Employment Insurance (EI)

Decision

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

Overview

[2] On April 7, 2020, the Appellant made an initial claim for EI benefits.^{Footnote 2} A benefit period for the EI Emergency Response Benefit (EI ERB) was established effective March 22, 2020. The Appellant received this type of benefit until early October 2020. A benefit period for EI regular benefits was then established effective October 4, 2020, when the EI ERB was no longer available.^{Footnote 3}

[3] On May 10, 2021, the Appellant asked the Canada Employment Insurance Commission (Commission) to antedate her claimant reports to November 15, 2020, so that she could receive benefits.^{Footnote 4}

[4] The Commission says that the Appellant’s benefit period was renewed effective June 27, 2021, after she had requested it on September 1, 2021.^{Footnote 5}

[5] On September 16, 2021, the Appellant made another request to antedate her claimant reports to November 15, 2020.^{Footnote 6}

[6] On September 21, 2021, the Commission told her that she was not entitled to EI benefits from November 15, 2020, to June 26, 2021, because she had not submitted her report or reports on time and she had not shown good cause for the delay.^{Footnote 7}

[7] On October 29, 2021, after a request for reconsideration, the Commission told the Appellant that it was upholding the September 21, 2021, decision concerning her antedate request (claim procedure).^{Footnote 8}

[8] The Appellant explains that she went back to work part-time on October 30, 2020. She says that she stopped completing her claimant reports after completing those covering the period from October 4, 2020, to November 14, 2020, because she wanted to ask the Commission about her benefit period first, since she had gone back to work. The Appellant explains that she made repeated attempts to contact the Commission after she stopped completing her reports in November 2020. On January 5, 2021, she tried to complete her reports but was unsuccessful, and she contacted the Commission again. On January 8, 2021, she got a call from the Commission, which she recorded to properly remember what she would have to do based on the information given to her. The Appellant says that, from the information she got then, she understood that she could wait until her employment contract ended before reactivating her claim for benefits and starting to complete her reports again. This explains why she waited until May 10, 2021, ahead of her employment contract ending on May 31, 2021, before requesting an antedate to November 15, 2020. After waiting several weeks for a response from the Commission, she again contacted it repeatedly in June 2021 to explain her case again. When she requested a reconsideration in October 2021, after explaining her case and despite her indicating that she had a recording of her January 8, 2021, conversation with an agent, the Commission told her that it had no record of that conversation. On November 29, 2021, the Appellant challenged the Commission’s reconsideration decision. That decision is now being appealed to the Tribunal.

Issue

[9] I have to decide whether the Appellant’s claim for benefits should be antedated.^{Footnote 9}

[10] To decide this, I have to answer the following question:

• Did the Appellant have good cause for the delay in claiming EI benefits, therefore justifying her antedate request?

Analysis

[11] In general, to receive EI benefits, you have to make a claim for each week that you did not work and want to receive benefits.^{Footnote 10} You make claims by submitting reports to the Commission every two weeks. Usually, you make your claims online. There are deadlines for making claims.^{Footnote 11}

[12] A renewal claim for benefits is an application that a claimant makes to reactivate a benefit period previously established by an initial claim that has been inactive for four or more consecutive weeks. A renewal claim must be made within one week after the week of unemployment.^{Footnote 12}

[13] 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.

[14] To get a claim for benefits antedated, a claimant has to prove that they had good cause for the delay during the entire period of the delay. That period is from the earlier day they want their claim antedated to until the day they actually made the claim.^{Footnote 13}

[15] 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.

[16] The Federal Court of Appeal (Court) has held that a claimant who does not make their claim on time has to show that they had good cause for the delay and that they acted as a reasonably prudent person would have acted in the same situation.^{Footnote 14}

[17] The claimant has to prove this on a balance of probabilities. This means that they have to show that it is more likely than not that they had good cause for the delay.

[18] According to the Court, having good cause means that you did what a “reasonable person” would have done to find out about their rights and obligations under the Act.^{Footnote 15}

[19] A claimant also has to show that they took reasonably prompt steps to understand their entitlement to benefits and obligations under the Act.^{Footnote 16} This means that the claimant has to show that they tried to learn about their rights and responsibilities as soon as possible and as best they could. If the claimant did not take these steps, then they must show that there were exceptional circumstances that explain why they did not do so.^{Footnote 17}

Issue 1: Did the Appellant have good cause for the delay in claiming EI benefits, therefore justifying her antedate request?

[20] I find that the Appellant’s reasons for claiming EI benefits late amount to good cause for such a delay, under the Act.

[21] I find the Appellant’s testimony credible. She gave a complete and detailed picture of what made her wait before claiming benefits and before starting to complete her claimant reports again, after having done so for several weeks of reports. Her testimony is accurate and without contradictions. Her testimony is supported by the recording of a conversation in early January 2021 with a person who, among other things, explained when she could apply to renew her benefit period. In addition, the Appellant gave detailed explanations about her dealings with the Commission before and after her January 2021 conversation to explain her case.

[22] In this case, the evidence shows that, after a benefit period was established for the Appellant effective October 4, 2020, she completed her claimant reports for the period from October 4, 2020, to November 14, 2020.^{Footnote 18}

[23] On January 5, 2021, she tried to complete her claimant reports for the period from November 15, 2020, to November 21, 2020, but the Commission’s reporting system rejected her reports.^{Footnote 19}

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

1. a) After completing her claimant reports for the period from October 4, 2020, to November 14, 2020, the Appellant then stopped completing them because she had gone back to work part-time as a teacher in late October 2020. Given this situation, she did not know whether she had to continue completing her reports. Instead of submitting reports that could lead to penalties for her, the Appellant preferred to wait until she contacted the Commission (Service Canada) for guidance first.^{Footnote 20}
2. b) Starting in November 2020 and in late 2020, the Appellant made repeated attempts to contact the Commission to speak with an agent. The Appellant says that she made a point of calling at least once per week. All her attempts were unsuccessful. She argues that, even though the Commission criticized her for not going to a Service Canada office in person,^{Footnote 21} she worked from 8 a.m. to 4 p.m., Monday to Friday. Additionally, there were times when the Appellant was in lockdown because of the COVID-19 pandemic.^{Footnote 22}
3. c) On January 5, 2021, before students went back to school and before going back to work, the Appellant tried to contact the Commission by phone and through the Service Canada website by making an inquiry and leaving her contact information. It was also on January 5, 2021, that the Appellant tried to complete her claimant reports for the November 15 to 28, 2020, reporting period.^{Footnote 23}
4. d) On January 8, 2021, the Appellant tried to contact the Commission again. That same day, the Commission contacted her. She was then able to speak with an agent.^{Footnote 24} The Appellant stresses that it was on January 8, 2021, that she spoke with a Commission agent, not another day (for example, November 15, 2020, or January 10, 2021), as indicated in some of her statements.^{Footnote 25} The Appellant recorded that conversation to make sure she understood the explanations given and to refer to them as needed because there were things that might escape her.
5. e) At the hearing, the Appellant played the recording of her January 8, 2021, conversation with a person she identified as a Commission agent. The roughly 30-minute recording provides the following information: number of hours the Appellant worked each week; hourly wage; amounts the Appellant received for the weeks beginning November 15, 22, and 29, 2020, and for that week (January 3 to 9, 2021); number of weeks of benefits paid (five weeks); number of weeks left in the benefit period (40 weeks); and gross amount of benefits the Appellant could get each week based on the salary reported (reduced benefit rate of $80), beginning the week of November 15, 2020 (seven weeks at $80 each, which amounts to $560 gross). During this conversation, the person told the Appellant that she could get an antidatation [antedate] approved by explaining why the Appellant had not completed her reports sooner. The person asked the Appellant whether she wanted to get an antidatation done to [translation] “go back” to the week beginning November 15, 2020, with a reduced benefit rate, or leave things as they were to get a full rate, though she might lose a few weeks. The Appellant initially said that she wanted a dilatation [expansion], confusing that word with antidatation. The Appellant explained that, when she went back to work, she made many attempts to tell the (Employment Insurance) Commission. The person summed up the Appellant’s explanations that, from November 15, 2020, after going back to work, she tried to contact the Commission so that she could talk to an agent on the phone, and then made an inquiry online. The person said that she would complete the “cards” (claimant reports) up to the week before their conversation (up to the week ending January 2, 2021) and told the Appellant that her “cards” would have been completed up to the following week (week beginning January 3, 2021). The person said that the cheques would [translation] “come in” from the relevant period in November 2020 (week beginning November 15, 2020). The person said that she would explain that the Appellant had gone back to work part-time but was unsure what to do about her claimant reports and that this was the reason for her repeated attempts to contact the Commission, since she was unsure whether she was “payable.” The person told the Appellant to make sure to keep completing her reports and to have her confirmation number.
6. f) During that same conversation, the Appellant then asked whether she could put her remaining weeks of benefits [translation] “on hold” for a while for use later if necessary, since she had gone back to work part-time and could get by on her income. The person told her she had two options: The first was to complete her claimant “cards” (claimant reports) and renew her file, which would allow her to get some money while working, depending on the hours worked. In this case, the benefits would run out after 45 weeks because the Appellant could get benefits for up to 45 weeks and had 40 weeks left to get benefits. The other option was to do absolutely nothing and leave things as they were. This meant no file renewal, no claimant reports, and no antidatation. The person explained to the Appellant that she could make a renewal claim when there was a [translation] “shortage at work” (shortage of work), and she would be paid then (by the Commission). The person explained to her that, if she did not need the $80 per week (reduced benefit rate), there was no antidatation, and things would stay the same, since she already had an inactive file. The person explained to the Appellant that, in late May 2021 or early June 2021, if she did not have a new contract to fulfill or beginning then, she would have her file reopened then, since there would be no money coming in. The Appellant then said that she would do that and that she would get $80 per week until May 2021. The person told her that they [translation] “could always try this,” that is, spreading the amount of $80 per week starting November 2020. The person also told her that, in June 2021, she would be able to get the full amount of benefits (full benefit rate). The person asked the Appellant whether she would reactivate her file, and she said no. The person explained to the Appellant that the last week that was “payable” to her was the week of September 26, 2021 (end of the Appellant’s benefit period) and that, after that, it would be a new file. The Appellant also explained that she would be on vacation outside Canada during the summer of 2021. She was then told that she would not be able to get benefits while outside Canada. The Appellant was also given information about establishing a new claim for benefits and about the insurable hours that would be considered in establishing that claim.
7. g) The Appellant explains that, during her conversation on January 8, 2021, the Commission agent told her she had two options: unlock her account and continue completing reports every two weeks to get a gross amount of $80 per week in benefits, or leave the situation as it was and do nothing if she felt her income was enough—when she stopped working, she would be able to reactivate her claim for benefits from the time she stopped completing her reports.^{Footnote 26}
8. h) The Appellant explains that, on January 8, 2021, when the agent told her that she could leave the situation as it was if she felt that her salary from her part‑time job was enough to support her, this meant not submitting any more reports until her contract ended in late May 2021. She could then request an antidatation [antedate]. That is what the Appellant chose to do based on the information obtained during that conversation. The Appellant explains that, since she had a trip coming up (summer of 2021), it was small reserve she would be able to keep when she would go on her trip. She figured that it was better to leave her money in the EI fund and that, when it came time to receive the money, it would help her financially. So, the Appellant chose to wait because it was the most useful option for her.^{Footnote 27}
9. i) The Appellant argues that she would not have decided to wait before completing her reports if she had not spoken with a Commission agent. She points out that she would never have known that she had two options if she had not spoken with that agent. Otherwise, she would have opted to get the roughly $80 per week in benefits (gross amount) by completing her reports.
10. j) The Appellant explains that, although one of her statements reports her as saying that a Commission agent had not given her the [translation] “right explanations” or had given her bad advice,^{Footnote 28} she cannot say that this was the case. She says that she may have misunderstood or misinterpreted what the agent told her. The Appellant points out that she contacted a Commission agent because the agent knew what she had to do.
11. k) The Appellant says that it was during her January 8, 2021, conversation that the agent told her about an antidatation [antedate], a word she confused with dilatation. The Appellant points out that, in her notice of appeal, she used the word dilatation^{Footnote 29} even though it was not part of the jargon used by the Commission, as it indicated in its arguments.^{Footnote 30} The Appellant did not know the word antidatation or what it might mean in relation to EI.
12. l) On May 10, 2021, the Appellant contacted the Commission again given that her employment contract was ending soon, on May 31, 2021.^{Footnote 31} She wanted to [translation] “lay the groundwork” and know what to do about her benefit period. The Appellant did not try to contact the Commission between January 2021 and May 10, 2021. She argues that, even though the Commission criticizes her for not completing reports until May 10, 2021, she did not have to contact it every day during that period to find out what she should do, given that, on January 8, 2021, an agent had [told] her to do it when she stopped working.
13. m) On May 10, 2021, when she requested an antedate, the Appellant told an agent what she wanted. She thought that the problem unlocking her account would be resolved or that she would be allowed an antedate. The agent told her that antedating or [translation] “going back” to mid-November 2020 was impossible.^{Footnote 32} The Appellant told her about her January 8, 2021, conversation with an agent. The agent told her that all she could do was note her request in her file or start the process to have her claim for benefits reactivated effective May 10, 2021, and that she would hear back within two or three weeks, which, in her mind, meant forgetting everything that had happened since November 15, 2020. The Appellant told the agent that this was not what she wanted, even though she wanted to get benefits from then on, that is, May 10, 2021; however, she said she wanted her benefit period to resume on November 15, 2020. So, after this call, the Appellant did not call the Commission over the next two or three weeks, since she was waiting to hear back from it. After May 10, 2021, the Appellant did not try to complete her reports because she knew her account was locked. Even though her contract ended on May 31, 2021, the employer offered her another one that would end on June 25, 2021, and she accepted it.^{Footnote 33}
14. n) In early June 2021, and until she left Canada on July 5, 2021, the Appellant again contacted the Commission repeatedly, that is, at least 10 times.^{Footnote 34} She was first able to speak with an agent in early June 2021 and again explained her case. The Appellant says that, each time she called, she was told the Commission would call her back and that, during one of these calls, she was told that her case would be escalated.
15. o) On October 27, 2021, when speaking with a Commission agent during the reconsideration of her file,^{Footnote 35} the Appellant recounted all her attempts to contact the Commission (Service Canada). The agent told her he had no record of her January 8, 2021, phone conversation with a Commission agent or of her conversations with other agents in June 2021.^{Footnote 36} During her conversation on October 27, 2021, the Appellant did not have proof of her January 8, 2021, recording because she was at work, but she summarized it for the agent. When the agent told her that he had no record of her January 8, 2021, conversation with an EI agent, it upset her a little because it was sort of like the last card she had left to defend herself.
16. p) The Appellant says that she really did everything necessary to inform the Commission (Service Canada).

[25] I find that, taking into account all the circumstances of her case, the Appellant has shown that she had good cause for the delay in claiming EI benefits during the entire period of the delay, from November 15, 2020, to June 26, 2021.

[26] I find that the Appellant’s actions are what a “reasonable person” would have done in similar circumstances.

[27] In this case, I find it more likely than not that the recorded conversation the Appellant played at the hearing was a conversation she had with a Commission agent. I place the most weight on this evidence. It contains several pieces of information specific to the Appellant’s EI file. Given the content of the information given to the Appellant during that conversation, there is every reason to believe that it was a conversation with a Commission agent that happened on or about January 8, 2021.

[28] So, I do not accept the Commission’s argument that the Appellant’s file [translation] “does not prove any communication” with her before May 10, 2021.^{Footnote 37}

[29] In addition to supporting the Appellant’s statements and testimony about her many dealings with the Commission since January 2021, the recording she played sheds light on the options she had of reactivating her claim for benefits or waiting until it would be most advantageous for her to do so.

[30] I have no reason to question the Appellant’s testimony and statements about her January 2021 phone conversation. The Appellant was always consistent in her testimony and statements when she indicated that she had obtained information from the Commission that she could either renew her claim for benefits or hold off on it.

[31] I find that the information the Appellant received in January 2021 was open to interpretation. This information might have led her to believe that she could wait before applying to renew her claim for benefits and starting to complete her reports again, without fear of losing the benefits she was entitled to. I find that the information she received on this point was unclear.

[32] Even though the Appellant was already a few weeks late in reactivating her claim for benefits when she had her phone conversation in early January 2021, I find that she had good cause for the delay. The Appellant’s reasons are that she had gone back to work part-time in late October 2020 and that she had made repeated attempts to contact the Commission between November 15, 2020, and her January 2021 conversation, since she wanted to get information first before continuing to complete her reports or reactivating her claim for benefits.

[33] I point out that this delay did not complicate getting benefits for the reporting periods from mid-November 2020, based on the information given to the Appellant during her January 2021 conversation. The Appellant was told that she would be able to get benefits for the period she had not completed her reports, given the reasons she had provided.

[34] I also point out that the Commission has not made any arguments about the explanation the Appellant once gave it in her September 16, 2021, statement,^{Footnote 38} namely that she had contacted it because she was unsure whether she should continue completing her claimant reports, since she was working part-time.

[35] I accept the Appellant’s explanation that, based on her conversation in early January 2021, she concluded that she could wait until the end of her contract, scheduled for late May 2021, before renewing her claim for benefits and that the claim would be antedated to mid-November 2020.

[36] I find that, based on all the information given to her during that conversation, the Appellant could reasonably believe, even wrongly, that she could wait until her employment contract ended in late May 2021 before reactivating her claim for benefits and continuing to complete her reports, without any drawbacks.

[37] So, I accept the Appellant’s reasons for not contacting the Commission to request an antedate between her January 2021 conversation and May 10, 2021, ahead of her employment contract ending.

[38] I also accept the Appellant’s explanation that, when she contacted the Commission again on May 10, 2021, to ask that her claim for benefits be antedated to November 15, 2020, she was relying on the information she had received in January 2021, adding that she did not want to give up the benefits that could be paid to her for the period before May 10, 2021.

[39] I also find credible the Appellant’s explanation that, when she contacted the Commission on May 10, 2021, she was told she would hear back about her request within two or three weeks after her call.

[40] The Commission argues that the Appellant did not apply to renew her claim for benefits after May 10, 2021, after requesting an antedate that day.^{Footnote 39} The Commission also says that the Appellant did not make a renewal claim after speaking with it on June 24, 2021, either.^{Footnote 40} The Commission points out that it was not until September 1, 2021, that the Appellant asked it to renew her claim effective June 27, 2021, and that the request was granted.^{Footnote 41}

[41] On this point, I find that, when the Appellant contacted the Commission on May 10, 2021, it was mainly to get her claim for benefits antedated to November 15, 2020. Despite the explanations she gave then about the information she had received earlier in January 2021, the Appellant did not get a positive response to her request but was told that the request would be considered and that she would hear back in the following weeks. There is nothing in the evidence on file to indicate that, on May 10, 2021, the Commission told the Appellant that she had to make a renewal claim and that, in doing so, she would be able to get benefits for the period before that date.

[42] In my view, the reasons the Appellant mentioned for not reactivating her claim for benefits and not starting to complete her reports again after her May 10, 2021, antedate request continued to apply after she made that request.

[43] I also accept as true the Appellant’s statements that, after a few weeks of waiting following her May 10, 2021, call, she again contacted the Commission repeatedly from June 2021 until she left Canada in July 2021 to explain her case to agents again. The Appellant’s statements also indicate that, during one of her calls, she was told that her case would be escalated.

[44] I note that the Commission mentions in its arguments that, during the period from January 5, 2021, to July 2, 2021, the Appellant made around 10 attempts to complete her reports for the period from November 15 to 28, 2020, either by telephone or through its online service.^{Footnote 42}

[45] The Commission also says that, on June 24, 2021, after the Appellant had asked for a callback, a call centre agent told her that she had to make a renewal claim pending the decision about the delay in submitting her reports.^{Footnote 43}

[46] On this point, based on the information from the Commission, I find that it did not tell the Appellant what she had to do following her May 10, 2021, antedate request until June 24, 2021.

[47] Although the Commission says that the Appellant did not apply to renew her claim for benefits after May 10, 2021, and that she did not do so until September 1, 2021,^{Footnote 44} the fact is that she had made an antedate request on May 10, 2021, and was still waiting to hear back about it and about the reasons she had given then for not starting to complete her reports again.

[48] I point out that the Commission did not make its decision on the Appellant’s antedate request until September 21, 2021, after she had made a second antedate request on September 16, 2021.^{Footnote 45}

[49] I find that the Appellant’s many efforts to explain her case to the Commission, before and after getting information about her claim for benefits in January 2021, show that, throughout the entire period of the delay, she did what a reasonable and prudent person would have done to satisfy themselves as to their rights and obligations under the Act.

[50] I find that the Appellant followed up on her obligations properly by acting on the recommendations she had received during her January 2021 phone conversation.

[51] In my view, all the circumstances the Appellant described support the finding that she had good cause for the delay in claiming benefits.

[52] The Court tells us that having good cause simply means that you did what a “reasonable person” would have done to find out about their rights and obligations under the Act.^{Footnote 46}

[53] In my view, the Appellant has shown that she did what a reasonable and prudent person would have done in similar circumstances to satisfy themselves as to their rights and obligations.

Conclusion

[54] I find that the Appellant has proven that she had good cause for the delay in claiming benefits.

[55] This means that the Appellant’s claim for benefits should be antedated to November 15, 2020.

[56] The appeal is allowed.