Employment Insurance (EI)

Reasons and decision

Persons in attendance

B. G., the claimant, attended the hearing via teleconference.

Introduction

[1] The claimant became unemployed on May 29, 2014. He filed for Employment Insurance (EI) benefits on June 2, 2015. The Canada Employment Insurance Commission (Commission) denied the claimant’s antedate request because it was determined that the claimant did not have good cause between May 29, 2014 and June 2, 2015 to apply late. The claimant was further denied benefits because he did not have sufficient hours of insurable employment in order to qualify for EI benefits. The claimant sought reconsideration of the Commission’s decision, which the Commission maintained in their letter dated August 28, 2015. The claimant appealed to the Social Security Tribunal (SST).

[2] The hearing was held by Teleconference for the following reasons:

1. The complexity of the issues under appeal.
2. The fact that the claimant will be the only party in attendance.
3. The information in the file, including the need for additional information.

Issues

[3] The issues under appeal are:

1. whether the claimant has proven good cause for delay in filing his initial claim for benefits pursuant to subsection 10(4) of the Employment Insurance Act (EI Act).
2. whether the claimant has sufficient hours of insured employment to establish a claim pursuant to section 7 of the EI Act.

The law

Antedate

[4] Subsection 10(4) of the EI Act provides that 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.

Benefit Period Not Established

[5] Subsection 7(1) of the EI Act states that unemployment benefits are payable to an insured person who qualifies to receive them.

[6] Subsection 7(2) of the EI Act states that an insured person, other than a new entrant or a re-entrant to the labour force, qualifies if the person

1. a) has had an interruption of earnings from employment; and
2. b) has had during their qualifying period at least the number of hours of insurable employment in relation to the regional rate of unemployment that applies to the person.

[7] Subsection 7(4) of the EI Act states, in part, that an insured person is a new entrant or a re-entrant to the labour force if, in the last 52 weeks before their qualifying period, the person has had fewer than 490 hours of insurable employment.

Evidence

[8] The claimant applied for regular EI benefits stating that in the last 52 weeks he did not have any additional periods of employment. He further indicated that at no time during the last two years was he in receipt of Worker’s Compensation, unable to work for medical reasons, in receipt of group wage loss insurance benefits, prevented from working due to a labour dispute, on a training course, in jail or in receipt of payment from the Wage Earner Protection Program (Pages GD3-3 to GD3-13).

[9] The employer submitted a Record of Employment (ROE) dated June 13, 2014 indicating that the claimant began working as a developer analyst on October 12, 2013 and his last day of work was May 29, 2014 accumulating 1312 hours of insurable employment. The claimant was paid $904.80 vacation pay, $14,476.92 pay in lieu of notice and $62,189.24 retiring allowance. The employer indicated the reason for issuing this ROE was “other” commenting that the retiring allowance pending payment (Page GD3-14).

[10] The Commission provided the EI Economic Region of Calgary for the period of May 10, 2015 to June 6, 2015 showing an unemployment rate of 5.5% and indicating the number of insured hours required to qualify for regular benefits is 700 (Page GD3-15).

[11] The claimant submitted an Application to Antedate Claim for Benefits dated June 2, 2015 requesting to have his claim antedated to June 13, 2014. He stated that that terms of his recognizance forbid him to use computers which prevented him from applying for EI benefits. He stated that his inquiries stated that such applications had to be by computer. He further stated that his lawyer has since gotten that condition amended as of May 8, 2015 allowing him limited use of a computer and internet. He stated this change prevents the parole people from continuing with their prior interpretation of “you can’t be in the same room as a working computer” (Page GD3-16).

[12] The claimant provided a copy of the recognizance conditions which states “#9. You shall not possess or have internet access at your residence” and “#11. You shall not possess or use any computer, cell phone or other device capable of accessing the internet except while at work for work purposes” (Page GD3-17).

[13] The claimant submitted a recognizance amendment dated May 8, 2015 to condition #11 which now states “You shall not possess or use any computer, cell phone or other device capable of accessing the internet except while at work for work purposes and except a computer which is in a public place or unless you are being supervised by another adult who is aware of your criminal charges” (Page GD3-19).

[14] The Commission sent a letter dated June 22, 2015 informing the claimant that his claim for EI benefits cannot start on May 29, 2014 because he did not prove that between May 29, 2014 and June 2, 2015 that he had good cause to apply late for EI benefits (Page GD3-21).

[15] The Commission sent a letter dated June 22, 2015 informing the claimant that he had 0 hours of insurable employment between June 1, 2014 and May 30, 2015 however, he needed 700 hours of insurable employment to qualify for EI benefits (Page GD3-22).

[16] The claimant submitted his Request for Reconsideration stating that he used the phone system which did not indicate a paper application was available. Had that been an option and was in any way indicated, the claimant stated that he would have used it. He further stated his parole officer interpreted the legal restrictions on him stating that having someone else use a computer on his behalf would have been a violation of his restrictions and being in the same room as a working computer was a violation. The claimant explained that it took his lawyer two attempts to get the restriction amended sufficiently to allow him to apply for EI benefits (Page GD3-25).

[17] The claimant was contacted by the Commission and he stated that he called a phone number he found in the phone book and this phone service did not indicate that he could submit a paper application. He stated that the phone service suggested he apply online. He explained that he was unable to do that due to the parole officer’s interpretation of his restrictions and he stated that he spent a lot of money and time with two different lawyers to make the changes on his restrictions in order to apply online (Page GD3-26).

[18] The claimant confirmed that at no time from when he stopped working up to the date he applied for EI benefits did he ask a friend or family member to inquire about how he could apply for EI benefits. He explained that he was relying on the phone system telling him that he should apply online. He further confirmed that he did not ever physically go down to the Service Canada office on his own either to inquire in person stating that he went to the Service Canada office about one week after he applied and the counter person acknowledged that he could have applied with a paper application (Page GD3-26).

[19] The claimant stated that the only reason he went in to the Service Canada office was to make sure that he had applied correctly and that there would not be any problems or bumps with his application. He stated that it was at that time that the front counter acknowledged that he could have applied with a paper application (Page GD3-28).

[20] The Commission provided the transcript of the script said to everyone who calls to inquire about EI benefits. The Commission stated that the script advises claimants that they must submit an application for benefits using the internet and if they do not have access to the internet “you can apply online at your nearest Service Canada Centre.” This script also cautions people that delaying in filing an application for benefits beyond four weeks after their last day of work may cause the loss of benefits. The transcript of the script stated that the caller was provided with the option to Press 0 to speak with an agent. Upon review of the script, it is noted that at no time does the script inform callers that they can Press 0 to speak to an agent (Pages GD3-29 to GD3- 34).

[21] The claimant testified at the hearing that if his reasons for delaying his application are not valid then no reasons for a delay would be valid. The claimant stated that the phone system does not provide the option to speak to an agent. He stated that he read the transcript provided by the Commission several times and nowhere does it provide the option to press 0 to speak to an agent. He stated that he did find out how to speak to an agent explaining that when you call in, it gives you two options: for EI or for a Social Insurance Number and at that point if you press 0 you could speak to an agent but at no other time are you given the option to speak to a person. He stated that he was very frustrated with the system and tried repeatedly so on one occasion as he was randomly pushing numbers he was told that he would be put in the queue to speak to an agent. He stated that he did speak with an agent but they were not very helpful. On subsequent tries, he was unable to get through because of the long wait times. He stated that this was very late in the process and he was trying to talk to the people who had already rejected his claim in order to argue additional facts but the call in line could not put him through to the people he had previously spoken to. He stated that the problem with the phone conversations is that the Commission called him all prepared but caught him flat footed and unprepared; he went away and thought about it and thought that he needed to talk to them again.

[22] The claimant provided a timeline stating that he used the EI phone system to attempt to apply for EI and he stated that he did ask someone to go to the website on his behalf to ensure he had not missed anything but he had to stop them. He stated that he did have intentions to go to the Service Canada Centre but again had to stop. He explained that he was having someone help him with a career option Alberta Government website that fits you with a job or career stating that he was dictating to someone and they were answering the questions on the website. He stated that he went to his parole officer shortly thereafter and he was shocked to discover that having someone use a computer on his behalf was considered a violation of his restrictions of not using a computer. He stated that the parole officer interpreted his recognizance orders to mean that the claimant could not even be in the same room as a working computer. He stated that he had to call his buddy to rescind his request to look on the Service Canada website and he decided to not attend a Service Canada Centre because they have working computers. He stated that this was prior to him knowing that there was a paper option to apply for EI benefits. He added that this also caused him to rethink his plan to do a job search using the internet which is the way to do it these days. He stated that this led him to the conclusion that he needed to hire a lawyer to have this restriction removed and it took him about a year to get that done.

[23] The claimant stated that he was with a group of friends and he mentioned that he got his restrictions relaxed and he joked that he could now file his income tax return when one of his friends stated that he should get back in touch with EI. He stated that it had taken so long that he totally forgot about the EI thing. He stated that he went back to the EI process and filed out the application, he then went to a Service Canada Centre to confirm that he had done everything correctly and at that time, the person he spoke to confirmed to him that the electronic application was indeed the only way that you can apply for EI.

[24] The claimant stated that his first rejection was due to professional misconduct. He stated that he informed this person that there was no misconduct and he could fax a letter immediately to prove it. The Commission refused to provide a fax number and he was told that the only way to proceed was to appeal. He stated that the Commission explained that because she did not already have the letter proving there was no misconduct in front of her then his claim was going to be rejected and there was no facility to revisit it once she did have the letter. He stated that the same day, he went to Service Canada and filed an appeal, submitted the letter and again had a Service Canada representative look at his application to ensure he had done everything correctly. He stated that he spoke with the very same representative who assured him that he could only file electronically but this time she stated that you could in fact, file a paper application.

[25] The claimant stated that he returned to Service Canada again and this time another Service Canada representative looked at his file and informed him that the reason he was denied EI benefits was not the same as what was told to him over the phone; this time he was rejected because he had delayed too long before filing which is not misconduct. He stated that his appeal that he had already submitted was going to fail because he was not arguing the right issue. The claimant stated that his next rejection was that he did not use the paper application. He informed the Commission that he could not do the paper application because this would be the same as having someone access the internet on his behalf but the Commission’s response was that they could process his application without using a single computer therefore his reasons for delay were invalid.

[26] The claimant confirmed that his computer restrictions were imposed before he lost his employment stating that he lost his job a couple of days later. He further confirmed that his recognizance order allowed him to use a computer for work or work purposes however, he stated that his parole officer’s interpretation took it to another level stating that he could not be in the same room as a computer and could not have someone access a computer on his behalf. He added that he was informed that if he violates his parole he will go to jail immediately and the parole officer had the power to do that. He stated that he was concerned and scared to go to the library because they have computers or to go to the grocery store because the point of sale is connected to the internet; an ATM is connected to the internet and technically he had no choice but to violate his parole on a regular basis. The claimant stated that he had to have this restriction relaxed and his not being able to file for EI benefits was so far down the list of what was unreasonable that it had not even dawned on him to file for EI benefits immediately after he was successful in having his restrictions relaxed.

[27] The claimant confirmed that his computer restrictions were lifted on May 8, 2015 and he further confirmed that he was informed of this on the same day. He stated that there was a delay between the restriction being relaxed and his filing the application for EI benefits because it was gone from his brain, he simply forgot and it was not until he was out with his friends and he was reminded to get back to EI.

Submissions

[28] The claimant submitted that:

1. The insurable hours’ decision is based on the erroneous rejection of good cause to apply late claim and should be reconsidered in light of the change made to his restrictions (Page GD3-25).
2. Once he had the restrictions removed, he could apply for EI benefits online which he did (Page GD3-26).
3. He was relying on the messaging on the Commission’s phone system telling him that he needed to apply online. He did not think to come in to his local Service Canada office as the message did not give him any other options to apply (Page GD3-28).
4. He is being denied EI benefits because he failed to intuitively know there was a paper option available that all the automated systems still continue to omit. At the time, he was specifically barred from doing anything that could be interpreted as having someone use a computer on his behalf. He was not allowed to initiate any process that would require someone to enter the contents of his application into the computer system for processing and tracking. He had no alternative but to engage a lawyer to remove these restrictions and thought it was reasonable to delay his EI application until he was able (Page GD2-2).
5. The paper form was not available to him because he was prohibited from having someone else use a computer on his behalf. The onus was on him to enforce the restrictions and not on others. Therefore, the Commission would have had to use the computer in order to process his claim and he believed it was unreasonable for him to expect the Commission to deal with him without using a computer.
6. His friend reminded him to get back to doing EI and he had been so concerned about being arrested for doing his grocery shopping and other routine things that he totally forgot about EI however, once reminded, he filed for EI immediately.

[29] The Commission submitted that:

Antedate

1. The claimant would qualify at the earlier date and in order to demonstrate good cause, it is not necessary for a claimant to show that there were circumstances over which he had no control and which prevented him from making a claim at an earlier date. The correct test is whether the claimant can demonstrate that he did what a reasonable and prudent person would have done in the same circumstances (Page GD4-4).
2. The claimant did not act like a “reasonable person” in his situation would have done to verify his rights and obligations under the EI Act. The Commission argued that the situation the claimant found himself in is not unique; that being prohibited from the use of the internet. Specifically, it is true the phone system used by the claimant does advise claimants they must apply online and if they do not have access to the internet they are told to visit the closest Service Canada Centre so they can apply online. However, the Commission argued that the phone system also provides the option to speak to an agent and considering the fact the claimant knew he was forbidden the use of internet access, the Commission finds that a reasonable person, in the same situation, would have chosen the option to talk to a Service Canada agent. If the claimant had done this he would have been provided with the alternative method of completing a paper application for EI benefits. In this case the claimant did not utilize the option to speak to an agent even though it was available to him (Page GD4-4).
3. Shortly after he stopped working the claimant made the initial call to enquire how to apply for benefits, he did not listen to all the options available. The Commission finds that in his situation, learning that he must file online and knowing this was not an option for him, it would have been reasonable that he speak with an agent and enquire about other options, thus ensuring he had protected his rights and met his obligations. The claimant still had a duty to enquire about his rights and obligations, and steps should have been taken to protect his claim. His failure to do so does not establish good cause for an antedate (Page GD4-4).
4. The claimant did not have good cause for his delay in filing an application for employment insurance benefits because he did not explore the option presented to him on the phone system, namely to speak with an agent and enquire about alternative methods of filing an application for benefits (Page GD4-5).

Benefit Period Not Established

5. The claimant was not a new entrant or re-entrant because in accordance with subsection 7(4) of the EI Act he had at least 490 hours of labour force attachment in the 52 weeks preceding the qualifying period. Therefore the claimant needed the number of insured hours specified in paragraph 7(2)(b) of the EI Act (Page GD4-5).
6. According to the Table in subsection 7(2) of the EI Act, the minimum requirement for the claimant to qualify to receive employment insurance benefits was 700 hours based on the rate of unemployment of 5.5% in the region where he resided. However, the evidence shows that the claimant had not accumulated any hours of insurable employment in his qualifying period. Consequently, the Commission maintains that the claimant failed to demonstrate that he qualified to receive EI benefits pursuant to subsection 7(2) of the EI Act (Page GD4-5).
7. The claimant failed to demonstrate he met the minimum requirements to qualify for benefits since it has been determined he did not have any insurable hours in his qualifying period whereas he was required to meet the minimum requirement of 700 hours (Page GD4-6).

Analysis

Antedate

[30] The antedating of claims is permissible under subsection 10(4) of the EI Act in circumstances where good cause for the delay in applying for benefits is established. To establish good cause, the jurisprudence of this Court requires that a claimant “be 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” (Canada (Attorney General) v. Albrecht, A-172-85).

[31] It is also settled law that a claimant has an obligation to take “reasonably prompt steps” to determine entitlement to benefits and to ensure his rights and obligations under the EI Act (Canada (Attorney General) v. Carry, 2005 FCA 367).

[32] 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 (Canada (Attorney General) v. Brace, 2008 FCA 118).

[33] Good cause must be shown throughout the entire period for which the antedate is required (Canada (Attorney General) v. Chalk, 2010 FCA 243).

[34] The burden of proof rests on the claimant (Canada (Attorney General) v. Kaler, 2011 FCA 266).

[35] The Commission determined that the claimant did have enough hours to qualify for EI benefits at the earlier date therefore, the issue before the Tribunal is whether the claimant had good cause for the delay in filing his initial claim for EI benefits.

[36] The Commission stated that it is not necessary for a claimant to show that there were circumstances over which he had no control and which prevented him from making a claim at an earlier date. The Tribunal does not entirely agree. In the FCA decision Canada (Attorney General) v. Gauthier, A-1789-83, the Court stated that “At the very least, in our view, good cause must also include circumstances in which it is reasonable for a claimant consciously to delay making a claim. The courts should not impose artificial impediments to a laudable restraint on the part of a claimant who reasonably delays making a claim for benefits.”

[37] In this case, the claimant’s parole officer interpreted his recognizance restrictions to mean that he could not be in the same room as a working computer and he was not to have someone use a computer on his behalf. The claimant was fearful that if he had someone complete his EI application on his behalf, including a Commission representative, his parole officer would conclude that he had violated his recognizance order and he would be immediately sent to jail; the claimant sought to have the restrictions relaxed. The Tribunal considers this good cause to consciously delay making his claim for EI benefits as the claimant felt it necessary to have the recognizance restrictions relaxed before applying for EI benefits online.

[38] Furthermore, a claimant ought to be 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 EI Act. The Commission agreed that the claimant contacted the EI information telephone line shortly after he became unemployed and further agreed that the phone system does advise claimants that they must apply online or to visit a Service Canada Centre where they can apply online. The Tribunal finds that the claimant did take reasonably prompt steps to inform himself of his rights and obligations but he felt that he was prevented from applying for EI benefits because the only options presented to him were to apply online and he was informed that he was not to be in a room with a working computer and he was not to have someone use a computer on his behalf. As each case must be judged based on its own facts, the Tribunal is satisfied that the claimant had done what a reasonable and prudent person would have done in a similar situation; he acted to have his restrictions relaxed.

[39] The Commission further argued that the claimant did not listen to all the options available and therefore did not speak to an agent to determine if a paper option was available. However, the script provided by the Commission does not provide an option to speak to an agent; it is only the Commission’s transcript of the script that stated that that option was available. Furthermore, according to the claimant’s parole officer, he was told that having someone access a computer on his behalf was not allowed and as the claimant testified, the onus was his to ensure that he fulfilled the restrictions placed upon him by a Court. The Tribunal accepts that it is unreasonable that the claimant submit a paper application for EI benefits and expect that the Commission will process his claim without using a computer. Therefore, the Tribunal is satisfied that the claimant had good cause for the delay in making his application for EI benefits from May 29, 2014, when he became unemployed to May 8, 2015, when his recognizance restrictions were relaxed.

[40] However, the claimant testified that he was aware on May 8, 2015 that his restrictions had been relaxed but he did not apply for EI benefits until June 2, 2015, a period of just over three weeks. Section 10(4) of the EI Act states that the claimant must show 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. The claimant admitted that there was a delay in filing his claim once his restrictions were relaxed stating that he had so many other things that needed to be done and so much time had passed that he had simply forgotten about filing for EI benefits. He stated that it was not until he was reminded about filing for EI benefits by a friend that he submitted his application. The Tribunal does not accept this explanation to constitute good cause. As was mentioned in Brace, the obligation and duty to promptly file a claim is seen as very demanding and strict. The claimant had been unemployed and without income for a year and admittedly had been restricted in his job search efforts. While it is understandable that he had things to do, protecting his claim for EI benefits should have been at the top of his list as he had been explained that delaying in filing his claim for regular benefits beyond four weeks after his last day of work may cause a loss of benefits.

[41] For these reasons, the Tribunal concludes that the claimant has not proven good cause for the delay in filling his claim for EI benefits and accordingly is not entitled to have his claim antedated. The Commission is appropriate in denying the antedate request pursuant to subsection 10(4) of the EI Act.

Benefit Period Not Established

[42] In order to establish a benefit period, the claimant must have accumulated the required number of insurable hours of employment in the qualifying period.

[43] The claimant did not apply for EI benefits immediately following his separation of employment because he was restricted from using a computer or any device capable of accessing the internet. According to his ROE, his last day of work was May 29, 2014 but he did not file for EI benefits until June 2, 2015. The Tribunal accepts that the claimant did not have any other employment during this time period. The Tribunal further accepts that this delay resulted in the claimant having 0 hours of insurable employment in his qualifying period.

[44] The Tribunal finds that the claimant was not a new entrant or re-entrant into the workforce pursuant of section 7(4) of the EI Act because he had at least 490 hours of labour force attachment in the 52 weeks preceding the qualifying period and therefore required 700 hours of insurable employment in order to qualify for EI benefits.

[45] In the Federal Court of Appeal decision Canada (Attorney General) v. Lévesque, 2001 FCA 304, Justice Desjardins stated that:

“She was short one hour of work in order to fulfill the conditions required by that section if she was to be eligible for unemployment benefits. This requirement of the Act does not allow any discrepancy and provides no discretion. Neither the board of referees nor the umpire could remove the defect from the claim.”

[46] The Tribunal finds that the claimant does not have the required number of insurable hours of employment in order to qualify for EI benefits. The requirements of the EI Act are clear and do not provide any exceptions or allow for any discretion. The claimant required 700 hours of insurable employment in his qualifying period but he did not have any hours.

[47] For these reasons, the Tribunal concludes that the claimant has not proven that he qualified for EI benefits pursuant to subsection 7(2) of the EI Act.

Conclusion

[48] The appeal is dismissed.