Date: 20100414
Docket: A-291-09
Citation: 2010 FCA 101
CORAM: NOËL
J.A.
EVANS
J.A.
DAWSON J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
MIKHAIL PERSIIANTSEV
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench at Toronto, Ontario, on April 14, 2010.)
NOËL J.A.
[1]
This is a judicial
review application directed against a decision of Umpire Stevenson who held
that Mikhail Persiiantsev (the claimant) had good cause for the delay in making
his application for benefits, and that accordingly his claim could be
antedated. In so holding, the Umpire confirmed an earlier decision of the Board
of Referees (the Board).
[2]
Subsection 10(5) of
the Employment Insurance Act, S.C. 1996, c. 23 (the Act) sets out the
circumstances in which a claim may be antedated:
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10.
(5)
A claim for benefits, other than an initial claim for benefits, made after
the time prescribed for making the claim shall be regarded as having been
made on an earlier day if the claimant shows that there was good cause for
the delay throughout the period beginning on the earlier day and ending on
the day when the claim was made.
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10.
(5)
Lorsque le prestataire présente une demande de prestations, autre qu’une
demande initiale, après le délai prévu par règlement pour la présenter, la
demande doit être considérée comme ayant été présentée à une date antérieure
si celui-ci démontre 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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[3]
The essence of the
reasoning of the Board for allowing the antedate is as follows (reasons of the
Board, application record, p. 53):
The claimant indicated through his translator that he did
not receive the benefit payments for which he was eligible because of his lack
of English language skills, the shortage of information from Service Canada and
because he thought he had exhausted all of his benefits with the initial claim,
which was not the case.
...
In this case, did the
claimant's reason for returning a late report constitute good cause?
The claimant indicated that he had problems when trying to give his third
report through Teledec. The access code that had worked for him before did not
work the third time. The Umpire in Caverly
v. Canada (CUB 50753)
has ruled that complications using the Teledec system might have some
impact on the failure of a claimant to make his bi-weekly reports.
In this case, because of the difficulty that the claimant had in
accessing Teledec and because of his limited knowledge of Employment Insurance
benefits due to his language barrier and lack of assistance from Service
Canada, the Board finds the Commission's decision was incorrect. The Board
finds that the claimant acted as any reasonable person would have acted in the
same situation and showed that he had good cause for the delay.
[4]
After quoting this
passage from the decision of the Board, the Umpire noted that the question
whether the claimant had good cause is one of fact. He went to dismiss the
appeal from the Board’s decision on the basis that it had not been shown to be
unreasonable.
[5]
The applicant
contends that the Umpire committed a reviewable error in failing to intervene.
In particular, it submits that the Board ignored evidence that the claimant had
received his access code along with instructions and had successfully filed two
previous Teledec reports and received two benefit cheques. In the same vein,
the applicant alleges that the Board ignored the evidence of the claimant who
indicated that the reason why he did not pursue his claim is that he believed
that he had received all available benefits.
[6]
As such, the
applicant submits that the conclusion reached by the Board that the failure to
pursue the claim in time was due to language difficulties is unreasonable, and
the Umpire was bound to intervene.
[7]
We respectfully
disagree. With respect to the two prior successful attempts to use the Teledec
system, the Board accepted the claimant’s evidence that the access code that
had worked for him in the past did not work for him on the third occasion. This
is a finding that was open to the Board, and which cannot be labeled as
unreasonable.
[8]
With respect to the
claimant’s statement that he believed his entitlement to benefits was
exhausted, he explained before the Board that this is why he did not pursue the
matter when his access code failed on the third occasion. The Board ultimately
attributed the claimant’s erroneous understanding of his rights to linguistic
difficulties and the lack of assistance from Service Canada. Again, this was a conclusion
that was open to the Board and cannot be labeled as unreasonable.
[9]
Alternatively, the
applicant contends that although the Board identified the proper test for
establishing good cause, it did not apply it properly. The test in question was
set out by this Court in Canada (Attorney General) v. Waldemar Albrecht, [1985] 1 F.C. 170:
… when a claimant has failed to file his claim in a timely
way and his ignorance of the law is ultimately the reason for his failure, he
ought to be able to satisfy the requirement of having "good cause",
when he is 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. …
[10]
The applicant submits
that the applicant’s belief that he had received all the benefits from his
claim is not sufficient to establish good cause for the delay, and that the
Board erred in accepting this explanation without more.
[11]
However, the Board
was well aware that ignorance of the law is not good cause for delaying an
application, since it says so much in the course of its reasons (reasons of the
Board, applicant’s record, p. 53). A fair reading of the decision of the Board
shows that the members understood that the claimant had to demonstrate good
cause for the delay throughout the period; that the standard applicable is that
of a reasonable person in the same circumstances; and that not knowing the law,
without more, is insufficient. These factors are consistent with and adequately
reflect the legal test for good cause.
[12]
In our view, it has
not been shown that the Board erred in applying the legal test for good cause.
[13]
The judicial review
application will be dismissed.
"Marc
Noël"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-291-09
(AN APPLICATION FOR JUDICIAL REVIEW
REGARDING A DECISION OF MR. JUSTICE STEVENSON, AS UMPIRE, CUB 72513)
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA v.
MIKHAIL
PERSIIANTSEV
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 14, 2010
REASONS FOR JUDGMENT OF THE COURT BY: NOËL, EVANS & DAWSON JJ.A.
DELIVERED FROM THE BENCH BY: NOËL J.A.
APPEARANCES:
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Derek Edwards
|
FOR THE APPLICANT
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Mikhail
Persiiantsev
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FOR THE RESPONDENT
(Self-Represented)
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SOLICITORS OF RECORD:
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Myles Kirvan
Deputy Attorney General of Canada
|
FOR THE APPLICANT
|
|
N/A
|
FOR THE RESPONDENT
(Self-Represented)
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