Employment Insurance (EI)

Decision

[1] The appeal is allowed.

[2] I find that the Appellant’s claim for benefits can be treated as though it was made on September 27, 2020.

Overview

[3] The Appellant applied for benefits on December 29, 2020, even though he had stopped working on March 12, 2020. On February 9, 2021, he asked the Canada Employment Insurance Commission (Commission) to consider his September 27, 2020, claim retroactively.

[4] On July 26, 2021, the Commission found that the Appellant did not have good cause for the delay in applying for benefits between September 27, 2020, and December 29, 2020.

[5] The Appellant essentially submits that, because of the pandemic, he had difficulty contacting the Commission both by phone and Internet and that, for this reason, he could not properly initiate his claim without a code that was required for the next steps. I have to decide whether the Appellant’s claim for benefits should be considered as though it was made on September 27, 2020.

Issue

[6] Did the Appellant have good cause for the delay?

Analysis

Did the Appellant have good cause for the delay?

[7] A benefit period may be established at an earlier date when two conditions are met: The claimant shows that they qualified for benefits on the earlier day, and there was good cause for the delay during the period beginning on the earlier day and ending on the day the claim was made.

[8] The Appellant’s entitlement to benefits is not in dispute, and I note that a benefit period was established in his favour on December 27, 2020.

[9] To get his claim antedated, the Appellant has to prove that he had good cause for the delay during the entire period of the delay.^{Footnote 1} He has to prove this on a balance of probabilities. This means that he has to show that it is more likely than not that he had good cause for the delay.

[10] The Appellant also has to prove that he acted as a reasonable and prudent person would have acted in a similar situation.^{Footnote 2} In other words, he has to show that he acted reasonably and carefully just as anyone else would have if they were in a similar situation.

[11] The Appellant also has to show that he took reasonably prompt steps to understand his entitlement to benefits and obligations under the Employment Insurance Act (Act).^{Footnote 3} This means that he has to show that he tried to learn about his rights and responsibilities as best he could. If the Appellant did not take these steps, then he must show that there were exceptional circumstances that explain why he did not do so.^{Footnote 4}

[12] The Appellant has to prove that he had good cause for the delay during the entire period of the delay.^{Footnote 5} That period is from the day he wants his claim to be considered to the day he actually made the claim. So, the period of the delay is from September 27, 2020, to December 29, 2020.

[13] The Appellant says he stopped working in March 2020 because of the COVID-19 pandemic. He got emergency benefits until the end of September 2020. He managed to apply for Employment Insurance (EI) benefits on December 29, 2020, but he had been trying to resolve his case since October 2020.

[14] The Appellant first told the Commission that he was late in making his claim for EI benefits because he thought it would be created automatically once the Canada Emergency Response Benefit (CERB) ended. He then explained that he was not very familiar with how to proceed.

[15] At the hearing, through his representative, he explained having looked online for information about the transition of his emergency benefits to EI benefits as of September 2020. He produced a document from a Government of Canada website indicating that, if claimants find themselves in this situation, they have no other action to take for the transition of their file from the CERB to EI. He has shown that he was in this situation during the transition of this program to EI.^{Footnote 6}

[16] He explained that the guidelines then changed in a short period of time. However, he realized as early as the beginning of October 2020—that is, from the next scheduled payment—that the transition had not happened. Other online instructions told him to activate his file. He explained that he had tried to do this online as early as October 2020, but because he did not have the code allowing him to go to the next steps, he had not been able to complete this action.

[17] He explained that he had tried numerous times to speak with an agent during this time but that it was impossible. His father had also tried unsuccessfully to reach the Commission to help him out. He even said he had waited [translation] “on the line” for an agent to answer and that, eventually, he got cut off.

[18] At the hearing, he also said that, after having tried numerous times to reach a Commission agent by phone, he succeeded in December 2020 and got a code. However, he said that the service he was offered was mediocre, that the agent did not help him, and that the agent considered from the beginning that he was at fault for having applied late and did not consider his attempts.

[19] The Appellant explained that he works with heavy machinery and that, even though his employer gave him special permission to resolve his case with the Commission at the workplace, he was not in ideal conditions when he was finally able to speak with an agent. He said that the Commission did not want to help him even though this situation caused by the pandemic is exceptional.

[20] In this sense, the Appellant argues that the political discourse is different from the administrative discourse, even though he did not get the flexibility to access benefits. According to him, there was internal confusion at the Commission that affected his credibility. He is disappointed by the Commission’s arguments giving the impression that he is at fault, even though he tried, with his parent’s help, to reach the Commission several times.

[21] Finally, he argues that the Commission transferred his file to the Tribunal but that it failed to include the exchanges that occurred in August 2021 between his Member of Parliament and a Commission agent. The Appellant argues that, when his efforts were unsuccessful, he tried another way. He also says that another interview is missing from the file the Commission transferred where an agent allegedly [translation] “hung up on him.”

[22] The Appellant therefore argues that, even though the Commission perceives that he was not active in his efforts because he did not manage to talk to an agent before December 2020, that perception is wrong and does not consider all of his attempts to finally manage to get a code allowing him to activate his claim.

[23] The Appellant’s representative even argues that government agencies should accommodate people with attention deficit disorder by giving them more time to make their claims. The Appellant has this condition but, in his case, he was able to get his parent’s support. The representative also indicates, following a decision it made, that the Commission did not consider that the Appellant’s sister had died.

[24] The Commission argues that the Appellant did not act as a reasonable and prudent person would have acted in a similar situation, since he did not contact it to find out his rights. It argues that the Appellant waited nearly a month to try to get information from the Commission and that he could have tried to reach the Commission by other available means, like the Internet.

[25] I have to assess whether the Appellant had good cause for the delay during the entire period of the delay in applying for benefits between September 27, 2020, and December 29, 2020. The Appellant has to prove that he acted as a reasonable person would have acted in a similar situation to find out his rights and obligations under the Act.^{Footnote 7}

[26] Even if the Appellant did not know how to apply for benefits and did not have the experience, as the Commission argues, good faith and ignorance of the Act are not in themselves good cause for the delay in applying for benefits. That could be a valid reason if the Appellant is able to show that he acted as a reasonable person would have acted in the same circumstances to find out his rights and obligations.^{Footnote 8}

[27] However, in this case, besides the difficulties caused by the fact that the Appellant did not know how to proceed, the Appellant also had difficulty reaching the Commission. He explained that the wait times on the phone were long and that he had tried numerous times, both by phone and Internet, to resolve his case. His attempts were unsuccessful until December 2020.

[28] I find that exceptional circumstances due to the COVID-19 pandemic must be considered and that they coincide with the period of the Appellant’s delay in applying for benefits. During this period, claimants were supposed to transition from the CERB to EI benefits.

[29] The Appellant thought there was a link between the two benefit programs and that he did not have to apply for EI benefits. As he has shown, the Government of Canada website specifically mentions this link. However, as early as October 2020, he tried numerous times to contact the Commission. I am of the view that some administrative impacts of the COVID-19 pandemic must be considered, for example: The agents were working essentially from home and the system seemed overloaded. Therefore, it is more likely than not that exceptional circumstances prevented the Appellant from applying on September 27, 2020.

[30] This exceptional period corresponds with the numerous changes for claimants, who had to transition from one program to another. The difficulty accessing information or even a code to perform all the steps required to make a claim must be considered.

[31] Even though the Commission argues that the Appellant did not act as a reasonable person would have acted in the same situation and that he could have tried to reach it by other means, I am of the view that the Appellant reasonably did what he could. Not only has he shown that he tried to reach the Commission both by phone and Internet, but his parents, who were at the hearing, have also shown that they supported him throughout the process and that they were also unable to reach the Commission during this period.

[32] The Appellant is responsible for finding out his rights and obligations from the Commission, and I find that it is more likely than not that he had difficulty speaking with a Commission agent during this period, despite the numerous attempts he says he made.

[33] I find that the Appellant has shown that he acted as a reasonable person would have acted in the same circumstances; he tried several times to contact the Commission.

Conclusion

[34] I find that the Appellant had good cause for the delay in making his claim for benefits between September 27, 2020, and December 29, 2020.

[35] The appeal is allowed.