Employment Insurance (EI)

Reasons and decision

Persons in attendance

N. P., the claimant, attended the hearing via teleconference.

Introduction

[1] The claimant became unemployed on April 16, 2015. He filed for Employment Insurance (EI) benefits on March 15, 2016. The Canada Employment Insurance Commission (Commission) denied the claim because the claimant did not have sufficient insurable hours of employment in order to qualify for EI benefits. The Commission further determined that the claimant had not proven good cause for the delay in filing a claim for EI benefits. The claimant sought reconsideration of the Commission’s decision, which the Commission maintained in their letter dated May 19, 2016. 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.

Evidence

Information from the docket

[4] The claimant applied for regular EI benefits on March 15, 2016 stating that his last day of work was April 16, 2015 and he would be returning to work for this employer but his return to work date was unknown. The claimant confirmed that he did not have any additional periods of employment in the last 52 weeks and in the last two years he was not in receipt of Workers’ Compensation Benefits, 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 to which he was referred by a designated authority, in jail or in receipt of a payment from the Wage Earner Protection Program. The claimant further confirmed that he was not related to any owner or part-owner of a business for which he worked but stated that he was a shareholder owning more than 40% of the shares of a corporation for which he worked and he was the owner or part- owner in a business for which he worked. The claimant stated that he was not self-employed (Pages GD3-3 to GD3-16).

[5] The employer submitted a Record of Employment (ROE) dated March 14, 2016 indicating that the claimant began working as an apprentice crane operator on June 16, 2014 and he was no longer working due to a shortage of work on April 16, 2015 accumulating 1842.5 hours of insurable employment (Page GD3-17).

[6] The claimant was contacted by the Commission and he stated that he started his self- employment 32 years ago and it closed as of January 31, 2016. The claimant stated that he worked full-time as a crane operator in 2014 and 2015 and from May 9 to June 17, 2016 he attended apprenticeship training. The claimant stated that his intention is to find full-time work and he has been seeking employment (page GD3-18).

[7] The Commission provided the Search for EI Rate Information which indicates that the claimant lives in Region 49 with an 8.3% unemployment rate requiring that the claimant accumulate 595 hours of insurable employment (Page GD3-22).

[8] The Commission provided the worksheet – Allocation of Insured and/or Prescribed Hours showing that the claimant had accumulated 201 insurable hours of employment before the cut-off date for the qualifying period. The worksheet further showed that the claimant was not a new entrant or re-entrant due to his labour force attachment of 1643 insurable hours (Pages GD3- 23 to GD3-27).

[9] The Commission sent a letter dated April 7, 2016 informing the claimant that he had 201 hours of insurable employment between March 15, 2015 and March 12, 2016 however he needed 595 hours of insurable employment to qualify for EI benefits (Page GD3-28).

[10] Following the claimant’s Request for Reconsideration, he was contacted by the Commission. The claimant stated that he did not apply right away for EI benefits because he was self-sufficient and he had a self-employment business going as well. He stated that he had never been on EI benefits before and he thought he could “bank” the hours until he needed them. The claimant stated that he planned on going back to school to get his crane operator certificate refreshed so he figured he would wait until then adding that he did not realize that his EI benefits were “ticking away” the whole time. The claimant confirmed that during the qualifying period he did not have any full calendar weeks where he was unable to work due to illness or injury, he was in jail or he was taking a course that he was referred to by the Commission. The claimant further confirmed that there was no other employment in the qualifying period and that his self- employment closed down in January 2016 and after this date he just waited to apply until he needed the money (Page GD3-32).

Testimony at the hearing

[11] The claimant testified at the hearing that he has never applied for EI benefits in 40 years. He stated that he was self-employed but the business ceased to exist. He stated that he was running cranes for a period but when he got laid off he was working on his apprenticeship. He stated that he saved money from the period that he worked and he thought it was in his best interest to save his EI benefits to when he entered apprenticeship training; his training was out of town and there would be considerable expenses and he felt that this would be the best use of his EI benefits. He stated that he went to school and applied for EI benefits and at that point, he learned that he should have applied for EI benefits immediately after becoming unemployed.

[12] The claimant stated that it was an oversight on his part as he was not familiar with the procedure but he paid into the EI system, the hours were there and he made the decision that he would apply when the money would best suit his needs. He stated that when he applied, he learned that he had no benefits left because he had not applied earlier. He believes that he met all the requirements, he paid in to have these benefits and he is dissatisfied with the decision that has been made.

[13] The claimant stated that to change his line of employment came with considerable cost to himself and the EI benefits were planned to financially assist with the transition. He stated that his lack of knowledge of the EI Act and his honesty that he did not need the money right then has left him without the benefits.

[14] The claimant confirmed he did not have any other employment for the time period after he was laid off and the time he applied. He stated that he was organizing his apprenticeship and driver training and he was totally involved in the winding down of his self-employment; he had no income for that time period.

[15] The claimant confirmed that he would have to support himself while he was on apprenticeship training because attending school outside of his hometown came with considerable expenses and this was his reasoning for saving his EI benefits, to help during this time period. The claimant confirmed that he did not contact Service Canada in person, via telephone or visit their website because he assumed that he had the proper documentation from his employer and he would apply for EI benefits when he thought the money would best serve him.

[16] The claimant confirmed that the ROE is dated one day before he applied for EI benefits explaining that he did not ask for it until he was ready to apply. He stated that he thought he would return to work but the economy did not accommodate that. He stated that he hopes to go back and work for this employer when they require him.

[17] The claimant stated that he did not have any employment guidance from his employer telling him that he needed to apply for EI benefits right away nor did he have any guidance from anyone and not having ever applied for EI benefits, it was his ignorance that he did not know to apply right away.

Submissions

[18] The claimant submitted that:

1. He believes that he has worked the required hours and that the ROE was sent to Service Canada on March 15, 2016 (Page GD3-29).
2. Between the period of April 16, 2015 and March 15, 2016, he believed that he would be returning to work at some point and that the economic downturn was just another dip. He did not apply for EI benefits immediately after being laid off as he continued to be hopeful for a turn around and without employment guidance, he was not aware that EI applications were time sensitive and that his reluctance to apply would be viewed negatively (Page GD2-3).
3. He thought it wise to use this slow time to independently work on challenging his first year crane apprenticeship and he did so successfully. He also continued working towards a Class 1 driver’s license also required for crane work. He is presently at school completing his third and final year of his crane ticket. He is being proactive in trying to make a successful career change for himself (Page GD2-3).
4. He did not research the EI Act and was of the belief that he had worked, he paid and he was going to use the benefits when it suited his retraining. He thought wrong but the whole idea was that it would help him finance his retraining for the rest of his working career; it was an error on his part.

[19] The Commission submitted that:

Antedate

1. 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. It is a fact that information on when to file a claim is readily available. The claimant was issued a non-electronic ROE in paper form. The information on the back of a ROE advises him to file within four weeks or he could lose benefits. Similar information is also available on the Service Canada Centre website, after one click on the link for “Applying for Employment Insurance.” The Commission holds that the claimant “did not have employment guidance” because he did not seek it out. The claimant knew he was delaying in the filing of his EI claim and he did not inquire as to the filing requirements, such as a reasonable or prudent person might have done in his situation. The claimant could have also called or visited his local office as well and informed himself of the filing requirements given that he had made the decision to postpone the timely application for benefits (Page GD4-3).
2. A desire to attend work or waiting for an opportunity of work should the economy improve does not provide good cause for a delay in filing a claim even if one makes the laudable decision to rely on their own resources rather than request benefits right away (Page GD4-4).

Benefit period not established

3. The claimant’s qualifying period was established from March 15, 2015 to March 12, 2016 pursuant to paragraph 8(1)(a) of the EI Act. The claimant had not provided evidence of any other ROEs and did not meet the grounds for extension of the qualifying period under section 8(2) of the EI Act.
4. The claimant was not a new entrant or re-entrant because in accordance with subsection 7(4) of the EI Act he had more than 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.
5. According to the Table in subsection 7(2) of the EI Act, the minimum requirement for the claimant to qualify to receive EI benefits was 595 hours based on the rate of unemployment of 8.3% in the region where he resided. However, the evidence shows that the claimant had accumulated only 201 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).
6. The determination of insured hours by the Commission is not a discretionary decision. Neither the Commission nor the SST has the jurisdiction to ignore the legislation on this issue or amend its requirements regardless of the claimant’s personal circumstances, including those cases where the claimant was unable to work the required minimum number of insured hours for reasons beyond his control (Page GD4-5).

Analysis

[20] The relevant legislative provisions are reproduced in the Annex to this decision.

Antedate

[21] 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).

[22] 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).

[23] 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).

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

[25] Ignorance of the law, even if coupled with good faith, is not sufficient to establish good cause (Canada (Attorney General) v. Somwaru, 2010 FCA 336).

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

[27] In this case, subsection 10(4) of the EI Act requires that the claimant be able to show that he qualified at the earlier date. While the Commission made no reference to whether the claimant qualified at the earlier date, the claimant accumulated 1842.5 hours of insurable employment and this would have allowed the claimant to qualify under any circumstances pursuant to section 7 or 7.1 of the EI Act. Therefore, the Tribunal is satisfied that the claimant qualified for EI benefits at the earlier date and the question before the Tribunal is whether the claimant had good cause for the delay in filing his initial claim for EI benefits.

[28] The claimant became unemployed but did not apply for EI benefits right away because he had never received EI benefits before and he was not aware that he was required to apply immediately; he decided to wait to apply for EI benefits until he was going to go to school. When the claimant went to school, he applied for EI benefits and learned that he was required to apply soon after becoming unemployed. The Tribunal accepts the claimant’s statements that he did not try to contact the Commission to get information concerning EI benefits until he was ready to apply for EI benefits in March 2016; 11 months following his separation from employment.

[29] The Federal Court of Appeal (FCA) decision Howard v. Canada (Attorney General), 2011 FCA 116, ruled that a delay in applying for EI benefits based on the expectation of finding employment or a good faith reliance on one’s own resources does not constitute “good cause” for the purposes of subsection 10(4) of the EI Act.

[30] The claimant argued that while he did apply late for EI benefits, he believes that he worked the required hours and he paid for these benefits. The Tribunal is reminded of the FCA decision Shebib v. Canada (Attorney General), 2003 FCA 88:

“Regrettably, it is often those who have little or no experience with employment insurance benefits and who have the best of intentions who get caught out in the maze of statutory and regulatory provisions that Parliament and the Governor in Council seem to consider necessary to prevent abuse of the employment insurance system. I accept that the applicant has acted in good faith and with the best of intentions. Unfortunately, on the present state of the law, that does not constitute good cause for entitling him to an antedating of his claim for employment insurance benefits.”

[31] Further, the FCA decision Canada (Attorney General) v. Beaudin, 2005 FCA 123 explained:

“The justification given by the respondent essentially consists of the fact that he was unfamiliar with the employment insurance system and that is why he filed his initial claim almost one year after his dismissal…

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." 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.

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. 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.”

[32] The Tribunal finds that the claimant has not proven good cause for the delay in filing his initial claim for EI benefits. While the Tribunal recognizes that the claimant was unfamiliar with the EI system, the claimant did not make efforts to contact the Commission or to learn the rules and regulations; therefore it cannot be said that the claimant did what a reasonable and prudent person would have done in his situation to satisfy himself as to his rights and obligations under the EI Act.

[33] The claimant argued that he believed he would be returning to work but due to the economic downturn, that did not happen. He explained that he met the requirements of the EI Act, he paid the premiums and he was going to use the EI benefits when it suited his retraining. Unfortunately, simply paying in to the EI program is not a guarantee that EI benefits will be payable. Claimants are still required to apply promptly for EI benefits and to satisfy the necessary conditions of eligibility.

[34] The Tribunal respects the claimant’s decision to plan his career transition using his own resources immediately and anticipating the need for EI benefits later; however, the claimant made incorrect assumptions and did not make any effort to verify his assumptions or to protect his EI benefits. While the Tribunal recognizes that the claimant was not provided with guidance that he should apply right away, the case law is clear; failing to file a claim for EI benefits because of ignorance of law and good faith is not considered good cause under the law and a claimant must take steps to inform themselves of their rights and obligations under the EI Act.

[35] 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

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

[37] In the Federal Court of Appeal (FCA) 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 [now the Tribunal] nor the umpire could remove the defect from the claim.”

[38] The claimant made the decision to delay applying for EI benefits until he was ready to attend apprenticeship training and when he did apply for EI benefits, he had only 201 hours of insurable employment in his qualifying period from March 15, 2015 and March 12, 2016. The Tribunal accepts that the claimant lived in an economic region with an unemployment rate at 8.3% requiring 595 hours of insurable employment to qualify for EI benefits. From this, the Tribunal finds that the claimant did not accumulate sufficient hours of insurable employment in order to qualify for EI benefits.

[39] Therefore, the Tribunal concludes that the claimant does not have sufficient hours of insured employment to establish a claim for EI benefits pursuant to subsection 7(2) of the EI Act.

Conclusion

[40] The appeal is dismissed.

Annex

The law

1. 7 (1) Unemployment benefits are payable as provided in this Part to an insured person who qualifies to receive them.
2. (2) An insured person 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 set out in the following table in relation to the regional rate of unemployment that applies to the person.

Table

Regional rate of unemployment	Required number of hours of insurable employment in qualifying period
6% and under	700
more than 6% but not more than 7%	665
more than 7% but not more than 8%	630
more than 8% but not more than 9%	595
more than 9% but not more than 10%	560
more than 10% but not more than 11%	525
more than 11% but not more than 12%	490
more than 12% but not more than 13%	455
more than 13%	420

1. 8 (1) Subject to subsections (2) to (7), the qualifying period of an insured person is the shorter of
   1. (a) the 52-week period immediately before the beginning of a benefit period under subsection 10(1), and
   2. (b) the period that begins on the first day of an immediately preceding benefit period and ends with the end of the week before the beginning of a benefit period under subsection 10(1).
2. (2) A qualifying period mentioned in paragraph (1)(a) is extended by the aggregate of any weeks during the qualifying period for which the person proves, in such manner as the Commission may direct, that throughout the week the person was not employed in insurable employment because the person was
   1. (a) incapable of work because of a prescribed illness, injury, quarantine or pregnancy;
   2. (b) confined in a jail, penitentiary or other similar institution and was not found guilty of the offence for which the person was being held or any other offence arising out of the same transaction;
   3. (c) receiving assistance under employment benefits; or
   4. (d) receiving payments under a provincial law on the basis of having ceased to work because continuing to work would have resulted in danger to the person, her unborn child or a child whom she was breast-feeding.
3. 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.