Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

[2] The Appellant hasn’t proven that he meets the conditions to have his renewal claim for regular benefits antedated (in other words, backdated).

Overview

[3] On June 12, 2023, the Appellant filed an initial claim for Employment Insurance (EI) sickness benefits. He had been injured in November 2022 and was unable to work until May 7, 2023. The claim was made effective November 20, 2022.

[4] On September 21, 2023, the Appellant asked the Canada Employment Insurance Commission (Commission) to convert the claim to a claim for regular benefits. He asked that his claim for regular benefits begin on May 7, 2023. He says this was the date he became capable of and available for work.

[5] The Commission refused to treat his claim as though it had been made on May 7, 2023. It says the Appellant doesn’t have good cause for the delay in making his claim for regular benefits. It argues that a reasonable person would have enquired about their rights and obligations regarding regular benefits and would have made the claim sooner.

[6] The Appellant believes he has good cause for the delay.

[7] He claims that as a newcomer to Canada, the concept of EI was completely foreign to him. It doesn’t exist in his country. So, there was no way for him to know that he should be enquiring about his rights and obligations to EI.

[8] He argues that the delay in making his claim is attributable to the Commission.

[9] He believes the Commission should have informed him, when he called them to learn about sickness benefits, that once he recovered, he could be eligible for regular benefits.

[10] In late June or early July, he learned about the existence of regular benefits from a friend. He immediately called the Commission to find out if he was eligible and when he had to apply. He claims that the agent he spoke with told him he had until November 17, 2023, to apply. He says if he hadn’t been misinformed by the agent, he would have applied sooner.

[11] He argues that because the Commission antedated his claim for sickness benefits, without his having asked, he assumed that all claims could be backdated to the date of eligibility. So, he concluded that there was no urgency in claiming sooner than he did.

Issue

[12] Can the Appellant’s application for benefits be antedated to an earlier date?

Analysis

[13] The law allows a claimant to request that a claim, other than an initial claim for benefits, be treated as though it was made on an earlier date.^{Footnote 1} This is called antedating the claim.^{Footnote 2}

[14] To get your claim antedated, you have to show that you had good cause for the delay in making your claim during the entire period of the delay (that is, the delay between the day you want your claim antedated to and the day you made your claim).^{Footnote 3}

[15] In the Appellant’s case, that delay is from May 7 to September 21, 2023.

[16] To show good cause, the Appellant has to prove that he acted as a reasonable and prudent person would have acted in similar circumstances.^{Footnote 4} In other words, he has to show that he applied the same level of care, attention, and common sense as anyone else in a similar situation would have.

[17] The Appellant also has to show that he took reasonably prompt steps to understand his entitlement to EI benefits and how and when to apply for them.^{Footnote 5} This means that the Appellant has to show that he tried to learn about his rights and responsibilities under the law as soon as possible and as best he could. If the Appellant didn’t take these steps, then he must show that there were exceptional circumstances that explain why he didn’t do so.^{Footnote 6}

[18] The Appellant has the burden of proof. This means he has to show that it’s more likely than not that he had good cause for not filing his application sooner.

[19] Good cause for the delay is interpreted very strictly.^{Footnote 7} This is because it’s difficult for the Commission to administer claims and properly review a claimant’s entitlement to benefits when their application for benefits isn’t filed promptly.^{Footnote 8} So, it’s only in exceptional circumstances that an application can be antedated.

Has the Appellant shown good cause for the delay?

[20] I find that the Appellant hasn’t shown good cause for the delay in claiming regular benefits.

[21] The Appellant raises three main arguments to contend that he had good cause for the delay in not filing his claim for regular benefits sooner:

• ignorance of the law
• the Commission’s failure to provide him with complete information about the EI system
• misleading information provided by the Commission about the delay within which he had to claim regular benefits

[22] The Appellant also contends that the Commission’s application of the antedate exception is inconsistent. It makes no sense to him that the Commission antedated his sickness claim, without his even asking, when the sole reason for the delay was ignorance of the law. Yet now it’s refusing to antedate his claim for regular benefits even though he was misled by the Commission about that claim.

[23] In his view, the exception must be applied consistently, and the Commission must accept to antedate his claim for regular benefits as well.

Ignorance of the law

[24] The Appellant says that he was unaware that EI benefits existed.

[25] I’m sympathetic to his argument that he’s a newcomer to Canada and doesn’t know the law here. But case law holds that not knowing the law isn’t good cause for the delay in filing a claim for EI benefits.^{Footnote 9} And I’m unable to conclude that being a newcomer is an exceptional circumstance. Newcomers must make every effort to learn the laws in Canada.

[26] The Appellant testified that he saw that EI was being deducted from his paycheques but didn’t know what the deduction was for. In my view, a reasonable person would have inquired. Had he done so, he would have learned about the existence of the EI system and could have informed himself further about how it works.

[27] Moreover, the Appellant learned about EI sickness benefits in May 2023. In my view, a reasonable person learning about EI for the first time would have been prompted to ask about other potential benefits that he might also be unaware of, or research them for himself. Had he done so, he would have learned that he could be entitled to regular benefits as well as sickness benefits.

The Commission’s failure to provide complete information

[28] The Appellant says that as soon as he learned about EI sickness benefits, he called the Commission to find out more about them and what he had to do to get them.

[29] The Appellant argues that during that call the Commission should have also informed him about his right to regular benefits. I disagree.

[30] The Appellant called the Commission to inquire about sickness benefits in June 2023. At the time, he was already well enough to resume working and had begun looking for work. But the Appellant didn’t share these facts with the agent at that time. So, there wasn’t any way for the agent to know that the Appellant might also be eligible for regular benefits. There was no reason for them to offer up information about regular benefits.

[31] In all events, even if the Appellant had shared that information with the agent, case law holds that agents of the Commission don’t have a duty to proactively address all of a claimant’s potential rights and obligations.^{Footnote 10} It was up to the Appellant to ask direct questions to get the information that he needed in order to understand all of his rights and obligations under the law.

[32] Furthermore, the Appellant testified that he only spoke to the Commission in June 2023. So, even if the Commission had informed the Appellant about his rights and obligations with respect to regular benefits at that time, and even if the Appellant had acted on that information, this still wouldn’t account for the delay between May 7, 2023, and the time of that phone call. And the law says the Appellant must show good cause for the entire period of the delay in order to have his claim antedated.

Misleading Information

[33] The Appellant testified that he called the Commission in early July after learning about EI regular benefits to find out if he was eligible.

[34] He was told that he became eligible for regular benefits from the time he became able to work and began looking for work.

[35] The Appellant also asked when he had to apply for regular benefits. He says he was told that he could claim regular benefits at any time prior to November 17, 2023. After that date, he would have to accumulate 700 hours of insurable employment to make a claim.

[36] He says he was misinformed and relied on this information to his detriment.

[37] But the Appellant wasn’t misinformed. The information provided by the agent is correct. He was able to claim regular benefits at any time within the benefit period which commenced on November 20, 2022.

[38] However, the information the agent provided may have been incomplete. It appears that the agent may not have told the Appellant that he would only get benefits from the time of his claim.^{Footnote 11} It also appears that she didn’t say anything to the Appellant about the conditions for antedating a claim.

[39] But as I’ve already explained, Commission agents are under no obligation to take the initiative to provide claimants with information they didn’t specifically ask for.

[40] The Appellant confirmed that he didn’t ask the agent anything about needing to antedate his claim to make it effective as of May 7, 2023. He says he simply assumed the claim would be antedated because that’s what happened with his claim for sickness benefits.

[41] Although I can understand why the Appellant misinterpreted what he was told to mean that he had until November 17 to claim regular benefits, and I can also understand why he assumed that his claim would be automatically backdated, I believe that a reasonable person in his circumstances would have verified their understanding and asked more questions.

[42] This is all the more true given the Appellant’s testimony that the information he got from the Commission was rarely consistent. He says one agent would tell him one thing, and another agent would tell him something completely different in answer to the same question.

[43] It seems to me that someone who found that the information they were receiving from the Commission was inconsistent would have taken additional steps to ensure that the explanation they received about the delay to claim regular benefits was correct.

[44] Contrary to what he argues, the Appellant wasn’t misinformed by the Commission. He came to a mistaken conclusion, in part because he assumed his claim for regular benefits would be antedated, and in part because he didn’t ask questions that would have allowed him to clarify his understanding about the delay within which he had to make his claim for regular benefits.^{Footnote 12}

[45] Had he asked the agent to confirm his assumption that his claim would automatically be antedated, he would have learned that his assumption was incorrect and that he should be making his claim for regular benefits as soon as possible, instead of waiting until September 21, 2023.

Inconsistent application of the rules on antedate

[46] The Appellant says that the Commission appears to apply the rules with respect to antedate at random.

[47] He points out that he had no better reason for the delay in making his claim for sickness benefits than he does with respect to his claim for regular benefits. If anything, he has better reasons now because he believes he was misinformed. Yet, his claim for sickness benefits was automatically antedated, without the need to even request an antedate, and his request to antedate his claim for regular benefits has been refused. He can’t understand the basis for such different treatment.

[48] The Commission explained that it allowed for an antedate in the case of the claim for sickness benefits because of the nature of the claim and a policy to be more lenient with respect to claims for special benefits.

[49] From the evidence in the record, I agree with the Appellant that he had no better grounds to obtain an antedate with respect to his claim for sickness benefits than he does now.

[50] But the fact that the Commission allowed something which, at law, I find it shouldn’t have allowed, doesn’t mean that the Appellant should be allowed an antedate in circumstances where it isn’t warranted for a second time.

[51] I can understand the Appellant’s frustration regarding the inconsistent treatment of his claims for sickness benefits and regular benefits. I recognize that it has left him with the impression that the Commission applies the law at whim. However, I must apply the law, regardless of whether or not it was appropriately applied by the Commission in the past.

[52] So, I don’t agree with the Appellant that his antedate request must be allowed this time because it was allowed last time.

Conclusion

[53] I find that the Appellant doesn’t meet the conditions to have his claim for regular benefits antedated. He hasn’t proven that he had good cause for the delay in making his claim throughout the entire period of the delay.

[54] This means that the appeal is dismissed.