A-1865-83
Attorney General of Canada (Applicant)
v.
Douglas A. Dunnington (Respondent)
Court of Appeal, Urie, Ryan and Stone JJ.—
Toronto, June 7; Ottawa, October 1, 1984.
Unemployment insurance — Application to set aside deci
sion of Chief Umpire — Respondent failing to apply for
unemployment insurance benefits upon separation from full-
time employment of 38 years because obtaining part-time
employment — Resigning from part-time employment after
five months and applying to antedate claim for benefits under
s. 20(4) of Act and s. 39 of Regulations — Insurance officer
refusing claim — Board of Referees and Chief Umpire holding
part-time employment constituting good cause for delay —
Umpire erring in law and application allowed — Respondent
making mistake of law in assuming part-time employment
disentitling him to claim benefits — Pirotte v. Unemployment
Insurance Commission et al., 119771 1 F.C. 314 (C.A.) holding
delay caused by claimant's misunderstanding of legal rights or
duties not good cause for delay — Unemployment Insurance
Act, 1971, S.C. 1970-71-72, c. 48, ss. 17(1),(2) (as am. by S.C.
1978-79, c. 7 , s. 4), 19 (as am. by S.C. 1976-77, c. 54, s. 32),
20(4), 21(1), 22 (as am. idem, s. 34), 24 — Unemployment
Insurance Regulations, C.R.C., c. 1576, ss. 34(1), 39 (as am. by
SOR/81-625, s. 1), 44 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28.
This is an application to review and set aside a decision of the
Chief Umpire. The respondent retired early from his full-time
employment of thirty-eight years due to poor health. Soon
after, he accepted part-time work with another employer, but
after five months was forced to resign for health reasons. He
filed an initial claim for benefits after separation from his
part-time employment based on his separation from his full-
time job, and also applied to have his claim antedated. Both the
Board of Referees and the Umpire held that the fact he was
working part-time constituted "good cause for his delay".
Subsection 20(4) provides that "when a claimant makes an
initial claim for benefit on a day later than the day he was first
qualified ... and shows good cause for his delay, the claim
may, subject to prescribed conditions, be regarded as having
been made on a day earlier than the day on which it was
actually made". Section 39 of the Regulations provides that
antedating is subject to proof that "throughout the whole
period between that prior day and the day he made the claim
he had good cause for the delay".
The respondent gave the fact that he had hoped to avoid
collecting unemployment insurance benefits as his explanation
for his delay in filing his initial claim. The Board of Referees
allowed the respondent's appeal from the decision of an insur-
ance officer, refusing to antedate an initial claim for benefit on
the ground that a prudent person would normally act in the
same manner. The Chief Umpire dismissed the appeal from the
decision of the Board of Referees on the ground that the
Board's conclusion was justified because it was reasonable that
the claimant would not claim benefits which depended on his
being unemployed. He added that it is unreasonable to expect a
person to present a claim for unemployment benefits while
employed. The Umpire recognized that a delay caused by a
claimant's misunderstanding of his legal rights or duties could
not be good cause for the delay further to the decision in
Pirotte v. Unemployment Insurance Commission et al., [1977]
1 F.C. 314 (C.A.). The issue is whether the Umpire erred in
law.
Held (Stone J. dissenting): The application should be
allowed.
Per Ryan J. (Urie J. concurring): If the respondent failed to
apply for benefits because he thought his part-time work
disentitled him to claim benefits, his mistake was based either
on unawareness or misunderstanding of the Act. Such would be
a mistake of law.
A claimant, to take advantage of subsection 20(4), must
show not merely that there is "good cause" to grant him relief,
but that he had "good cause for his delay". The long period of
full-time employment cannot be characterized as a good reason
for the respondent's delay in submitting his initial claim. The
Umpire erred in law. The fact of the respondent's part-time
employment during the period of his delay in filing his initial
claim cannot be good cause for his delay.
Per Urie J.: The Court is bound to follow the decision of the
Federal Court of Appeal in Pirotte v. Unemployment Insurance
Commission et al., supra, where it was held that the principle
that ignorance of the law or mistake of law does not excuse
failure to comply with a statutory provision, applies to subsec
tion 20(4) of the Act.
Per Stone J. (dissenting): The claimant was ignorant of the
law as it applied to him. The Pirotte case is distinguishable on
its facts because there the claimant, who was aware of her
rights to be paid benefits, remained unemployed throughout the
period of delay. The ratio of the Pirotte decision does not go as
far as the applicant asserts, namely that a good cause cannot be
shown where a delay rests upon a claimant's ignorance of
relevant legislative provisions. Subsection 20(4) requires only
that the relevant circumstances surrounding the delay be exam
ined and a decision made as to whether good cause has been
shown to exist in light of those circumstances.
The common law maxim ignorantia legis neminem excusat is
concerned with a person seeking to escape the consequences of
failing to observe a statutory obligation on the pretext that he
had no knowledge of it. By enacting subsection 20(4), Parlia
ment provided a flexible mechanism requiring only that a
person seeking relief show that the cause of his delay was a
"good" one. Nothing in the statute excludes the possibility that
in particular cases ignorance of the legislation may be regarded
as "good cause". In each case the circumstances surrounding
the cause for delay must be examined and a decision reached as
to whether a "good cause" has been shown. The Chief Umpire
was correct in concluding that the respondent had shown good
cause for his delay. The cause was a "good" one as it had as its
basis a desire to avoid collecting benefits at all. The delay did
not prevent the Commission from verifying the conditions of
entitlement.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Pirotte v. Unemployment Insurance Commission et al.,
[1977] 1 F.C. 314 (C.A.).
APPLIED:
Bliss v. Attorney General (Can.), [1979] 1 S.C.R. 183.
CONSIDERED:
Kiriri Cotton Co. Ltd. v. Dewani, [1960] A.C. 192 (P.C.).
REFERRED TO:
Murray v. Minister of Employment and Immigration,
[1979] 1 F.C. 518 (C.A.); Perry v. Public Service Com
mission Appeal Board, [1979] 2 F.C. 57 (C.A.); Arm-
strong Cork Canada Limited, et al. v. Domco Industries
Limited, et al., [1981] 2 F.C. 510 (C.A.); Rex. v. Bailey
(Richard), [1800] Russ. & Ry. 1; 168 E.R. 651; Mihm v.
Minister of Manpower and Immigration, [1970] S.C.R.
348.
COUNSEL:
M. Duffy for applicant.
D. R. Cooke for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
David R. Cooke, Kitchener, for respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: I have had the advantage of reading
the reasons for judgment of both of my brothers,
Ryan and Stone. Because of the sympathy for the
respondent which the rather unusual circum
stances of this case engender, it is with some
reluctance that I have concluded that, for the
reasons given by Ryan J., the section 28 applica
tion must be allowed. Le Dain J., on behalf of the
Court in Pirotte v. Unemployment Insurance
Commission et al., [1977] 1 F.C. 314 (C.A.), at
page 317, had this to say as to whether or not the
principle that ignorance of law or mistake of law
does not excuse failure to comply with a statutory
provision, is applicable in showing "good cause"
under subsection 20(4) of the Unemployment In
surance Act, 1971 [S.C. 1970-71-72, c. 48]:
What Parliament contemplated by good cause in section
20(4) of the Act must be determined in the light of general
principles of law. It is presumed that Parliament did not intend
to depart from such principles unless the intention to do so is
clear. (Maxwell, On Interpretation of Statutes, 12th ed., p.
116.) It is a fundamental principle that ignorance of law does
not excuse failure to comply with a statutory provision. (Mihm
v. Minister of Manpower and Immigration [1970] S.C.R. 348
at p. 353.) The principle is sometimes criticized as Implying an
unreasonable imputation of knowledge but it has long been
recognized as essential to the maintenance and operation of the
legal order. Because of its very fundamental character I am
unable to conclude, without more specific indication, that Par
liament intended that "good cause" in section 20(4) should
include ignorance of law.
I am of the opinion that if that passage
expresses a proper view of the application of the
principle to subsection 20(4) of the Act, this Court
should, in the interests of sound administration of
justice, accept it and follow it.' I am unable to
conclude that it does not. It is only in an excep
tional case, where a panel of the Court is con
vinced that a decision of an earlier panel is wrong,
that the earlier decision ought not to be followed. I
am not convinced that the decision in Pirotte is
wrong in law or that it should not apply in this
case where, it is clear that Mr. Dunnington, as
Ryan J. has observed, failed to apply for benefits
because he thought that his part-time work disen-
titled him to claim them. That failure was based
on his lack of understanding of or unawareness of,
the requirements of the Act—clearly a mistake in
law. Such an error places him squarely within the
principle expressed in Pirotte, supra, and, there
fore, as I see it, he is deprived of the possibility of
using his mistake in law as a "good cause for his
delay" in making his claim.
Murray v. Minister of Employment and Immigration,
[1979] 1 F.C. 518 (C.A.), at pp. 519-520; Perry v. Public
Service Commission Appeal Board, [1979] 2 F.C. 57 (C.A.);
Armstrong Cork Canada Limited, et al. v. Domco Industries
Limited, et al., [1981] 2 F.C. 510 (C.A.), at pp. 517-518.
The section 28 application should be granted
and the decision of the Chief Umpire set aside. I
would dispose of the matter in the manner sug
gested by my brother Ryan.
* * *
The following are the reasons for judgment
rendered in English by
RYAN J.: This is a section 28 application to
review and set aside a decision of the Chief
Umpire, acting under the Unemployment Insur
ance Act, 1971 ("the Act"), dismissing an appeal
from a decision of a Board of Referees. The Board
had allowed an appeal brought by the respondent,
Mr. Dunnington, from the decision of an insurance
officer who had refused to antedate an initial
claim for benefit filed by Mr. Dunnington.
Mr. Dunnington, after a lengthy period of
employment, separated from his job. Either soon
before or soon after (depending on one's view of
the facts) his separation, he accepted part-time
work with another employer. He did not claim
unemployment benefits when he was first qualified
to do so after his separation from his full-time
employment for reasons of health. After some
months working part-time, he was once again
separated from his work. He then filed an initial
claim for benefits based on his separation from his
full-time job, and also applied to have his claim
antedated; he submitted that he had good cause
for his delay. Both the Board of Referees and the
Umpire held that the fact he was working, though
only part-time, constituted "good cause for his
delay". It is the decision of the Chief Umpire
which is under review, and the issue is whether, in
deciding as he did, the Umpire erred in law: did
the Umpire miscontrue the words "good cause for
[his] delay" as they are used in subsection 20(4) of
the Act?
Subsection 20(4) of the Act reads:
20....
(4) When a claimant makes an initial claim for benefit on a
day later than the day he was first qualified to make the claim
and shows good cause for his delay, the claim may, subject to
prescribed conditions, be regarded as having been made on a
day earlier than the day on which it was actually made.
The subsection refers to "prescribed conditions".
Section 39 of the Unemployment Insurance
Regulations [C.R.C., c. 1576 (as am. by SOR/81-
625, s. 1] ("the Regulations") provides:
39. An initial claim for benefit may be regarded as having
been made on a day prior to the day on which it was actually
made if the claimant proves that
(a) on the prior day he qualified, pursuant to section 17 of
the Act, to receive benefits; and
(b) throughout the whole period between that prior day and
the day he made the claim he had good cause for the delay in
making that claim.
In his initial claim for unemployment insurance
benefit dated July 23, 1982, Mr. Dunnington
stated that the last day he had worked for his
full-time employer, Burns Meats Ltd., was Janu-
ary 15, 1982. The record of employment form filed
by Burns Meats Ltd. indicates that Mr. Dunning-
ton was on vacation from January 18 to February
27, 1982, and that he took early retirement on that
date. The insurance officer who refused to ante
date Mr. Dunnington's claim treated the applica
tion as an application to have the claim antedated
to 'January 17, 1982, although the application
itself mentions no specific date. The Umpire treat
ed Mr. Dunnington's application as being an
application to antedate to February 27, 1982; in
my view he was justified in doing so.
In a letter to the Canada Employment Centre,
dated October 1, 1982, in which he gave notice of
his appeal to the Board of Referees, Mr. Dunning-
ton stated:
I would like to clarify the time period listed in your letter. I
certainly do not expect my claim to go back to January 17 as I
received six weeks holiday pay from Burns. I expected my
Unemployment Insurance Benefits to commence after
March 1.
And in its submissions to the Umpire, the Com
mission stated:
The Commission considers that the claimant was not qualified
to receive benefit on January 17, 1982, as he had not had an
interruption of earnings from his employment. The Record of
Employment (Exhibit 3) issued to the claimant indicates that
he received $2,403.60 vacation pay on termination and that he
was on vacation from January 18 to February 27, 1982. Since
the claimant did not suffer an interruption of earnings prior to
February 27, 1982, the Board of Referees, in the opinion of the
Commission, erred in law in contravention of Regulation 39 by
allowing the claim to be antedated to January 17, 1982.
The Umpire stated with respect to February 27,
1982: "There is no dispute about the correctness of
the date ...".
I would make these observations concerning Mr.
Dunnington's part-time employment: During Mr.
Dunnington's period of paid vacation from mid-
January to February 27, 1982, he accepted a
part-time position as a custodian with the 404 Air
Force Association ("the Association") in Water-
loo, Ontario, on February 7, 1982 (he had been a
shipper/receiver with Burns), and continued to
work part-time until July 16, 1982; his working
conditions were, however, such that he left this
job, again for reasons of health. In his submission
to the Board of Referees, he says that he was paid
$300 a month for two days of work per week; the
details of his earnings appear on the Record of
Employment filed by the Association. It is clear
from Mr. Dunnington's application to antedate
that he recognized that his work with the Associa
tion was part-time. He filed his initial claim for
benefit about a week after his separation from his
part-time job.
In his application to have his initial claim for
benefit antedated, Mr. Dunnington explained his
delay in filing his initial claim: he said that he had
hoped to avoid collecting unemployment insurance
benefits on retiring from his job with Burns by
securing other full-time employment. He said that
unfortunately he had been unable to locate any
thing but part-time work, and had found this work
too hard on his health. He explained that he
wanted to have his claim antedated so as to have
his insurance benefits based on his contributory
earnings during his thirty-eight and a half years of
employment with Burns.
His application to antedate was rejected.
In his formal notice of appeal to the Board of
Referees, Mr. Dunnington wrote:
I have never collected Unemployment Insurance Benefits in all
my 38 years at Burns and did not intend to do so. My efforts
were directed in finding another job, not in obtaining Unem
ployment Insurance Benefits. I only applied when the new job
adversely affected my health.
In Mr. Dunnington's submission to the Board of
Referees, it is stated:
By the end of 1981, Mr. Dunnington realized that he could no
longer take the rigors of the cold and dampness at Burns Meats
and gave his formal notice to retire early. His efforts to locate
alternative employment now intensified to the point when he
eventually was able to obtain a part-time position as a Custodi
an of Wing 404 R.C.A.F. Association in Waterloo at $300 per
month for two days per week.
At the time, his principles and work ethic made Unemployment
Insurance an anathema. He had worked all his life, wanted to
work now and knew Unemployment Insurance was for people
who could not or sometimes would not work. He was not one of
them.
Mr. Dunnington started working at the 404 one week after he
left Burns but after several months, realized his arthritis,
rheumatism and aching joints were really not much better than
at Burns. Reluctantly, he came to the conclusion that he may
not be able to continue working at the Wing, and as there were
no other jobs open to him may have to apply for Unemploy
ment Insurance Benefits. Finally, as his health had not
improved by early July, he gave his notice and filed for
Unemployment Insurance.
It was then that he was first advised that his Benefits would be
based not on his 38 and one half years at Burns Meats, but on
the five months at Wing 404. He was informed by the Insur
ance Officer he should have applied for Unemployment Insur
ance Benefits upon leaving Burns Meats rather than finding
alternative employment.
In his response to observations submitted by the
Commission to the Board of Referees, it was
stated:
Mr. Dunnington had never applied for Unemployment Insur
ance Benefits since he started working at age 16, 47 years ago.
He knew that before collecting, he would have to make every
effort to find alternate employment, but did not think he would,
in effect, be penalized for doing so. As indicated in our formal
submission, the first time he was advised or envisaged that his
Benefit would be based on his earnings at 404 Wing rather
than Burns Meats, was when he made his formal application in
July. Had he known of that rule previously, he would have
accepted only a job of comparable earnings to protect his
maximum Unemployment Insurance Benefits.
It is the submission of this Appeal that it is unreasonable to
expect a 63 year old shipper/receiver with grade eight educa
tion, who has never collected Unemployment Insurance Ben
efits, to know that a claim will be based on his latest employer,
regardless of how little he earned or how short a time he
worked.
The Board of Referees allowed the appeal. In
their decision, they said in part:
STATEMENT OF FACTS:
The claimant appeared before the Board and was accompanied
by Mr. George Goebel, of the K-W Labour Council. The facts
contained in the submission were repeated and additional evi
dence (Exhibit No. 11) was received and reviewed by the Board
and it did somewhat assist us in making our decision.
FINDING:
The claimant did in fact find new employment within a reason
able time, but unfortunately found that he was physically
unable to perform the new duties, therefore, we agree that in
showing good faith, he has inadvertently penalized himself, and
since we agree that a prudent person would normally have
acted in the same manner, we conclude that the request for
antedating be granted.
The Exhibit No. 11 referred to is apparently an
excerpt from a manual used by insurance officers
to determine eligibility for benefit. It appears in
the Case at pages 19-21.
The Commission appealed to the Chief Umpire.
In dismissing the appeal, he said in part:
The concept [of good cause for delay] is also governed, to some
extent, by the principle that ignorance of the law is no excuse,
but I find that expression to be deceptively simplistic, without
examining the circumstances which relate to such misunder
standing of eligibility. It is clear, however, that where the only
reasons offered by a claimant for failing to file on time is
failure to inform himself of his obligations, the claim will not be
antedated. It is also quite clear that once these legal concepts
have been taken into account, the existence of good cause is a
question of fact in respect to which the Board of Referees is
entirely competent.
In this case, I place some significance on the fact that during
the period for which the antedating is sought, the claimant was
employed, albeit part time. That fact justifies the Board's
conclusion that, in the circumstances, it was entirely reasonable
that the claimant would not present a claim for benefits which
depended on his being unemployed. In turn, when that part
time employment ceased and the claimant filed for benefits, he
then learned that he could have collected benefits while at
work. I would add my own assessment that since the antedating
provisions are somewhat discretionary in nature, they ought,
wherever possible, to be extended to a claimant who, as in this
case, had been fully employed for 38 years and who during the
period in question had taken on part time employment after his
retirement. I recognize that there was a close parallel to the
situation of a claimant who is unemployed and who fails to file
solely because of a misunderstanding of eligibility, but I am of
the view that the distinction is sufficient to permit a different
conclusion. It is unreasonable to expect a person to present a
claim for unemployment benefits while employed and, in this
case, the Board of Referees was justified in extending to this
claimant the benefits of the discretionary provisions of
Section 20.
A claimant may, as did Mr. Dunnington, make
an initial claim for benefit some time after he is
first qualified under section 17 of the Act to do so.
Subsection 20(4) of the Act makes it possible for
such a claimant to apply to have his claim recog
nized as having been made on a day earlier than
the day on which it was actually made. For his
application to succeed, he must show that he had
good cause for his delay. The right to have his
claim antedated is obviously an important one. A
claimant's right to receive initial benefits under
section 22 [as am. by S.C. 1976-77, c. 54, s. 34] of
the Act depends on the establishment for him of a
benefit period; the benefits which may be paid to
him are benefits "... for each week of unemploy
ment that falls in the benefit period". The date of
commencement of the benefit period can obviously
be important.
And take this case. Here it appears, as I read
the facts, that Mr. Dunnington could have made
an initial claim for benefit late in February, 1982,
but delayed until July of that year, delayed until
after his separation from his part-time job with the
Association. According to the material in the
Case, it appears that his rate of benefit was deter
mined, I take it because of section 24 of the Act, 2
not on the basis of his higher earnings during his
last 20 weeks of employment with Burns, but on
2 It is not necessary to express any views one way or another
on what appears to have been the Commission's interpretation
of section 24.
his much lower earnings during his part-time
employment with the Association. If, however, his
initial claim for benefit were considered as having
been made shortly after his separation from
employment with Burns, his period of benefit and,
I assume, his rate of benefit would have been
calculated by reference to his employment with
Burns.
The Chief Umpire recognized in his decision
that a delay caused by a claimant's mistaken
understanding of his legal rights and duties under
the Act or Regulations could not, in itself, be good
cause for the delay. In recognizing that a mere
mistake of law cannot be a good cause for delay,
the Chief Umpire was obviously aware of the
judgment of this Court in Pirotte v. Unemploy
ment Insurance Commission et al., [1977] 1 F.C.
314 (C.A). Mr. Justice Le Dain said at pages
316-318:
The question, as I see it, is whether it is reasonable to
conclude in this particular context, given the nature of the
statutory requirement involved, its role and effect in the legisla
tive scheme, and the clear intention to provide for relief from
delay where the circumstances appear to justify it, that Parlia
ment could have contemplated ignorance or mistake of law as
constituting good cause, at least in some circumstances.
As sections 20(1), 53, 54 and 55 of the Act indicate, the
submission of a claim in accordance with the requirements of
the Act and the Regulations is an essential condition of entitle
ment to unemployment benefits and determines the date from
which entitlement begins to run. The law would appear to be
designed to encourage the prompt filing of claims, presumably
so that the Commission may verify the conditions of entitle
ment as soon as possible after the interruption of earnings. A
claim may be antedated if the claimant shows good cause for
the delay.
What Parliament contemplated by good cause in section
20(4) of the Act must be determined in the light of general
principles of law. It is presumed that Parliament did not intend
to depart from such principles unless the intention to do so is
clear. (Maxwell, On Interpretation of Statutes, 12th ed., p.
116.) It is a fundamental principle that ignorance of law does
not excuse failure to comply with a statutory provision (Mihm
v. Minister of Manpower and Immigration [1970] S.C.R. 348
at p. 353.) The principle is sometimes criticized as implying an
unreasonable imputation of knowledge but it has long been
recognized as essential to the maintenance and operation of the
legal order. Because of its very fundamental character I am
unable to conclude, without more specific indication, that Par
liament intended that "good cause" in section 20(4) should
include ignorance of law.
The issue in this case is somewhat analogous to that which
the courts have had to consider under statutory provisions for
relief from failure to give municipal corporations the notice of
accident required by law, where there is "reasonable excuse"
for the want or insufficiency of notice. It has been held that
mere ignorance of law, at least where there is no fault imput-
able to the other party, is not reasonable excuse. (Varty v.
Rimbey (1953) 7 W.W.R. (N.S.) 681, affirmed by (1954) 12
W.W.R. (N.S.) 256 (Alta. C.A.).) I can see no good reason for
not taking the same view of the essentially similar expression
"good cause" in the present case.
The admission of ignorance of the law as good cause for
delay would, as the umpire has said, introduce considerable
uncertainty into the administration of the Act without the
possibility of any clear and reliable criteria to determine when
it should apply in particular cases. I do not understand any one
to contend that ignorance of the law should be good cause for
delay in any and all circumstances. If not, then when, in
principle, would it be considered to be justification? I cannot
conceive of any workable criterion short of a duty of care that
would be satisfied only by application to the Commission itself
for information as to the precise requirements of the law and
regulations. In such a case we would be dealing not so much
with ignorance of law as with mistake induced by representa
tions on behalf of the Commission. Such a case might be
regarded as good cause for delay because it would be a cause
imputable to the Commission rather than to the claimant. It is
not necessary, however, for purposes of the present case to
express an opinion on this point.
If it were necessary so to decide, I would find it
difficult to say that any of the reasons given by
Mr. Dunnington in his application for antedating,
in his Notice of Appeal to the Board of Referees,
or in his observations to the Board of Referees
could constitute good cause for delay. Neither his
expressed hope that he might find full employment
and thus avoid collecting benefits nor his apparent
distaste for unemployment insurance could, in my
view, constitute a reasonable cause for delay.
What is critical, however, is that, after a hearing,
the Board of Referees found that the application
for antedating should be granted because Mr.
Dunnington had found new employment and thus,
in delaying his application for benefit, had acted as
a prudent person would act in the circumstances.
The Umpire concluded that the Board was justi
fied in its decision because "It is unreasonable to
expect a person to present a claim for unemploy
ment benefits while employed ...".
It was submitted in argument by counsel for the
Attorney General that the Umpire's decision was
based on a mistake of law. And the critical issue,
as I see it, is whether the Umpire's decision,
considered as having been based on the ground he
gave for it, constituted error of law.
The situation appears to be this:
When Mr. Dunnington separated from his
employment with Burns late in February 1982, he
qualified under section 17 of the Act to receive
benefits. The fact that he was then working part-
time with the Association would not have disquali
fied him, nor would it have disentitled him to
claim benefits. Under section 22 of the Act, a
claimant who has had his benefit period estab
lished for him is entitled to be paid benefits for
each week of unemployment that falls within his
benefit period. And subsection 21(1) of the Act
defines "a week of unemployment" as a week in
which a claimant "does not work a full working
week". It is clear from the materials in the Case
that Mr. Dunnington knew that his work with the
Association was part-time work, not full-time
work. If, therefore, he failed to apply for benefits
because he thought his work with the Association
disentitled him to claim benefits, the mistake he
made in delaying was based either on unawareness
or on misunderstanding of the provisions of the
Act, particularly of subsection 21(1). If this was
his mistake, it was a mistake of law.
If, however, a person in the situation in which
Mr. Dunnington found himself from late February
to mid-July had mistakenly concluded that his
work was full-time work and had decided not to
apply for benefit because of this mistake, such an
error might possibly provide a basis for granting
relief under subsection 20(4) of the Act. The
meaning of the term "a full working week", as
that term is used in subsection 21(1), is a question
of law; whether, however, particular weeks falling
within a benefit period are full working weeks may
well turn on questions of fact, questions on which a
claimant, acting in good faith, might well be mis
taken. Even a quick reading of section 44 of the
Regulations indicates how such a factual error
might arise. My problem with Mr. Dunnington's
case is, however, that I find nothing in the ma
terials to support a finding that Mr. Dunnington
was mistaken in this sense or, even if he was, that
he delayed because of his mistake.
I would add this observation:
I can understand the Umpire's concern that,
because of his delay, Mr. Dunnington may only be
entitled to benefits considerably lower that those to
which he would have been entitled had he applied
in time. He had been employed with Burns for
over thirty years, and only for slightly over five
months with the Association. I can also understand
the Umpire's statement that the antedating provi
sion should, if possible, be used to protect a claim
ant who had been fully employed for thirty-eight
years and then had worked part-time for only
about five months. Unemployment insurance is,
after all, an insurance plan to which insured
employees contribute from their earnings. Unfor
tunately, however, a claimant, to take advantage
of subsection 20(4), must show not merely that
there is a "good cause" to grant him relief, but
that he had "good cause for his delay". I do not
really see how his long period of employment with
Burns could be characterized as a good reason for
Mr. Dunnington's delay in submitting his initial
claim.
For the reasons I have given, I conclude that the
Umpire, in dismissing the appeal from the Board
of Referees for the reasons he gave, erred in law.
Accordingly, his decision should be set aside.
I would grant this section 28 application and set
aside the decision under review. I would refer the
appeal from the decision of the Board of Referees
back to the Chief Umpire or to another Umpire
designated by him to be disposed of on the basis
that the fact that Mr. Dunnington was employed
only part-time during the period of his delay in
filing his initial claim cannot, in itself, be good
cause for his delay in making his initial claim for
benefits.
* * *
The following are the reasons for judgment
rendered in English by
STONE J. (dissenting): I have had the advantage
of reading the reasons for judgment prepared by
Mr. Justice Ryan. As the facts with which we are
concerned are fully reviewed by him it will not be
necessary to repeat them.
I agree that in point of fact the application was
to antedate the initial claim for benefit to Febru-
ary 27, 1982 rather than to January 17, 1982.
The issue whether the respondent has made out
a case for antedating his initial claim for benefit is
of some difficulty. It is obviously to be determined
upon a proper interpretation of subsection 20(4) of
the Unemployment Insurance Act, 1971, S.C.
1970-71-72, c. 48, as amended:
20....
(4) When a claimant makes an initial claim for benefit on a
day later than the day he was first qualified to make the claim
and shows good cause for his delay, the claim may, subject to
prescribed conditions, be regarded as having been made on a
day earlier than the day on which it was actually made.
The prescribed conditions are set out in section
39 of the Unemployment Insurance Regulations:
39. An initial claim for benefit may be regarded as having
been made on a day prior to the day on which it was actually
made if the claimant proves that
(a) on the prior day he qualified, pursuant to section 17 of
the Act, to receive benefits; and
(b) throughout the whole period between that prior day and
the day he made the claim he had good cause for the delay in
making that claim.
The essential character of the statute has been
described by the Supreme Court of Canada in
Bliss v. Attorney General (Can.), [1979] 1 S.C.R.
183 as "a scheme for the insurance of those unem
ployed members of the work force who fulfil the
qualifications therein specified". In that case, Rit-
chie J. speaking for the Court said (at page 186):
Under the scheme embodied in the Act, the Government is
cast in the role of an insurer and the individual unemployed
members of the work force who have contributed by way of
premiums and who have otherwise qualified to receive benefits
are characterized as "beneficiaries". The Act is replete with
references to the unemployed individuals who have fulfilled the
statutory qualifications as "the insured" and the payments to
which such persons are entitled under the Act are throughout
referred to as "benefits".
In construing subsection 20(4) it is important to
bear these observations in mind and also that, in
general, the statute is intended to benefit lay per
sons having no detailed knowledge of the statute
and Regulations. The respondent had attained a
grade eight education and had spent almost his
entire working life as a receiver-shipper with Burns
Meats Ltd. There is no evidence that he had any
detailed knowledge of the relevant provisions of
the statute or Regulations.
The respondent's decision not to claim benefits
in February was made on the basis that he would
first attempt to find another full-time job compat
ible with the state of his health. He was unable to
do so. He found a part-time job. Had the state of
his health been able to withstand the rigours of the
new position he would have continued in it. In July
he had to give it up due to deteriorating health
caused by rheumatism and arthritis. Shortly after
ward, he made an initial claim for benefit and at
the same time sought to have it antedated in order
that the benefit could be based upon the consider
ably higher level of remuneration earned on his old
job with Burns Meats Ltd.
Subsection 20(4) of the statute refers to the
making by a claimant of an initial claim for ben
efit on a day later than the day "he was first
qualified to make the claim". By virtue of subsec
tion 17(1) benefits "are payable ... to an insured
person who qualifies to receive such benefits". In
so far as relates to the present case, the respondent
qualified under subsection 17(2) [as am. by S.C.
1978-79, c. 7, s. 4] to receive benefits after
accumulating the minimum "twenty or more
weeks of insurable employment in his qualifying
period" with Burns Meats Ltd. and suffering an
"interruption of earnings from employment" on
February 27, 1982. No question therefore arises
that the conditions of eligibility contained in sec
tions 17 and 18 of the statute were met. It is
apparent from a reading of these various provi
sions that the respondent "was first qualified to
make the claim" when he qualified for benefits
pursuant to subsection 17(2), that is, immediately
after February 27, 1982 when, effectively, his
earnings from employment with Burns Meats Ltd.
were interrupted by reason of his retirement. Sub
section 34(1) of the Regulations required that the
claim be made "within three weeks of the week for
which benefit is claimed".
Section 19 [as am. by S.C. 1976-77, c. 54, s. 32]
of the statute reads:
19. When an insured person who qualifies under section 17
makes an initial claim for benefit, a benefit period shall be
established for him and thereupon benefit is payable to him in
accordance with this Part for each week of unemployment that
falls in the benefit period.
That section must be read with subsection 21(1) of
the Act. It is clear from a reading of the latter
provision that the respondent did not lose eligibili
ty to collect benefits by reason only of accepting a
part-time job. Each "week of unemployment"
referred to in section 19 is, in the words of subsec
tion 21(1), "a week in which (the claimant) ...
does not work a full working week."
The respondent is entitled to have his claim
antedated only if he can show "good cause for his
delay". The Chief Umpire found that it was not
until July when he applied for benefits that the
claimant "learned that he could have collected
benefits while at work". In my view, even though
the respondent had an aversion to collecting ben
efits and initially sought to avoid doing so, in
essence the delay in making his claim arose out of
a lack of appreciation on his part that by delaying
an initial claim his benefits might have to be based
upon his part-time earnings rather than his full-
time earnings. He acted in good faith throughout
but also without appreciation of the provisions of
the statute and Regulations bearing upon qualifi
cation for benefits as well as the procedures for
making and for antedating a claim. I agree with
the applicant's submission that in substance the
claim for antedating is based upon an assertion
that the respondent was "ignorant of the law as it
applied to him". He elected not to claim in Febru-
ary when he accepted part-time employment. It
was only in July when his health gave out that he
claimed benefits and sought to antedate his claim.
The Chief Umpire thought it "unreasonable to
expect a person to present a claim for unemploy
ment benefits while employed" and that the Board
of Referees was justified in antedating the claim.
He concluded that "good cause" for delay had
been shown. Was he correct? The applicant con
tends that the decision of this Court in Pirotte v.
Unemployment Insurance Commission et al.,
[1977] 1 F.C. 314 (C.A.) is determinative of the
issue and that we should therefore allow the
application. On the other hand, the facts of that
case were somewhat different than those of the
present one. The claimant, who was well aware of
her rights to be paid benefits, remained unem
ployed throughout the period of delay. Here, the
respondent accepted employment on the expecta
tion that his health would stand up. Subsequent
events proved him to be mistaken in this regard.
I do not think that the ratio decidendi of the
Pirotte decision goes as far as the applicant
asserts, namely, that a good cause cannot be shown
where a delay rests upon a claimant's ignorance of
relevant provisions of the statute or of the Regula
tions. In my view subsection 20(4) requires only
that the relevant circumstances surrounding the
delay be examined and a decision made as to
whether a good cause has been shown to exist in
light of those circumstances.
The common law maxim ignorantia legis nemi-
nem excusat is a well-established one. It is of
considerable antiquity deriving from a line of En-
glish decisions dating back at least to Rex v.
Bailey (Richard), [1800] Russ. & Ry. 1; 168 E.R.
651. I do not regard it as casting upon the respond
ent a responsibility to be knowledgeable of the
relevant provisions of the statute and Regulations
or suffer the consequences of his ignorance.
Rather, the maxim is concerned with a person
seeking to escape the consequences of failing to
observe a statutory obligation on the pretext that
he had no knowledge of it. The learned editors of
Halsbury's Laws of England, Fourth edition,
Volume 44, "Statutes", paragraph 833, at page
506 state:
Ignorance of the law does not excuse the performance of a
statutory obligation, and is therefore no defence to proceedings
for a breach of the obligation... .
Lord Denning put the point thusly in Kiriri Cotton
Co. Ltd. v. Dewani, [ 1960] A.C. 192 (P.C.), at
page 204:
It is not correct to say that everyone is presumed to know the
law. The true proposition is that no man can excuse himself
from doing his duty by saying that he did not know the law on
the matter. Ignorantia juris neminem excusat.
See also Mihm v. Minister of Manpower and
Immigration, [1970] S.C.R. 348, at page 353.
I do not see how it can be said that the provi
sions of the Unemployment Insurance Act, 1971 or
Regulations with which we are concerned cast
upon the respondent any obligation or duty in the
sense discussed above. At very most the respondent
unwittingly failed to comply with the statutory
procedures for claiming benefits. I would not char
acterize such failure as breaching any statutory
obligation or duty such as rendered applicable the
maxim ignorantia legis neminem excusat. By
enacting subsection 20(4), Parliament itself
envisaged that some of those it intended to benefit
might, for a variety of reasons, delay in claiming
benefits. It chose not to particularize those rea
sons. Instead, it provided in subsection 20(4) a
rather flexible mechanism requiring only that a
person seeking relief show that the cause of his
delay was a "good" one. I can find nothing in the
statute that would exclude in particular cases the
possibility that ignorance of the relevant provisions
of the statute or Regulations may be regarded as
"good cause". In each case the circumstances sur
rounding the cause for delay, whatever it may be,
must be examined and a decision reached as to
whether a "good cause" has been shown.
With respect, I think the Chief Umpire was
correct in concluding as he did. The words "good
cause" are not defined. They are of broad import.
While obviously not "any" cause will do, I think
the cause of the particular delay was a "good" one.
It has its basis in a desire to avoid collecting any
benefits at all. Within five months health problems
intervened requiring the respondent to give up his
part-time job and to claim the benefits which had
accrued over a lifetime of work. There is not in
this case any evidence establishing that the delay
in some way prevented the Commission from veri
fying the conditions of entitlement. In the circum
stances of this case I think the respondent has
shown a good cause for his delay.
I would therefore dismiss this application.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.