Date:
20120420
Docket: A-313-11
Citation: 2012 FCA 120
CORAM: PELLETIER
J.A.
GAUTHIER
J.A.
STRATAS J.A.
BETWEEN:
JONATHAN
BRADFORD
Applicant
and
CANADA EMPLOYMENT
INSURANCE COMMISSION
HUMAN
RESOURCES AND SKILLS DEVELOPMENT CANADA
Respondent
Heard at Edmonton,
Alberta,
on April 17, 2012.
Judgment
delivered at Ottawa,
Ontario, on April
20, 2012.
REASONS FOR
JUDGMENT
GAUTHIER J.A.
[1]
Mr.
Bradford seeks judicial review of the decision of Umpire Seniuk (the Umpire)
who denied his appeal from the decision of the Board of Referees (the Board)
upholding the Commission’s denial of his antedate request pursuant to
subsection 10(4) of the Employment Insurance Act, S.C. 1996, c. 23 (the
Act).
Background
[2]
Under
subsection 10(4) of the Act, a claim for Employment Insurance
(EI) benefits made after the day when the claimant was first qualified to make
the claim can be “antedated” if the claimant shows (a) that he was qualified to
receive benefits on the earlier day and (b) 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. It is not disputed that Mr. Bradford met the
first condition.
[3]
According
to this Court’s jurisprudence, in order to establish “good cause”, a claimant
must demonstrate that he did what a reasonable and prudent person would have
done in the same circumstances: Canada (A.G.) v. Albrecht, [1985] 1 F.C.
710 (C.A.); Canada (A.G.) v. Caron, [1986] A.C.F. no 85 (QL), 69 N.R.
132;
Canada
(Attorney General) v. Smith, [1993] F.C.J. No. 368 (QL), 153 N.R. 317
(C.A.).
[4]
In
this matter, the Applicant submitted his claim for benefits on November 22,
2006, requesting that his claim be antedated to February 28, 2006, the day
after his last day of work with his employer.
[5]
In
explaining this nearly nine-month delay, the Applicant said that when he lost
his employment, he chose not to file a claim. He intended to live off his
savings until he found suitable employment. Much later, he had to reassess his
financial situation after becoming aware of “a debt that [he] potentially
owe[d] to the EI program due to an overpayment that apparently occurred over 5
years ago” [Application for Employment Insurance Benefits, p. 41 of the Applicant’s Record].
[6]
According
to the Applicant, but for the Commission’s mishandling of this overpayment
claim, he would have been aware of the alleged debt and would have claimed the
benefits on a timely basis.
[7]
Apart
from his testimony explaining in detail the history of this previous
overpayment claim between 2002 and 2006, Mr. Bradford relied on a decision of
another Board of Referees made two years earlier (the 2007 decision) granting
him an extension to file an appeal of the Commission’s decision in respect of
this overpayment claim after finding that there were “a number of existing
discrepancies that warrant the allowance of an extension”.
[8]
For
the Applicant, this finding in the 2007 decision, coupled with various
precedents where umpires accepted that delay caused by the Commission’s errors
in communicating relevant information constituted a “good cause” to grant an
antedate request, could only lead to the conclusion that his request should be
granted.
[9]
But
the Board did not accept that this was so. It confirmed the Commission’s
decision that Mr. Bradford had not established good cause for his nine-month
delay. Although the Board accepted that the Commission’s failure to provide
“information which is timely and necessary for the claimant to make intelligent
decisions regarding his application for benefits” could constitute good cause,
this was not what happened here in the Board’s opinion. More particularly, the
Board pointed out that, contrary to the case law cited in support of his
argument, the information Mr. Bradford says he did not receive in a timely
fashion related “not to the antedate case at hand, but to another case
entirely”.
[10] Moreover, the
Board found that even if it were to accept to follow the reasoning proposed by
the Applicant, he himself was responsible for part of the delay in getting the
information about the overpayment because “any reasonable person who has a
possible $10,000 debt hanging over his head would have provided the Commission
with updates as to his whereabouts so as to be informed of the consequences of
his earlier attempts to resolve that case.”
[11] The evidence
before the Board was that the Applicant knew, at least as of November 2003,
that the Commission was claiming that he owed an amount in the order of $10,000
to cover overpayment and penalties. Mr. Bradford stated that for a full year he
made numerous attempts to get in touch with the Commission, requesting
clarification on the overpayment and attempting to convince the Commission
otherwise. But at the end of 2004, he gave up because of the lack of response
to his many letters and phone calls and did not keep the Commission informed of
his current address after that. The Commission’s later attempts to communicate
with him (only one phone call and one letter) failed until the Commission
obtained his correct address from Revenue Canada.
[12] Mr. Bradford
appealed. The two grounds to the appeal to the Umpire can be summarized as
follows:
i)
The
Board erred in law by misconstruing the case law as requiring that the
Commission be solely responsible for the delay in filing a claim; and
ii)
The
Board erred by ignoring the 2007 decision which had already determined on the
basis of the same facts that the Commission was solely at fault.
[13] As mentioned,
the Umpire did not accept Mr. Bradford’s arguments and found that “the Board of
Referees committed no error of law, natural justice or fact, and its decision
ought not to be disturbed”.
ANALYSIS
[14] The Applicant
raised six grounds or errors in the Umpire’s decision that, in his view,
justify either individually or as a whole this Court’s intervention. In my view,
most of these alleged errors do not relate directly to the grounds of appeal
that the Umpire had to deal with. The appeal provided for at section 115 of
the Act is not a review de novo where the Umpire simply
substitutes his own appreciation of the matter.
[15] Thus, I
propose to deal first with the errors that could affect the Umpire’s findings
in respect of the grounds of appeal before him. If the Umpire did not err in
that respect, the rest of his comments becomes superfluous and could not
justify this Court’s intervention.
[16] First, I must
say that I cannot agree with Mr. Bradford’s argument that the Umpire did not
address at all or at least sufficiently the two grounds of appeal he had
raised.
[17] It is clear that
the Umpire did not agree that the Board had erred in law. After correctly
setting out the main legal principles that must guide any determination of
whether there is “good cause” (second and third paragraphs at pages 3-4 of the
decision), the Umpire noted at page 7 that “Mr. Bradford makes too much of the
jurisprudence that allows for Commission errors to be a consideration in
determining whether the antedate should be allowed. That is a consideration, it
is true, but the jurisprudence is clear that each case must be decided on the
basis of all the relevant factual considerations.” In his view, this is
exactly what the Board did. I agree.
[18] The
jurisprudence of this Court is clear: each case must be judged on its own
facts. Mr. Bradford’s assertion that the Board was legally bound to conclude
that he had shown good cause once it accepted that the Commission was partly
(or even totally) at fault for the breakdown in communication in respect of the
overpayment is simply wrong.
[19] The Board’s
statement that the Commission’s failure to provide information could constitute
good cause (see paragraph 9 above) must be read in its proper context. It does
not lead to the conclusion advanced by the Applicant because, later on, the
Board also states clearly that the information that arrived late (October 2006)
in this matter was not of the same nature as the information that has in the
previous cases been found to be necessary for a claimant to make an intelligent
decision, since the information concerned another case. In other words, no
matter who was responsible for the lack of communication of this information,
the information itself was not necessary to ascertain one’s rights under the Act
and to claim benefits within the statutory deadline in the current case.
[20] In Lajeunesse v.
Canada (Employment and Immigration Commission), [1995] F.C.J. No. 1369
(QL) (C.A.), this
Court confirmed that inquiries about an overpayment debt of which one is, at
least in general terms, well aware, simply have no bearing on the question of
whether a claimant had good cause to delay making his claim. Although it is
true that, as noted by the Applicant, he made more effort and inquiries than
Mr. Lajeunesse did, there is no doubt that the Board was entitled at law to
make the findings it did in this respect. Thus, Mr. Bradford has not established
that the Umpire erred on this first ground nor has he persuaded me that the
Board made any error of law.
[21] Turning to the
second ground of appeal, the Umpire stated that the Board was not bound by
factual findings of other Boards of Referees made in related cases, especially
when the applicable test to determine whether an extension of time to file an
appeal should be granted is different from the one set out at subsection 10(4)
of the Act. In his opinion, the jurisprudence with respect to antedate
requests is much more developed and “it is that jurisprudence that must guide
the Board of Referees’ decision on that issue, not the decision of another
Board on the issue of an extension of time to appeal a decision on the question
of earnings and allocation.”
[22] Once again, I
agree with the Umpire. In the circumstances, he had no sound basis to conclude
that the Board ignored or improperly discarded the 2007 decision.
[23] This also means
that Mr. Bradford’s argument that the Umpire misconstrued the 2007 decision
cannot be determinative of this judicial review. Neither can the other three
errors of fact allegedly made by the Umpire in his general reassessment of the
merits of the question before the Board.
[24] This brings me
to the last issue raised by the Applicant – bias. Mr. Bradford relies on two
facts. First, the Umpire also heard (consecutively) his appeal relating to the
overpayment (CUB 77242). Second, the Umpire referred a number of times to the
fact that the Applicant “pursued the antedate seeking a remedy to his over
payment dispute with the Commission.” Mr. Bradford construes these references
as a reproach. He believes that the Umpire construed his request as a misuse of
the system and this could only have tainted his decision. He could not fairly
decide the issues before him.
[25] The test for
reasonable apprehension of bias was articulated by Justice de Grandpré in Committee
for Justice and Liberty v National Energy Board, [1978] 1
SCR 369, at page 394:
....the apprehension of bias must be a
reasonable one, held by reasonable and right-minded persons, applying
themselves to the question and obtaining thereon the required information...
[T]hat test is “what would an informed person, viewing the matter realistically
and practically - and having thought the matter through - conclude. Would he
think that it is more likely than not that [the decision-maker], whether
consciously or unconsciously, would not decide fairly.”
[26] When read in
context, I do not believe that a reasonable and well informed person would understand
the Umpire’s statement as a reproach. It was clear and undisputed during the
hearing before the Umpire - and this is reflected in his decision - that, but
for the delay, Mr. Bradford had the right to claim benefits. He had worked the
required number of insurable hours when he lost his employment. Although
normally the reason why one decides to exercise his or her rights under the Act
is not relevant, here Mr. Bradford had clearly put the issue in play when he
stated in his antedate request that he changed his mind in October-November
2006 and made this claim because of this potential debt and its impact
on his ability to live on his savings.
[27] Having
considered all the circumstances, including the fact that the Umpire did
properly address the grounds of appeal before him, I cannot conclude that the
well informed person would think that it is more likely than not that the
Umpire did not decide the matter fairly.
[28] Mr. Bradford has
not persuaded me that there was a breach of procedural fairness. In fact, I am
satisfied that his submissions and evidence were received and properly
considered.
[29] In the
circumstances, I would dismiss the application with costs.
“Johanne
Gauthier”
“I
agree.
J.D.
Denis Pelletier”
“I
agree.
David
Stratas”
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