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.
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.