SOCIAL SECURITY TRIBUNAL DECISION General Division Employment Insurance Section

Transcription

1 Citation: Y. H. v. Canada Employment Insurance Commission, 2017 SSTGDEI 129 Tribunal File Number: GE BETWEEN: Y. H. Appellant and Canada Employment Insurance Commission Respondent SOCIAL SECURITY TRIBUNAL DECISION General Division Employment Insurance Section DECISION BY: Alison Kennedy HEARD ON: August 2, 2017 DATE OF DECISION: August 8, 2017

2 - 2 - REASONS AND DECISION OVERVIEW [1] The Appellant made an initial claim for Employment Insurance (EI) benefits on September 08, She then applied to have her claim antedated to May 11, The Respondent denied the Appellant s request to antedate her claim, finding that she did not demonstrate she had good cause for the delay in seeking benefits. [2] The Appellant requested a reconsideration of this decision. The Respondent maintained its initial decision upon reconsideration. [3] The Appellant is now appealing the reconsideration decision to the Social Security Tribunal (Tribunal). The Tribunal must decide whether to allow the Appellant s request to antedate her claim for benefits. [4] The Tribunal hearing was held by teleconference for the following reasons: a) The fact that the appellant will be the only party in attendance. b) The information in the file, including the need for additional information. c) The form of hearing respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit. [5] The Tribunal finds that the Appellant has not demonstrated that she acted as a reasonable person in her situation would have done to satisfy herself as to her rights and obligations under the Employment Insurance Act (Act), and consequently, her request to antedate her claim is denied. The reasons for this decision follow. EVIDENCE [6] The Appellant made a claim for EI benefits on September 8, 2016 (GD3-3 to GD3-14). She then requested that her claim be antedated to May 11, 2016, the day after she stopped working (GD3-15).

3 - 3 - [7] The Appellant stated that the delay in filing her claim was related to a problem she had with the federal government s Phoenix pay system. Specifically, the Appellant stated that she was still being paid for full time work until July 27, 2016, at which point the payments to her stopped. The Appellant took this to mean that progress was being made in her case, and she then waited to be issued her Record of Employment (ROE), expecting it would take two weeks or so. The Appellant went in to a Service Canada office once she had not yet received her ROE by early September. [8] Upon reconsideration, the Appellant noted that she contacted her employer as soon as she realized that she was still receiving full pay despite her last day of work being May 10, 2016, as she knew that an ROE would not be issued until payments to her stopped (GD3-21). [9] The Appellant submitted s between her and her former employer, in which the Appellant was seeking assistance to obtain her ROE and stop payments to her, with her former employer warning her that thousands of government employees were having pay problems and requesting she be patient (GD3-23 to GD3-26). SUBMISSIONS [10] The Appellant submits that her delay in applying for benefits was directly related to the pay issues she had with the Phoenix pay system, and that had she not had these issues and received her ROE when requested she would not have delayed applying for benefits. [11] The Appellant stated that she would have applied for benefits right away if she had known that she could apply without her ROE, but that she believed an ROE was required to apply for benefits as she always had a ROE to apply for benefits in the past. Furthermore, she notes that at no time did her employer tell her that she could apply for EI benefits without her ROE. The Appellant stated that she did not approach Service Canada sooner because she believed that this was an issue with her employer that she had to resolve prior to applying for benefits. [12] The Respondent submits that the Appellant did not act as reasonable person would have to verify her rights and obligations under the Act. While the Appellant assumed she could not file a claim because she did not have a ROE, she did not enquire with Service Canada for

4 - 4 - assistance or advice on this issue until September. The Respondent submits that the Appellant was not prevented from applying for EI benefits during the period of the delay, but she was simply unaware she could and delayed seeking advice on this point. [13] The Respondent submits that the Appellant could have taken action earlier in order to find out whether the assumptions she had about the EI process were correct or not, such as visiting a Service Canada centre, calling the call centre line, or searching online. [14] The Respondent submits that such a lack of action until early September means that the Appellant did not act like a reasonable person in a similar situation who is concerned with their rights to benefits would have done. ANALYSIS [15] The relevant legislative provisions are reproduced in the Annex to this decision. [16] In order to have an initial claim for benefits antedated, a claimant must show that he or she was qualified to receive the benefits on the earlier date, and that there was good cause for the delay during the complete period of delay (Mauchel v. Canada (Attorney General), 2012 FCA 202; Bradford v. Canada, 2012 FCA 120). [17] The Federal Court of Appeal has found that showing good cause for a delay in making one s initial claim for benefits involves demonstrating that a person acted as a reasonable and prudent person would have done in the same circumstances to satisfy themselves of their rights and obligations under the Act (Mauchel; Attorney General of Canada v. Albrecht, A ). [18] Relevant jurisprudence holds that unless exceptional circumstances exist, a reasonable person is expected to take reasonably prompt steps to understand their entitlement to benefits and obligations under the EI Act (see Kaler; Canada v. Carry, 2005 FCA 367). Indeed, according to Canada v. Brace, 2008 FCA 118, the obligation and duty to promptly file a claim is seen as very demanding and strict, which is why the threshold to prove good cause for delay is high. [19] The Federal Court of Appeal has noted a policy reason for this strictness, in finding that antedating a person s claim for benefits may adversely affect the integrity of the system, as it gives a person a retroactive award of benefits, without the chance to verify the person s

5 - 5 - eligibility criteria throughout the period of retroactivity (Canada v. Beaudin, 2005 FCA 123). Consequently, the jurisprudence that has developed around this area of law is quite strict, and antedating has been found to be an advantage that should be applied exceptionally (Canada v. McBride, 2009 FCA 1; Canada v. Scott, 2008 FCA 145; Canada v. Brace, 2008 FCA 118). [20] In this case, the burden is on the Appellant to demonstrate that there was good cause for delay. The Tribunal finds that the Appellant was very credible and genuine in her explanation that she was not aware that she could apply for EI benefits without her ROE and that if she had known this she certainly would have applied sooner. [21] However, as noted, jurisprudence in this area has resulted in a high bar, such that ignorance of the law, even if coupled with good faith, is not sufficient to establish good cause. Rather, the correct legal test for good cause is whether the Appellant acted as a reasonable person in her situation would have done to satisfy herself as to her rights and obligations under the Act (Canada (AG) v. Kaler, 2011 FCA 266). Furthermore, while the Appellant noted that her former employer never told her to apply for EI benefits without her ROE, the legal obligation in this instance to make inquiries to establish her rights and obligations under the Act is that of the Appellant rather than her employer. [22] While the Appellant has provided ample evidence that she took many steps to follow up with her former employer about the pay problems she was having because of the Phoenix system and attempting to obtain her ROE, unfortunately, this is not adequate to prove that she acted as a reasonable person would have done to satisfy herself as to her rights and obligations under the Act. [23] The Appellant has validly submitted that she would not have delayed applying for benefits but for the fact that she was caught up in pay problems that led to her not receiving her ROE soon after her employment finished. While this may be the case, and while the Tribunal can certainly empathize with the frustration the Appellant must feel with having been caught up in the pay problems of the Phoenix system, it was nonetheless incumbent on her to make timely inquiries of Service Canada to seek advice on this issue, at which point it she would have been advised of her ability to apply for benefits despite the problems obtaining her ROE.

6 - 6 - [24] Unfortunately, in this case, the Appellant did not make such inquiries until September, 2016, and as such, failed to demonstrate that she acted as a reasonable person would have in her situation to satisfy herself of her rights and obligations under the Act prior to this time. CONCLUSION [25] The appeal is dismissed. Alison Kennedy Member, General Division - Employment Insurance Section

7 - 7 - ANNEX THE LAW Employment Insurance Act 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.