUDICIAL REVIEW FROM THE DECISION OF
THE HONOURABLE JUSTICE DUROCHER, AS UMPIRE, DATED FEBRUARY 25, 2010, IN DOCKET
NO. CUB 74046)
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. RAMDASS SOMWARU
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 6, 2010
REASONS FOR JUDGMENT BY: SEXTON J.A.
CONCURRED IN BY: EVANS J.A.
PELLETIER
J.A.
APPEARANCES:
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Derek Edwards
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FOR THE APPLICANT
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Ramdass
Somwaru
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Myles J. Kirvan
Deputy Attorney General of Canada
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FOR THE APPLICANT
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Ramdass
Somwaru
Kitchener, Ontario
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FOR THE
RESPONDENT
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