Date:
20080401
Docket:
A-481-07
Citation:
2008 FCA 118
CORAM: LÉTOURNEAU
J.A.
EVANS
J.A.
RYER
J.A.
BETWEEN:
THE ATTORNEY
GENERAL OF CANADA
Applicant
and
RONALD D.
BRACE
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Halifax, Nova Scotia, on April 1,
2008)
LÉTOURNEAU
J.A.
[1]
This
is an application for judicial review of the decision of Umpire Stevenson (CUB
68932) who found that the respondent had “good cause” for the delay in making
an application for unemployment benefits. As a result, he ordered the Canada
Employment Insurance Commission (the Commission) to antedate the respondent’s
application to July 2, 2004.
[2]
The
respondent remained on the payroll of his employer as an inactive employee
until July 2, 2004 receiving regular bi-weekly pay. After July 2, 2004, he
received a final lump sum retirement allowance of $59,500. According to the
respondent, he was told by his employer that he could not apply for
unemployment insurance benefits until he received his record of employment.
[3]
In
December 2004, the respondent instructed a lawyer to enquire from his former
employer about the issuance of the record of employment. According to him, his
lawyer was informed that the said record would be issued in February 2005 when
the respondent would receive the last of his severance payments. No record of
employment was issued in February 2005 and yet it is only late in 2005 that the
respondent’s lawyer would have contacted the employer again. The employer said
that it was the only time he was contacted. The requested document was issued
on January 19, 2006. The respondent received it from his lawyer on January 23.
He filed his application for benefits on March 2, 2006.
[4]
At
issue here is subsection 10(4) of the Employment Insurance Act, S.C.
1996, c. 23 (Act) which allows a claim for benefits to be antedated when there
is a good cause for the delay in making the application. The provision reads:
|
Late initial claims
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.
|
Demande initiale
tardive
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.
|
[5]
The
Umpire was of the view that the respondent had good cause for the delay
throughout the period from July 1, 2004 to March 2006. According to him, the
good cause was the fact that the respondent relied on the incorrect advice from
his employer and his action in seeking assistance of a lawyer to obtain the
record of employment which he found to be reasonable.
[6]
It
is useful at this time to reiterate the justification for the obligation
imposed upon a claimant to make an application for benefits once the
eligibility conditions of section 7 of the Act are met. In Canada (Attorney
General) v. Beaudin, 2005 FCA 123, at paragraphs 5 and 6, this
Court expressed in the following terms the rationale for an early application:
[5] It is
worth noting that subsection 10(4) of the Act is not the product of a mere
legislative whim. It contains a policy, in the form of a requirement, which is
instrumental in the sound and efficient administration of the Act. On the one
hand, this policy helps "to assure the proper administration and the
efficient processing of various claims" and "to enable the Commission
to review constantly the continuing eligibility of a claimant to whom benefits
are being paid": see CUB 18145, June 29, 1999, by Umpire Joyal, and CUB
23893, June 27, 1994, by Umpire Rouleau. Antedating the claim for benefits may
adversely affect the integrity of the system, in that it gives a claimant a
retroactive and unconditional award of benefits, without any possibility of
verifying the eligibility criteria during the period of retroactivity: see CUB
13007, December 12, 1986, and CUB 14019, August 7, 1987, by Umpire Joyal.
[6]
Furthermore, a sound and equitable administration of the system requires that
the Commission engage in a quick verification that is as contemporaneous as
possible with the events and circumstances giving rise to the claim for
benefits: see CUB 15236A, April 30, 1987, by Umpire Strayer. Otherwise, the
Commission finds itself in the difficult position of having to engage in a job or
process of reconstruction of the events, with the costs and hazards pertaining
to such a process. This is what explains the principle, long established by the
jurisprudence of this Court, that ignorance of the Act does not excuse a delay
in filing an initial claim for benefits.
[7]
Moreover,
we should add to this that a claimant is required during the benefit period to
make regular and repeated applications for the benefits and declare income
received during that period. Any false statement in this regard may entail a
loss of or a reduction in benefits and the imposition of penalties. It may also
result in the refund of benefits unduly paid to or illegally obtained by a
claimant as well as in the issuance of a notice of violation which, pursuant to
section 7.1 of the Act, increases the admissibility criteria for future
benefits. All these obligations and the failure to fulfill them are difficult
to enforce and sanction when applications for benefits are delayed and the
benefits granted retroactively. The obligation and duty to promptly file a
claim is seen as very demanding and strict. This is why the “good cause for delay”
exception is cautiously applied.
[8]
We
note that the Umpire did not set out the legal test for determining whether an
applicant for employment insurance benefits had “good cause” to delay so as to
warrant the antedating of his claim. In Canada (A.G.) v.
Albrecht,
[1985] 1 F.C. 710 (F.C.A.), Marceau J.A. stated that in order to establish good
cause, an applicant must “be able to show that he did what a reasonable person
in his situation would have done to satisfy himself as to his rights and
obligations under the Act”.
[9]
As
Marceau J.A. also said in that case, the test is in part subjective and each
case must be judged on its own facts. Nonetheless, in our opinion, the Umpire’s
failure to expressly view the facts through the lens of the above definition of
“good cause” may well have led him astray in his assessment of the
reasonableness of the Board of Referees’ decision.
[10]
In
the present instance, the respondent states that from July 2004 forward he
believed that his former employer was deliberately withholding his record of
employment: see paragraph 52 of his memorandum of fact and law. In these
circumstances, a reasonable person would not have continued relying on his
employer’s earlier advice that benefits cannot be claimed unless and until the
record of employment is received.
[11]
In
addition, there is no evidence on the record that the respondent sought
additional advice or a second opinion on this issue.
[12]
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 test 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 for enquire would
have been the Commission.
[13]
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.
[14]
For
these reasons, the application for judicial review will be allowed without
costs, the decision of the Umpire set aside and the matter referred back to the
Chief Umpire, or to the person that he designates, for a new determination on
the basis that the respondent’s appeal to the Umpire from the Board of
Referees’ decision shall be dismissed.
“Gilles
Létourneau”
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