Date: 20100924
Docket: A-11-10
Citation: 2010 FCA 243
CORAM: NOËL J.A.
PELLETIER J.A.
TRUDEL J.A.
BETWEEN:
THE
ATTORNEY GENERAL OF CANADA
Applicant
and
DAVID
CHALK
Respondent
Heard at Québec,
Quebec, on September 23,
2010.
Judgment delivered at Ottawa, Ontario,
on September 24, 2010.
REASONS FOR JUDGMENT BY: PELLETIER
J.A.
CONCURRED
IN BY: NOËL
J.A.
TRUDEL J.A.
Date: 20100924
Docket: A-11-10
Citation: 2010 FCA 243
CORAM: NOËL
J.A.
PELLETIER J.A.
TRUDEL
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
DAVID CHALK
Respondent
REASONS FOR JUDGMENT
PELLETIER J.A.
[1]
The respondent
applied for benefits on July 9, 2008, approximately two years after his last
day of work, July 12, 2006. He asked that his application be backdated to
September 2006. His request was refused on the ground that he did not have good
cause for not applying for benefits earlier.
[2]
The respondent
had an explanation for his failure to make his application. He said that on two
occasions, first in October 2006 and then in May 2008, he was told in a
telephone conversation with an agent of the Employment Insurance Commission
that he did not qualify for benefits because he was not an immigrant.
[3]
The Board
of Referees allowed the respondent’s appeal from the Commission’s decision,
saying that the respondent had acted as a reasonable person would have under
similar circumstances. On appeal by the Commission, the Umpire upheld the Board
of Referee’s decision on the basis that, having regard to the Board’s findings
with respect to credibility, the decision was reasonable.
[4]
The
Attorney General (on behalf of the Employment Insurance Commission) now brings
an application for judicial review of the Umpire’s decision on the basis that,
even if the respondent was justified in not making an application for benefits
for a period of time after October 2006, he has not justified his failure to
apply for benefits between July 2006 and the time of this first conversation
with a representative of the Commission in October 2006.
[5]
The
Attorney General relies on authority from this Court, Canada (Attorney General) v.
Mehdinasab,
2009 FCA 382, to the effect that an applicant must justify his failure to apply
for benefits for the entire period of delay.
[6]
As this
Court explained in Canada (Attorney General) v. Beaudin, 2005 FCA 123,
and again in Canada (Attorney General) v. Scott, 2008 FCA 145, the
rationale for the requirement that an application for benefits be made in a
timely fashion is that the retroactive payment of benefits impedes the
Commission’s ability to monitor the administration of the applicant’s benefits.
As a result, issues such as availability for work, and the effect of any
earnings which the applicant may have, cannot be dealt with as they occur.
[7]
In this
case, the respondent has not provided an explanation for his failure to apply
for benefits during the period between July 2006 and October 2006. His failure
to do so means that he has not shown good cause for the entire period of delay
in applying for benefits. This conclusion assumes that the respondent was
credible with respect to the period between October 2006 and May 2008. As a
result, the Umpire erred in law in failing to intervene.
[8]
As a
result, I would allow the application for judicial review, set aside the
decision of the Umpire and remit the matter to the Chief Umpire or his delegate
for re-determination on the basis that the application for judicial review
should be allowed without costs on the ground that the respondent had not shown
good cause for the entire period of his delay in applying for benefits.
"J.D.
Denis Pelletier"
“I
agree.
Marc Noël J.A.”
“I
agree.
Johanne Trudel J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-11-10
STYLE OF CAUSE: THE
ATTORNEY GENERAL OF CANADA and DAVID CHALK
PLACE OF HEARING: QUÉBEC, QUEBEC
DATE OF HEARING: SEPTEMBER 23, 2010
REASONS FOR JUDGMENT BY: PELLETIER J.A.
CONCURRED IN BY: NOËL J.A.
TRUDEL
J.A.
DATED: SEPTEMBER 24, 2010
APPEARANCES:
|
ANTOINE LIPPÉ
|
FOR
THE APPLICANT
|
|
DAVID CHALK
|
FOR
THE RESPONDENT
ON
HIS OWN BEHALF
|
SOLICITORS OF RECORD:
|
MYLES J. KIRVAN
DEPUTY
ATTORNEY GENERAL OF CANADA
|
FOR
THE APPLICANT
|
|
DAVID CHALK
QUÉBEC,
QUEBEC
|
FOR
THE RESPONDENT
ON
HIS OWN BEHALF
|
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