Date:
20080417
Docket:
A-403-07
Citation:
2008 FCA 145
CORAM: LÉTOURNEAU
J.A.
SHARLOW
J.A.
TRUDEL
J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
RITA SCOTT
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Toronto, Ontario, on April 17,
2008)
LÉTOURNEAU
J.A.
[1]
This
is an application for judicial review of a decision rendered by an Umpire (CUB
68669) who reversed the decision of a Board of referees (Board), thereby
accepting an antedated claim for unemployment insurance benefits.
[2]
For
the reasons that follow, we are of the view that the application should be
granted.
[3]
The
respondent delayed her claim for benefits for some ten (10) months. She left
her work on January 28, 2005. From April 18 to November 18, 2005, she was a
sponsored student. She said she was unaware that she may have been entitled to
such benefits while receiving assistance through a First Nation Education
Authority.
The decision of the
Board
[4]
The
Board found that she offered no good cause for the delay in applying for
benefits. In the Board’s opinion, the respondent had been negligent in not
informing herself of her rights and obligations under the Employment
Insurance Act, S.C. 1996, c. 23 (Act). It also found that there was a
period of time during which she was not a student.
[5]
The
Board considered three justifications provided by the respondent, i.e. that she
was a student, her fear of being accused of attempting to abuse the system by
applying for unemployment benefits because of the other financial assistance
she was receiving, and the fact that she was unaware that, as a sponsored
student, she could apply for unemployment insurance benefits: see the Board’s
decision at pages 56 and 57 of the Applicant’s Record.
[6]
Confronted
with the respondent’s admitted ignorance of the law, the Board properly applied
the legal principles established by this Court in Canada (A.G.) v.
Albrecht,
[1985] 1 F.C. 710. It looked at what a reasonable person would have done to
satisfy herself as to her rights and obligations under the Act: see Albrecht,
supra. It concluded that the respondent had failed to act diligently.
The decision of the
Umpire
[7]
Before
the Umpire, the representative of the respondent argued that the Board had
failed to consider the respondent’s argument that she feared she would be
accused of attempting to abuse the system. We do not think that this is a fair
reading of the Board’s decision as the Board addressed that issue.
[8]
Pursuant
to that contention, the Umpire requested a transcription of the hearing before
the Board to confirm exactly what the respondent had stated before the Board.
Unfortunately, the tapes could not be located. Upon being informed of the fact
that the tapes were unavailable, the Umpire granted the respondent’s appeal and
quashed the Board’s decision. The following paragraphs are the only two
paragraphs that the Umpire gave in support of his conclusion:
I agree with
the claimant’s representative’s submissions that what the claimant would have
stated to the Board was important in determining if she has established just
cause for her delay in applying for benefits. Once again, the Commission is
responsible for not providing a copy of the recording of a Board hearing. The
claimant should not be penalized for the Commission’s negligence.
I accept
that the claimant had made the comments as stated by her representative and
that these comments could have provided an explanation in regard to a good
cause for her delay in applying for benefits earlier.
[Emphasis added]
[9]
We
believe that it is important once again to underline the exceptional nature of
the benefit conferred by subsection 10(4) of the Act. The subsection allows for
the antedating of a claim. In The Attorney General of Canada v. Brace, 2008 FCA
118, at paragraphs 6 and 7, quoting excerpts from Canada (Attorney
General) v. Beaudin, 2005 FCA 123 and providing additional
justification for the timely filing of an application for benefits, this Court
wrote:
[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.
[10]
The
Umpire could not use the unavailability of the transcript as a ground for
setting aside the Board’s decision unless it could be shown that the absence of
the tape or transcript effectively denied the respondent her right of appeal
before the Umpire: see Canada (Attorney General v.
Valladolid,
2004 FCA 142.
[11]
There
is no such prejudice in this case because the respondent made the same argument
before the Umpire that she had made before the Board. The Umpire’s duty was
then to consider and assess the argument. This he did not do. It was not
sufficient for him to say “that these comments could have provided an
explanation in regard to a good cause for her delay in applying for benefits
earlier.” (emphasis added). Either the respondent’s fear did provide a good
explanation or it did not. To state what a possible effect of an argument is
and to leave it at that is not to adjudicate on the merit of that argument. It
leaves the answer in the realm of speculation.
[12]
In
the present instance, the Board found that the failure of the respondent to
claim benefits immediately upon her eligibility was the result of her ignorance
of the law. If, as she said, she did not claim the benefits while a student
because she was afraid that it could be seen as an abuse, she then had at the
time even more reasons for inquiring about her status, her rights and
obligations under the Act.
[13]
In
our opinion, it was not reasonably open to the Umpire on the facts of this case
to conclude as he did. A reasonable person in the respondent’s situation would
have taken steps to enquire about her rights and obligations under the Act.
[14]
The
application for judicial review will be allowed, the decision of the Umpire set
aside and the matter referred back to the Chief Umpire, or a person that he
designates, for a new determination on the basis that the respondent’s appeal
from the decision of the Board of referees shall be dismissed.
“Gilles
Létourneau”
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