Employment Insurance (EI)

Decision

[1] The appeal is allowed. I find that the Appellant’s initial claim for Employment Insurance (EI) benefits can be antedated to February 24, 2019.^{Footnote 1} The Appellant has shown that he had good cause for the delay in claiming benefits. This means that his claim for benefits can be treated as though it was made earlier.

Overview

[2] From October 1, 2012, to February 22, 2019,^{Footnote 2} the Appellant worked as a credit analyst for the employer X (employer).

[3] On December 21, 2020, he made an initial claim for EI benefits (regular benefits).^{Footnote 3}

[4] On January 22, 2021, the Canada Employment Insurance Commission (Commission) informed him that he was not entitled to benefits because he needed 420 hours of insurable employment in the period from December 22, 2019, to December 19, 2020, when he had no hours (0 hours) in that period.^{Footnote 4}

[5] On January 22, 2021, he made an antedate request to the Commission to have his December 21, 2019, claim for benefits start on February 25, 2019.^{Footnote 5}

[6] On March 25, 2021, the Commission informed him that the EI benefits established for his claim could not start from February 24, 2019, because he had failed to show that he had good cause for the delay in claiming benefits for the period from February 24, 2019, to December 22, 2020.^{Footnote 6}

[7] On April 23, 2021, after a request for reconsideration, the Commission informed him that it was upholding the March 25, 2021, decision.^{Footnote 7}

[8] The Appellant explains that, after he stopped working on February 22, 2019, he checked Service Canada’s website for information about the severance pay the employer had paid him and how it would affect a claim for benefits. At the end of February 2019, he contacted the Commission because he had not found the answer to his question. The Appellant says that, after explaining his situation to someone from the Commission, they told him that it would be very surprising if he could be entitled to benefits. The Appellant says this person suggested that he wait to apply for benefits, without telling him that there was a deadline to meet. So, the Appellant did not apply for benefits at that time, but rather on December 21, 2020, when he wanted to re-enter the labour market. The Appellant says he did what the Commission suggested to him. He argues that he did not apply for benefits within the deadline because the Commission had misinformed him. On May 19, 2021, the Appellant challenged the Commission’s reconsideration decision before the Tribunal. That decision is now being appealed to the Tribunal.

Preliminary matters

[9] At the beginning of the hearing, the Appellant’s representative said she was withdrawing the appeal on the issue of whether the Appellant had the required number of hours of insurable employment in the period from December 22, 2019, to December 19, 2020, to establish an EI benefit period.^{Footnote 8} As a result, I will not make a decision on this issue.

Issues

[10] I have to determine whether the Appellant’s initial claim for benefits can be antedated to February 24, 2019.^{Footnote 9}

[11] To do so, I must answer the following questions:

• Has the Appellant proven that he qualified for EI benefits on an earlier day than the day the claim was made?
• Did the Appellant have good cause for the delay in claiming benefits, therefore justifying his antedate request?

Analysis

[12] Antedating a claim for EI benefits allows a late claim for benefits to be considered as having been made on an earlier day than the day it was actually made.

[13] Antedating an initial claim for benefits relies on the following two conditions:

1. The claimant has to prove that they qualified for EI benefits on an earlier day than the day the claim was made.
2. The claimant has to prove that there was good cause for the delay throughout the period beginning on the earlier day and ending on the day the claim was made.^{Footnote 10}

[14] Good cause is an explanation for the delay that is acceptable under the Employment Insurance Act (Act). Showing good cause means that a claim for benefits can be treated as though it was made earlier.

[15] The Federal Court of Appeal (Court) has established that a claimant who does not make their claim on time must show that they had good cause for the delay in making their claim and that they acted as a reasonable person in the same situation would have acted.^{Footnote 11}

[16] According to the Court, having good cause means doing what a “reasonable person” would have done to satisfy themselves as to their rights and obligations under the Act.^{Footnote 12}

Issue 1: Has the Appellant proven that he qualified for EI benefits on an earlier day than the day the claim was made?

[17] I find that the evidence on file shows that the Appellant qualified for EI benefits on an earlier day than the day the claim was made (on December 21, 2020).

[18] In its arguments, the Commission explains that the Appellant had enough hours of insurable employment to establish an EI benefit period effective February 24, 2019.^{Footnote 13}

[19] The Commission specifies that the total number of hours of insurable employment that the Appellant accumulated during his qualifying period, established from February 25, 2018, to February 23, 2019, is 1,820, when he needed 700 hours to be entitled to benefits.^{Footnote 14}

[20] Based on the Commission’s analysis, the Appellant’s employment period, from October 1, 2012, to February 22, 2019,^{Footnote 15} shows that he qualifies for EI benefits on an earlier day than the day the claim was made (on December 21, 2020).

[21] I now have to determine whether the Appellant had good cause for the delay in claiming benefits, therefore justifying his antedate request.

Issue 2: Did the Appellant have good cause for the delay in claiming benefits, therefore justifying his antedate request?

[22] I find that the Appellant’s reasons for not applying for benefits within the deadline constitute good cause for such a delay, under the Act.

[23] I find the Appellant’s testimony credible. He gives a complete and detailed picture of the circumstances that caused him to apply for benefits late. His testimony is accurate and without contradictions. He gives detailed explanations about the content of his conversation with someone from the Commission at the end of February 2019, during which this person explained to him that it would be very surprising if he could receive benefits and suggested that he wait to apply for benefits.

[24] The Appellant argues that he had good cause for the delay in claiming benefits. His testimony and statements to the Commission indicate the following:

1. The Appellant explains that he worked for about 40 years for two different companies and has never received benefits in the past. He does not know how EI works.^{Footnote 16}
2. After he lost his job on February 22, 2019, the Appellant was [translation] “in shock.”^{Footnote 17} He first checked Service Canada’s website to find out how the severance pay^{Footnote 18} the employer paid him after it terminated his employment could affect a claim for benefits. In his case, the amount of this severance pay—that is, more than $100,000—represents about one and a half years (17 or 18 months) of salary.^{Footnote 19}
3. As for the Commission’s argument that, had the Appellant checked the section “EI regular benefits: Overview” on its website, he would have read that he had to apply for benefits as soon as possible after he stopped working,^{Footnote 20} he explains that he did not click on the link because he was primarily looking for information about severance pay. He wanted to know how this severance would affect his claim for benefits. The Appellant explains that, despite his research on Service Canada’s website, he could not find the information he was looking for.
4. At the end of February 2019, the Appellant contacted the Commission’s call centre. During his call, he explained to someone from the Commission (an agent) that his job had ended, that he had received severance pay from his employer, and that he was a bit confused about a claim for benefits. The person from the Commission told him that it would be [translation] “very surprising” if he could receive benefits,^{Footnote 21} or that he would get [translation] “very little,”^{Footnote 22} given the severance pay he had received.^{Footnote 23} The person from the Commission suggested that he wait to apply for benefits. They did not advise him to apply for benefits immediately or tell him how long he should wait before applying.^{Footnote 24}
5. The Appellant figured he was not entitled to benefits because of the severance pay he had received.^{Footnote 25} He also believed he could wait to apply for benefits.
6. The Appellant says that the person from the Commission misinformed him. They should have told him that he could still make a claim for benefits.^{Footnote 26} According to the Appellant, the person he talked to from the Commission is an [translation] “expert” in EI. They know the rules. The Appellant points out that, if he was speaking with someone who knows the Act, that person should have been able to tell him that he had to make his claim for benefits as early as possible or that he had a specific amount of time to do so. No one told him he had to apply for benefits quickly.
7. The Appellant did not apply for benefits after the period of about one and a half years of salary that his severance pay represented.^{Footnote 27} He explains that he was not available for work as of June 2020—that is, more than a year after his job ended. The Appellant was a caregiver to his mother. He also took care of her move to a private seniors’ residence (PSR). He mentions that the COVID-19 pandemic^{Footnote 28} also complicated things for him, whether caring for his mother or returning to the labour market.^{Footnote 29}
8. Between February 24, 2019, and December 20, 2020, the Appellant made no attempts to contact the Commission other than at the end of February 2019 for information about his claim for benefits.
9. The Appellant applied for benefits on December 21, 2020, because he wanted to re-enter the labour market. According to him, when he was ready to do so, it was the best time to apply for benefits. He did not think he had missed the deadline.^{Footnote 30}
10. When he received a letter from the Commission, dated December 21, 2020, giving him an access code to fill out his claimant reports, the Appellant figured that his claim for benefits had been accepted. However, when he tried to fill out his reports, it did not work. He then contacted the Commission several times to correct his situation. On February 5, 2021, a Commission agent explained to him that he could make an antedate request. However, the Appellant was unable to receive benefits.^{Footnote 31}
11. The Appellant argues that he did everything he was told to do for his claim for benefits and to follow up with the Commission.

[25] The representative makes the following arguments:

1. The Appellant did what a reasonable and prudent person would have done to satisfy himself as to his rights and obligations under the Act.
2. It was not due to ignorance of the Act that the Appellant applied for benefits late, but because of misinformation that he received from a Commission agent and because of the lack of information on Service Canada’s website. The Appellant took reasonable steps to get information about his EI benefits.
3. Even though the Commission says it is [translation] “far-fetched” to think that one of its agents told a claimant to wait to file their claim, since the basis for establishing an EI claim is filing a claim,^{Footnote 32} it is not unlikely. Several antedate files concern incorrect information given by Commission agents.
4. Even though the Commission indicates that the Appellant alleges that he did not think he was entitled to benefits and that a reasonable person would not rely solely on their assumptions,^{Footnote 33} it was not just assumptions in this case. The conversation the Commission refers to on this point^{Footnote 34} must be put in context. So, the Appellant did ask about his rights and obligations.
5. The Commission did not apply the right legal criteria for an antedate issue when it said it understood that the Appellant was going through a difficult time but that there were no circumstances beyond his control that prevented him from applying for benefits.^{Footnote 35} In an antedate case, the issue is not proving that there were circumstances beyond a claimant’s control.
6. The Court decision that the Commission refers to in its arguments^{Footnote 36} does not support its position. This decision stresses the importance of explaining how a person did or did not do what a reasonable person in the same situation would have done.
7. The Court^{Footnote 37} confirmed an umpire decision,^{Footnote 38} in which the Commission’s appeal was dismissed and where the claimant applied for benefits late. In this case, the claimant had applied late because he knew he could not meet the EI requirement that he had to be available for work. In the umpire decision,^{Footnote 39} it was determined that the Board of Referees had applied the relevant legislative provisions in finding that the claimant had done what a reasonable person would have done throughout the entire period of the delay.^{Footnote 40}
8. The Court^{Footnote 41} confirmed an umpire decision,^{Footnote 42} in which the Commission’s appeal challenging a Board of Referees decision to grant an antedate to a claimant was dismissed. In the umpire decision,^{Footnote 43} it was determined that the Board of Referees decision was not unreasonable in finding that the claimant had acted as a reasonable person would have acted in the same personal situation (death of claimant’s only sister, separation, mother diagnosed with rare form of dementia).^{Footnote 44}
9. The Court^{Footnote 45} confirmed an umpire decision,^{Footnote 46} in which the Commission’s appeal challenging a Board of Referees decision to grant an antedate to a claimant was dismissed. The umpire decision^{Footnote 47} indicated the following: “[T]he claimant’s delays were not by reason of her ignorance of the law but by reason of her belief, mistaken though it may be, that under the law she did not have sufficient insurable weeks of employment to qualify for benefits. [I]t is apparent that anyone holding such a mistaken belief, and living in a family which had never been involved in unemployment insurance claims, might be deemed to have acted reasonably by applying only when the mistake was made known. [T]he scheme of unemployment insurance should not presume that one be paranoid about would-be claimants and think that they get up every morning with all the tricks of the Act forever bubbling in their consciousness.”^{Footnote 48} In reference to this decision,^{Footnote 49} the representative stresses that the Act is complex and that it is understandable that a claimant would not ask all the questions that a Commission agent could answer. It is not a claimant’s job to make sure that the Commission agent does not forget anything and that they explain things correctly. A claimant expects a Commission agent to give them the right information and clear guidance.
10. In one of its decisions,^{Footnote 50} the Tribunal’s Appeal Division (Appeal Division) allowed the appeal of a claimant whose antedate request had been refused by the Commission. In its decision,^{Footnote 51} the Appeal Division found that the General Division, which had dismissed the claimant’s appeal, had misinterpreted the claimant’s evidence in finding that the claimant had misunderstood what Service Canada had told him about applying for benefits. In its decision,^{Footnote 52} the Appeal Division indicates the following: “The steps the Claimant took to satisfy himself as to his obligations are not documented, because they involved a series of in‑person conversations between himself and Service Canada agents […] before he filed his claim. Thus, the only available evidence of the existence and substance of these consultations/conversations are the Claimant’s statements and testimony [paragraph 37]. […] I find that [the Claimant] was not told of the importance of a timely application or that he should immediately file his application in any of his visits to Service Canada… [paragraph 54] I consider that the Claimant properly enquired about his obligations, that he relied and acted on the recommendation of an agent or agents of the Commission… [paragraph 55].^{Footnote 53}

[26] I find that, taking into account all the circumstances of his case, the Appellant has shown that he had good cause for the delay in claiming benefits.

[27] I find that the Appellant’s actions represent what a “reasonable” person in the same situation would have done.

[28] I accept the Appellant’s explanation that, at the end of February 2019, someone from the Commission gave him information indicating that they would be very surprised if he could receive benefits, given the severance pay he had received, and telling him to wait to apply for benefits.

[29] Even though the Commission argues that it is [translation] “far-fetched” to think that one of its agents told a claimant to wait to file their claim, since filing a claim is the basis for establishing a benefit period,^{Footnote 54} I find it possible that such a situation occurred.

[30] Although the Commission also indicates that no written document exists summarizing the content of the conversation between the Commission and the Appellant in February 2019,^{Footnote 55} I have no reason to question the Appellant’s testimony and statements. The Appellant has always been consistent in his testimony and statements indicating that he had contacted the Commission at the end of February 2019, after his job ended. I note that the Commission’s arguments are based on what the Appellant should have done or asked when he contacted it at that time.

[31] I accept the representative’s argument when she points out the similarities between the Appellant’s case and that of a claimant the Appeal Division refers to in one of its decisions.^{Footnote 56}

[32] In that decision, the Appeal Division, relying on the claimant’s statements and testimony because there was no other evidence available, determined that the Commission had not informed the claimant of the importance of a timely application or that he should immediately file his application.^{Footnote 57}

[33] In that decision, the Appeal Division found that the claimant had properly enquired about his obligations by acting on the recommendations that he received from the Commission.^{Footnote 58}

[34] While I am not bound by Appeal Division decisions, I find this decision to be similar to the Appellant’s case.^{Footnote 59} So, I take the same approach in assessing his case. These similarities concern, amount other things, the efforts the Appellant made with the Commission as early as February 2029 [sic] concerning his claim for benefits and the information it gave him, to show that he had good cause for the delay in claiming benefits.

[35] I find it possible that a Commission agent gave the Appellant incomplete or inaccurate information about his claim for benefits, given the severance pay he had received.

[36] I find it more likely than not that the information the Appellant received from the Commission may have led him to believe that he was not entitled to benefits or that he could wait to apply for benefits.

[37] I find that, because it was unclear, the information given to the Appellant was inaccurate.

[38] The Court tells us that good cause can be shown if the claimant’s delay is the result of incorrect information from the Commission and it is not attributable to the claimant.^{Footnote 60}

[39] The Commission also argues that the Appellant claims to have been misled by an agent but that he did not ask the agent when he should apply for benefits.^{Footnote 61} According to the Commission, a reasonable and prudent person would have asked questions to find out what to do and what their obligations were.^{Footnote 62}

[40] On this point, I find that it was not up to the Appellant to ask specific questions about the deadline to apply. I accept that, when the Appellant spoke with someone from the Commission in February 2019, they told him to wait to apply for benefits, without specifying how long he should wait.

[41] Given the Appellant’s initial efforts at the end of February 2019 to get information about his claim for benefits, I am of the view that it was up to the Commission to specify whether he could claim benefits and when to apply. I find that the Commission instead suggested to the Appellant that he would not be entitled to benefits when he was prepared to apply for benefits or to apply later.

[42] I find that, after first checking Service Canada’s website, the Appellant contacted the Commission for guidance with his claim for benefits. I am of the view that the Commission cannot hold the Appellant responsible for not asking it more questions about the process for applying.

[43] I accept the representative’s argument that a claimant expects the Commission to give them the right information and that it is not up to them to make sure the Commission did not forget anything.

[44] Even though the Commission also indicates that the Appellant did not check Service Canada’s website to learn about the process for applying for benefits,^{Footnote 63} I accept from the Appellant’s testimony that he first checked this website before contacting the Commission. His testimony clarifies his April 22, 2021, statement to the Commission, indicating that he checked Service Canada’s website before contacting it.^{Footnote 64}

[45] In his testimony, the Appellant specifies that, when he checked Service Canada’s website, he was looking for information about his severance pay and how this severance could affect the claim for benefits he wanted to make. I note that, in its arguments, the Commission itself mentions that the Appellant said he had checked its website.^{Footnote 65}

[46] Although the Commission indicates that information is provided on its website, under the section “EI regular benefits: Overview,” and that, on their reading, any reasonable and prudent person would have applied for benefits without delay after losing their job,^{Footnote 66} the fact is that the Appellant did not just visit this website. When he did not find the information he was looking for, he took the initiative of contacting the Commission after checking this website.

[47] I do not accept the Commission’s argument that the Appellant has not shown that he did what a reasonable person would have done because he believed he was not entitled to benefits and that a reasonably prudent person does not rely solely on assumptions.^{Footnote 67}

[48] On this matter, I find that the Appellant has shown that he did not rely on assumptions to delay applying for benefits. He first checked Service Canada’s website and then contacted the Commission a few days after his job ended to get information about the conditions under which he could apply for benefits. Given its inaccuracy, the information he obtained led him to believe that he would not receive benefits by applying and that he could wait to apply.

[49] I find that, based on the information he received from the Commission, the Appellant could reasonably believe that he was not entitled to benefits.

[50] The Court also tells us that, in some circumstances, ignorance of the law and good faith may constitute good cause.^{Footnote 68}

[51] I find that the Appellant’s case is also supported by an umpire decision,^{Footnote 69} and confirmed by the Court,^{Footnote 70} which the representative argues. In the umpire decision,^{Footnote 71} it was determined that, despite the mistaken belief that a claimant was not entitled to benefits, this claimant can be considered to have acted reasonably by applying only when the mistake was made known.^{Footnote 72}

[52] The Commission also argues that the Appellant waited 22 months before applying for benefits because it was at that time that he was ready to return to the labour market.^{Footnote 73}

[53] On this point, I find that the length of the Appellant’s delay in applying for benefits can be explained primarily by the information he obtained from the Commission at the end of February 2019 that it was better to wait before applying, without knowing how long this wait was to last.

[54] Given the information that he first obtained from the Commission, I also accept the Appellant’s explanation that he applied for benefits on December 21, 2020, because, before then, he was taking care of his mother and was not available for work.

[55] I find that the Appellant’s explanation to show that he acted as a reasonable person by delaying in applying for benefits because of his personable situation, since he was looking after his mother and was not available for work, are supported by umpire decisions and confirmed by the Court, which the representative argues.^{Footnote 74}

[56] I find that, when the Appellant contacted the Commission at the end of February 2019, he explained his situation to find out whether he could apply for benefits. I accept that the Appellant asked about his rights and obligations and that he acted as a reasonable and prudent person.

[57] I am of the view that all the circumstances the Appellant has raised allow me to conclude that he had good cause for the delay in claiming benefits.

[58] The Court tells us that having good cause is simply doing what a “reasonable person” would have done to satisfy themselves as to their rights and obligations under the Act.^{Footnote 75}

[59] I am of the view that the Appellant has shown that he did what a reasonable and prudent person in his situation would have done to satisfy himself as to his rights and obligations.

Conclusion

[60] I find that the Appellant has shown that he had good cause for the delay in claiming benefits.

[61] As a result, the Appellant’s claim for benefits can be antedated to February 24, 2019.

[62] The appeal is allowed.