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A-172-85
Attorney General of Canada (Applicant)
v.
Waldemar Albrecht (Respondent)
Court of Appeal, Urie, Marceau JJ. and Cowan D.J.—Toronto, June 6; Ottawa, June 18, 1985.
Unemployment insurance — Application to review and set aside Umpire's decision reversing Board of Referees' ruling — Board refusing to antedate claim for benefits as claimant not establishing "good cause for delay" within meaning of Act s. 20(4) — Interpretation of "good cause" — Claimant following erroneous advice of employer concerning filing of claim — Umpire considering ''good cause" shown — Applicant main taining Umpire not entitled to substitute her discretion for Referees' — Whether Umpire erring in law in finding facts constituting good cause for delay, permitting antedating of claim — Issue of mixed fact and law involving construction of statute — Pirotte v. Unemployment Insurance Commission explained and limited — Applicant arguing Pirotte case stat ing "good cause" not established when claimant's misunder standing of law due to representations of third party — Pirotte only establishing ignorance of law not "good cause for delay" — Respondent fulfilling conditions as to "good cause" when able to demonstrate duty of care in satisfying requirements of Act — Respondent having duty of reasonable man placed in similar circumstances — Unemployment Insurance Act, 1971, S.0 1970-71-72, c. 48, s. 20(4) — Unemployment Insurance Regulations, C.R.C., c. 1576, s. 39 (as am. by SOR/81-625).
The respondent, on being laid off, was erroneously advised by his ex-employer that he could not apply for unemployment insurance benefits until he had exhausted his severance pay. This information was confirmed by the relocation agency to which the respondent was sent. Trusting the expertise of his employer and relocation counsellor, the respondent filed his claim for benefits late. The Board of Referees refused the respondent's explanation and denied his request for antedating on the ground that he had not established "good cause for delay". The Umpire was of the opinion that the respondent acted as a reasonable person placed in similar circumstances would have and permitted antedating of the claim. The present appeal attacks the Umpire's decision on the grounds that (1) the Umpire was not entitled to substitute her discretion for that of the Referees and (2) that the Umpire erred in law in finding that the respondent's reasons for delay constituted "good cause" within the meaning of the Act.
Held, the application is dismissed.
The question of determining if there exists "good cause for delay" is a question of fact and characterization not involving the exercise of discretion. It is an issue of mixed fact and law. The Umpire, in reversing the Board's decision, is not disputing the facts but the meaning given by the Board to the words "good cause". It is a question appealable under section 95 of the Act.
The applicant invokes the decision of Pirotte v. Unemploy ment Insurance Commission, [1977] 1 F.C. 314 (C.A.), in submitting that "good cause for delay" is not established where the claimant seeking antedating misunderstood the law due to misrepresentations of third parties. The Commission maintains that it can only be held responsible for its own mistakes. However, the Pirotte case only establishes that ignorance of the law is not, in itself "good cause for delay". If the applicant is capable of demonstrating that he exercised the duty of care required of a reasonable man in similar circumstances, he must be deemed to have provided a "good cause for delay". The test applicable implies a partially subjective appreciation of the circumstances. A flexible application of subsection 20(4) is in keeping with the intentions of Parliament. In the case at bar, the Umpire's finding that the respondent's reasons for delay constituted "good cause" within the meaning of the Act, is a correct one.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Pirotte v. Unemployment Insurance Commission, [1977] 1 F.C. 314 (C.A.).
DISTINGUISHED:
Unemployment Insurance Commission v. Howley (1984), 54 N.R. 317 (F.C.A.); Attorney General of Canada v. Dunnington, [1984] 2 F.C. 978 (C.A.).
REFERRED TO:
Attorney General of Canada v. Gauthier, judgment dated October 9, 1984, Federal Court, Appeal Division, A-1789-83, not yet reported.
COUNSEL:
Brian J. Roy for applicant.
No one appearing for respondent.
SOLICITOR:
Deputy Attorney General of Canada, for applicant.
The following are the reasons for judgment rendered in English by
URIE J.: 1 have had the advantage of reading the reasons for judgment of Marceau J. and am fully in agreement therewith as well as with his proposed disposition of the application.
* * *
The following are the reasons for judgment rendered in English by
MARCEAU J.: The decision sought to be reviewed and set aside by this section 28 [Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10] application was made by Madam Justice Reed, acting as an Umpire under the Unemployment Insurance Act, 1971 [S.C. 1970-71-72, c. 48]. It relates to a case where, once again, the issue was whether a claimant was entitled to have his claim for benefit dealt with as if it had been made on a day earlier than the day on which it was actually made. The provision of the Act involved is well known to people interested in the administration of the unemployment insurance scheme; it is subsec tion (4) of section 20 which 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.
Subsection (1) of section 20 [as am. by S.C. 1976-77, c. 54, s. 33] establishes the principle that the date of filing of an initial claim determines the date from which entitlement begins to run. The prompt filing of a claim was obviously seen by Parliament as a basic requirement for a proper administration of the system that was being set up by the Act. To understand why, it is sufficient to think of the investigations the Commission is called upon to make to confirm the validity of a claim. One, nevertheless, could hardly be oblivious to the fact that a strict application of the principle could impose on claimants pecuniary losses which would not always be fully justified for the sole purpose of facilitating administration. The object of subsection 20(4) is, of course, to bring in some flexibility in the application of the principle. The
antedating of a claim for benefit is made possible if the claimant is able to show "good cause" for his delay, a condition echoed by section 39 of the Regulations [Unemployment Insurance Regula tions, C.R.C., c. 1576 (as am. by SOR/81-625)] where the "prescribed conditions" referred to in the Act are set out as follows:
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.
But what is to be meant by the words "good cause"? "Cause" is, of course, a reason—a reason for having failed to act sooner, but what makes a reason good? What type of circumstances can give the claimant the "good cause" he needs to avoid the loss he would otherwise suffer? Those circum stances raise, on a first level, questions of fact but then, once established, they must be seen as quali fying as "good cause". What is it that constitutes "good cause"? The jurisprudence of the Umpire is replete with cases where the question is directly raised and this Court has been called upon to deal with it at various times. And yet a great deal of uncertainty remains. This case gives the Court an occasion to shed some light on the problem.
The circumstances which had led the respondent here to delay the filing of his claim can be very quickly set out. On being laid off, the respondent was advised by his ex-employer that he could not apply for insurance benefits until his severance pay was exhausted and that the record of employment he was requesting and which indeed he needed to file his claim would be mailed to him when the time to proceed arose. The respondent received the same information from the relocation agency to which he had been sent by his ex-employer so that he could get some assistance in his effort to find a new job. Since he had never had anything to do with unemployment insurance in thirty-three years
of employment and had not, as he put it, the expertise of either his employer or his relocation counsellors, he did not think of doing otherwise than to accept their instructions.
The Board of Referees refused to see in the explanation of the respondent the "good cause for delay" required by subsection 20(4), and it simply upheld the Commission's ruling denying the request for antedating. The Umpire disagreed. In her understanding of the statutory requirement, a test as strict as the one applied by the Board was not justified; she was of the opinion that "no higher conduct should be expected of a claimant than would be expected of a reasonable person". Her conclusion was that, in the circumstances, the respondent had shown "good cause".
The attack against the learned Umpire's deci sion is based on two grounds. The first is that the Umpire was simply not entitled to interfere with the decision of the Board and "substitute her discretion for that of the referees"; none of the possible grounds of attack established by section 95 [as am. by S.C. 1976-77, c. 54, s. 56; 1984, c. 40, s. 79(1)] was present.' The other one is that, in any event, the Umpire erred in law in finding that the facts as established constituted the good cause for delay required by the Act to allow the antedat ing of a claim.
' Section 95 reads thus:
95. An appeal lies as of right to an umpire in the manner prescribed from any decision or order of a board of referees at the instance of the Commission, a claimant, an employer or an association of which the claimant or employer is a member, on the grounds that
(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse and capricious manner or without regard for the material before it.
I feel I can dispose of the first ground without lengthy comments. As I see it, the decision as to whether there was "good cause" is not a question of fact and discretion but a question of fact and characterization. The issue is one of mixed fact and law. Nowhere does the Umpire disagree with the pure findings of fact of the Board, she accepts all of them; what she disputes, in effect, is the meaning given by the Board to the words "good cause" as used in the Act. The construction of a statute is involved and this, of course, is a question of law.
The second ground of attack is much more serious, and it will be somewhat more arduous to show satisfactorily why I think it too must fail. As could be expected, the argument is advanced as being based on the leading and always cited deci sion in cases of antedating of Pirotte v. Unemploy ment Insurance Commission, [ 1977] 1 F.C. 314 (C.A.). It is said that the Pirotte decision and a long series of decisions rendered afterwards under its authority stand for the proposition that "good cause" is not established where the person seeking to have his claim antedated "asserts either that he misunderstood the law as it applied to him or was misinformed by a source or sources other than the Commission" (page 8 of the applicant's memoran dum). The Commission, it is explained, cannot "be held responsible for any mistake induced by the representations" of a third party. "There is a duty of care required of the claimant that would only be satisfied by application to the Commission itself for information."
I am aware that there are several rulings and decisions which seem to have adopted the view here advanced by the applicant, the authority for which has purported to be the Pirotte judgment. But these rulings and decisions, so far as I have been able to ascertain, are mostly by the Commis sion itself and boards of referees. A few may have come from umpires, but I do not think that this Court has, as yet, clearly subscribed to such a rigid view. It was argued that the recent decision of this Court in Unemployment Insurance Commission v. Howley (1984), 54 N.R. 317, points in that direc tion, as does the decision of this Court in Attorney
General of Canada v. Dunnington, [1984] 2 F.C. 978. Counsel conceded during argument, however, that the facts in the latter case were so different that it could be easily distinguished, and I am of the opinion that the Howley judgment should like wise be confined to its own facts which differ somewhat from those in the case at bar. There appears to be confirmation of this in the fact that an even more recent judgment of this Court in Attorney General of Canada v. Gauthier, (A-1789-83, dated October 9, 1984, not yet report ed) seems clearly to take an opposite view. In so far as Howley and Dunnington are concerned, therefore, I do not feel that the principles of stare decisis, judicial comity or sound administration of justice whichever may be applicable in this Court require them to be followed in this case.
As for the Pirotte decision itself, I suggest that some boards of referees and umpires have given it a scope of authority and an extension of principle which a close reading of the reasons for judgment do not permit. As I read the reasons for judgment of Mr. Justice Le Dain (then of this Court) who wrote the judgment of the Court, the ratio deci- dendi of the decision was fully contained in this passage at page 317:
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.
This, of course, stands for the firm proposition that ignorance of the law is not a good cause for delay within the meaning of subsection 20(4) of the Act, and I would certainly not dare depart therefrom. But it does not stand for any other proposition. It is true that Mr. Justice Le Dain did not limit his comments to that statement. In the last paragraph of his reasons he wrote [at pages 317-318]:
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.
It is obviously this statement that has sustained the line of jurisprudence invoked by the applicant. But the learned Justice was then expressing a thought as to what he could then "conceive" and he took great care to note that he was speaking obiter. It is for this reason that I refuse to accept the appli cant's statement that the Court is compelled by the existence of the clear precedent in Pirotte and the rule of judicial comity if not of stare decisis to adopt the interpretation of the words "good cause" urged by him.
It seems to me that logic alone does not permit one to pass from the proposition that ignorance of the law does not constitute good cause—the only proposition for which the Pirotte decision strictly stands—to a proposition that ignorance of the law excludes good cause. This second proposition does in no way derive from the first. It is, it must be realized, the second proposition that is behind the interpretation defended by the applicant, so much so that the explanation given as to why ignorance induced by the Commission would be treated dif ferently is that it would then be superseded by the principle that the Commission must be held responsible for its own fault (an explanation inci dentally somewhat surprising when it is considered that we are dealing with a rule in no way related to administrative liability). To say, as the applicant does in effect, that ignorance of the law excludes good cause seems to me to defeat the whole pur pose of the legislation since, apart from instances of physical incapacity and leaving aside possible cases of indifference or lack of concern, ignorance of the law is necessarily involved in the failure of a claimant to exercise his rights in due time. The
submission of the applicant appears to me unacceptable.
The Umpire in her reasons for judgment cor rectly reminds us that "it is to the claimant's conduct that the requirement of showing good cause for delay is directed". There is, indeed, an obligation which imports a duty of care required of a claimant and I readily agree that, to assure the prompt filing of claims, so important in the eyes of Parliament, that obligation and duty must be seen as being very demanding and strict. Of course, I have no doubt that it would be illusory for a claimant to cite "good cause" if his conduct could be attributed only to indifference or lack of con cern. I readily agree, too, that it is not enough for him simply to rely on his good faith and his total unfamiliarity with the law. But an obligation, with its concomitant duty of care, can be demanding only to a point at which the requirements for its fulfillment become unreasonable. In my view, when a claimant has failed to file his claim in a timely way and his ignorance of the law is ulti mately the reason for his failure, he ought to be able to satisfy the requirement of having "good cause", when he is able to show that he did what a reasonable person in his situation would have done to satisfy himself as to his rights and obligations under the Act. This means that each case must be judged on its own facts and to this extent no clear and easily applicable principle exists; a partially subjective appreciation of the circumstances is involved which excludes the possibility of any exclusively objective test. I think, however, that this is what Parliament had in mind and, in my opinion, this is what justice requires.
The second ground of attack advanced by the applicant, is, in my view, no more valid than the first one. The test substituted by the Umpire for the one applied by the Board and then used by her to conclude that the claimant had shown "good cause" was the correct one.
I therefore see no merit in this application and think that it must be denied.
COWAN D.J.: I concur.
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