Date:
20101213
Docket:
A-108-10
Citation:
2010 FCA 341
CORAM: DAWSON J.A.
LAYDEN-STEVENSON
J.A.
STRATAS
J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
DIANNE M.
INNES
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench at Toronto, Ontario, on December 13,
2010)
[1]
We
are of the view that this application for judicial review of the Umpire’s
decision must be allowed.
[2]
On
February 6, 2009, the claimant requested that her claim for employment
insurance benefits be antedated to May 28, 2008. Subsection 10(4) of the Employment
Insurance Act, S.C. 1996, c. 23 (the Act) allows for the antedating
of claims in circumstances where a claimant can establish good cause for the
delay in applying for benefits. The jurisprudence of this Court holds, in order
to establish good cause, a claimant must “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).
[3]
The
claimant explained that she thought she was not eligible for benefits because
she was working part-time. It was only in December 2008, when she happened upon
a newspaper article concerning benefit eligibility that she realized otherwise.
The Commission rejected the request for an antedate, finding that the claimant
did not have good cause throughout the period of the delay.
[4]
The
Board of Referees (the board) allowed the claimant’s appeal. The board
acknowledged the legal test articulated in Albrecht. It opined that the
claimant did not realize that she was eligible and that her “move to Brantford proved to be
more challenging than she had thought.” It noted that, once she became aware of
the opportunity to obtain the benefits through the newspaper article, she made
every effort to expedite her process. On this basis, the board found “that she
acted in a reasonable manner to satisfy herself as to her rights and
obligations under the Act.”
[5]
The
Crown’s appeal to the Umpire was dismissed. Umpire Durocher cited the legal
test from Albrecht and concluded, although ignorance of the law does not
by itself constitute good cause, “when other circumstances and reasons are also
shown, it is for the Board of Referees to decide, all (sic) being
considered, that a claimant acted as a reasonable and prudent person.” He found
that the board “appreciated the circumstances, evaluated the facts and
correctly applied them to the test and the law.”
[6]
The
application of the facts to the law is a question of mixed fact and law and is
reviewable on a standard of review of reasonableness: Martens v. Canada
(A.G.), 2008 FCA 240 at para. 31; Canada (A.G.) v. Greey, 2009 FCA
296; 313 D.L.R. (4th) 93 at para. 19. The Umpire provided no explanation
regarding the “other circumstances” that he felt demonstrated that the claimant
acted as a reasonable and prudent person. The board’s reasons are of no
assistance in this respect because there is no explanation in the record as to
what prompted the board to state that the move to Brantford proved to be
“rather traumatic.”
[7]
The
claimant’s affidavit on this application merely states that the “process of
downsizing and moving to Brantford…turned out to be a very
emotional and stressful move” (claimant’s affidavit at para. 2). There is no
further justification for the failure to apply for benefits until seven months
after the end of the claimant’s employment. Rather, the claimant has
consistently explained that her failure to make an earlier application was the
result of her mistaken assumption that part-time employment was insufficient to
ground a claim for employment insurance benefits.
[8]
This
is problematic because the jurisprudence of this Court holds that a claimant
has an obligation to take “reasonably prompt steps” to determine his or her
entitlement to employment insurance benefits and to ensure his or her rights
and obligations under the Act: Canada (A.G). v.
Carry,
2005 FCA 367, 344 N.R. 142 at para. 5 (Carry); Canada (A.G.) v.
Larouche (1994), 176 N.R. 69 at para. 6 (F.C.A.); Canada (A.G.) v. Brace,
2008 FCA 118; 377 N.R. 228 at para. 12. This obligation imports a duty of care
that is both demanding and strict: Albrecht at para. 13. Ignorance of
the law and good faith are insufficient to amount to good cause: Carry
at para. 5; Attorney General of Canada v. Trinh, 2010 FCA
335 at paras. 7, 8.
[9]
The
record discloses no effort on the claimant’s part to determine her entitlement
or to verify her obligations under the Act. Her review of the newspaper article
concerning benefit eligibility was happenstance. She assumed (incorrectly) that
she did not have enough hours to be eligible to make a claim, but took no steps
to validate that assumption. Although the claimant makes passing reference in
her affidavit to previous difficulties with the employment insurance system in
2000, there is no detail provided and the record is silent in this respect.
[10]
In
our view, in spite of the deference owing to the Umpire, we conclude that his
decision was unreasonable because there is no basis in the record to justify
the claimant’s delay or to demonstrate that she took reasonable steps to
discharge her obligations, as required by the jurisprudence of this Court.
[11]
Consequently,
for these reasons, the application for judicial review will be allowed, the
decision of the Umpire will be set aside and the matter will be returned to the
Chief Umpire or one of his delegates for redetermination on the basis that the
claimant has not demonstrated good cause for the delay in applying for
benefits. No costs were sought and none will be awarded.
“Carolyn
Layden-Stevenson”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-109-10
(AN
APPLICATION FOR JUDICIAL REVIEW OF A DECISION OF JUSTICE DUROCHER, AS UMPIRE,
DECISION DATED FEBRUARY 25, 2010, IN FILE NO. CUB 74059)
STYLE
OF CAUSE: ATTORNEY GENERAL OF CANADA
Applicant
and
DIANNE
M. INNES
Respondent
PLACE OF HEARING: TORONTO,
ONTARIO
DATE OF HEARING: DECEMBER 13, 2010
REASONS FOR JUDGMENT OF THE
COURT BY: DAWSON, LAYDEN-STEVENSON, STRATAS
JJ.A.
DELIVERED FROM THE BENCH BY: LAYDEN-STEVENSON J.A.
APPEARANCES:
|
Derek Edwards
|
FOR
THE APPLICANT
|
|
Dianne M. Innes
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR THE APPLICANT
|
|
Dianne M. Innes, ON HER OWN BEHALF
|
FOR THE RESPONDENT
|
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