Date:
20090929
Docket: A-93-09
Citation:
2009 FCA 282
CORAM: SEXTON
J.A.
SHARLOW
J.A.
RYER
J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
MANSOUREH
MEHDINASAB
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Vancouver, British Columbia, on September 29, 2009)
RYER J.A.
[1]
This
is an application for judicial review of a decision (CUB 71716) of Umpire
Teitelbaum, dated January 8, 2009, allowing the appeal of Mansoureh Mehdinasab (the
“respondent”) from a decision of the Board of Referees (the “Board”), dated
August 11, 2008.
[2]
In
its decision, the Board denied the respondent’s request to antedate her claim
for benefits to a date earlier than the date that she actually made her claim.
Antedating of a claim is permitted by subsection 10(4) of the Employment
Insurance Act, S.C. 1996, c. 23 (the “Act”), where the claimant can
demonstrate good cause for the delay in making the claim.
[3]
The
relevant portion of the Act is subsection 10(4), which reads as follows:
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10(4) 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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10(4) 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.
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[4]
The
record confirms that the respondent took ill on a flight to the Middle East on
November 15, 2007, was hospitalized outside Canada and returned
to Canada on March 1,
2008. She reported for work on March 3, 2008 and put in her claim for benefits
on May 13, 2008, requesting that it be antedated to November 18, 2007, the
earliest date that she qualified to receive benefits. It is also clear that
upon her return to work, or some time shortly after that date, the respondent’s
employer gave her a Record of Employment form that referred to medical leave as
the reason for her cessation of employment on November 15, 2007.
[5]
The
Board found that the respondent delayed making her claim until May 13, 2008
because she was unaware that she had the right to apply for benefits and no one
informed her of that right. In addition, the Board held that she did not take
reasonable steps to acquaint herself with her rights.
[6]
The
Board determined that during the period that she was absent from Canada, the respondent
had good cause for not making her claim for benefits. However, the Board found
that she did not have good cause for delaying the application from March 3,
2008, when she returned work, until May 13, 2008, when she made her claim for
benefits.
[7]
The
Board held that good cause had to exist during the entire period from November
18, 2007 to May 13, 2008, and that for the latter part of that period, after
she returned to work, her only reason for the delay in making the claim was her
unawareness of her right to do so. That reason, together with its finding that the
respondent did not take reasonable steps to acquaint herself with her right to
claim benefits, led the Board to dismiss her appeal.
[8]
The
respondent appealed the Board’s decision to the Umpire who essentially adopted
the factual findings made by the Board and agreed that the respondent’s
ignorance of her legal rights was not a sufficient basis upon which to grant
her request to have an antedated benefit commencement date. However, the Umpire
then found that there were “special circumstances” that justified granting her appeal.
In particular, he stated:
The claimant
left Canada for Iran and became extremely ill. She returned to Canada and went to
work as soon as she could but was not told that she could apply for benefits.
Upon learning of this possibility, she filed immediately.
[9]
With
respect, we must conclude that the Umpire’s decision to grant the respondent’s
appeal cannot stand. In our view, the Umpire erred in law by substituting his view
of the facts for that of the Board, when the Board’s appreciation of the facts
was reasonable, given the evidence before it.
[10]
Accordingly,
the application for judicial review will be allowed, the decision of the Umpire
will be set aside and the matter will be remitted to the Chief Umpire for
redetermination on the basis that the decision of the Board was reasonable.
"C.
Michael Ryer"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-93-09
STYLE OF CAUSE: Attorney
General of Canada v. Mansoureh Mehdinasab
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: September 29, 2009
REASONS FOR JUDGMENT OF THE
COURT BY: (SEXTON, SHARLOW, RYER JJ.A.)
DELIVERED FROM THE BENCH BY: RYER J. A.
APPEARANCES:
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Cindy Mah
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FOR
THE APPLICANT
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SOLICITORS
OF RECORD:
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John H Sims, Q.C.
Deputy
Attorney General of Canada
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FOR THE APPLICANT
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