Date: 20101209
Docket: A-105-10
Citation: 2010 FCA 335
CORAM: SEXTON
J.A.
EVANS J.A.
PELLETIER
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
DAN TRINH
Respondent
REASONS FOR JUDGMENT
SEXTON J.A.
[1]
This is an
application for judicial review of the decision of Umpire Durocher (CUB
74050). Both the Board of Referees and the Umpire found that the respondent
had good cause for delaying her application for benefits under the Employment
Insurance Act, S.C. 1996, c. 23 (the “Act”).
[2]
In my view,
this application should be allowed. The Umpire’s finding that the respondent
had good cause is unreasonable in light of the facts on the record and this
court’s jurisprudence holding that a claimant is generally expected to take
reasonable steps to ascertain her obligations under the Act.
[3]
The
respondent’s last day of work was August 15, 2008, at which time she returned
to school. Her initial claim for employment insurance benefits was filed on
May 5, 2009, effective to May 3, 2009. On her initial application, the
respondent explained this delay by noting simply that she had “returned to
school”. In her Notice of Appeal to the Board of Referees, she further
explained that “I didn’t realize I should have applied immediately after my
last day of work”. In testimony before the Board of Referees, she stated that
she had been given the wrong information about filing for benefits, although
she does not appear to have identified the source of this information.
[4]
Under
subsection 10(4) of the Act, a claimant may antedate a claim for benefits where
“good cause” existed for the entire length of the delay:
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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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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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[5]
The Canada
Employment Insurance Commission denied the respondent’s antedating request on
the grounds that she had not shown good cause for the delay. On appeal, the
Board of Referees accepted the respondent’s testimony that she was given wrong
information. It concluded that being misinformed was good cause for her late
application, and allowed the appeal. The Umpire dismissed the Commission’s
appeal of the Board of Referees’ decision, holding that its findings of fact
were entitled to deference and that the decision was supported by the
jurisprudence.
[6]
The only
reason given by the respondent for the delay is that she was ignorant of the
law because she was misinformed. The issue is whether a claimant can rely
solely on such unverified information in claiming “good cause” under subsection
10(4).
[7]
In Canada v. Carry, 2005 FCA 367 at paragraphs
4-5, Justice Linden made clear that a claimant is under a positive obligation
to ascertain her obligations under the Act:
The Umpire affirmed the
decision of the Board on the basis that it was not unreasonable to hold that
there was good cause in this case. The jurisprudence of this Court, however,
clearly does not permit such a conclusion in this case in that a reasonable
person is expected to take reasonably prompt steps to determine her entitlement
to Employment Insurance benefits. Ignorance of the law and good faith, the
reasons offered for the delay of nine months in this case, have been held to be
insufficient to amount to good cause (emphasis added).
[8]
Justice Létourneau came to a similar conclusion in Canada
v. Bryce, 2008 FCA 118 at paragraphs 12-13:
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 tests 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 to enquire would have been the
Commission. 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 (emphasis added).
[9]
The
general rule was set out by Justice Marceau in Canada (Attorney-General) v.
Caron (1986), 69 N.R. 132 at paragraph 5 (C.A.):
What the [Umpire’s] decision
says is simply that the respondent's error as to her situation and her right to
receive unemployment insurance benefits together with her good faith
constituted good cause…This is precisely the approach which must be rejected if
the will of Parliament is not to be frustrated, and which has in fact been
rejected in [Pirotte v. Canada (Unemployment Insurance Commission),
[1977] 1 F.C. 314] and [Canada (Attorney-General) v.
Albrecht,
[1985] 1 F.C. 710 (C.A.)]. It is worth repeating what the latter judgment said
should be the appropriate principle: only by demonstrating that he did what a
reasonable and prudent person would have done in the same circumstances, either
to clarify the situation regarding his employment or to determine his rights
and obligations under the provisions of the Unemployment Insurance Act, 1971,
can a claimant, who failed to make his claim at the time he ceased to be
employed and to receive a salary, establish a valid excuse for his delay and
have his application considered retroactively. I suppose there could be cases
in which inaction and submissiveness would be understandable regardless, but I
feel that the circumstances would have to be very exceptional…(emphasis
added).
[10]
The law is
therefore clear that, barring exceptional circumstances, a prospective claimant
in the respondent’s position is expected to “take reasonably prompt steps” to
understand her obligations under the Act. As part of this requirement, the
respondent was expected to make reasonable inquiries to verify the information
that she had received. Because she did not do so, it was unreasonable for the
Umpire to conclude that this misinformation constituted good cause for the
respondent’s delayed application. It cannot be said that the circumstances in
this case were “exceptional”.
[11]
For these
reasons, the application for judicial review will be allowed without costs.
The decision of the Umpire will be set aside and the matter referred back to
the Chief Umpire, or the person that he designates, for a new determination on
the basis that the appellant’s appeal to the Umpire from the Board of Referees’
decision shall be allowed.
"J. Edgar Sexton"
“I agree
John
M. Evans J.A."
“I agree
J.D.
Denis Pelletier J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-105-10
(APPLICATION FOR JUDICIAL REVIEW OF A
DECISION OF JUSTICE DUROCHER, AS UMPIRE DATED FEBRUARY 25, 2010 IN DOCKET NO. CUB
74050)
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. DAN TRINH
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 7, 2010
REASONS FOR JUDGMENT BY: SEXTON J.A.
CONCURRED IN BY: EVANS J.A.
PELLETIER
J.A.
DATED: December
9, 2010
APPEARANCES:
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Derek Edwards
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FOR THE APPLICANT
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Dan Trinh
(No Appearance)
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Myles J. Kirvan
Deputy Attorney General of Canada
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FOR THE APPLICANT
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Self-Represented
Waterloo, Ontario
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FOR THE RESPONDENT
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