Digest of Benefit Entitlement Principles - Chapter 3

3.3.0    REASONS FOR A DELAY IN FILING

3.3.1     Timeliness
3.3.2     Expecting Other Employment
3.3.3     Expecting Other Moneys
3.3.4     No Record of Employment
3.3.5     Prevented from Applying
3.3.6     Alleged Erroneous Information from the Commission
3.3.7     Alleged Erroneous Information from a Third Party


3.3.0    REASONS FOR A DELAY IN FILING

The reasons put forth by claimants as good cause for a delay in filing fall into a number of categories such as an expectation of receipt of other benefits or employment, missing record of employment, ignorance of the law, inadequate information or misinformation from the Commission, the employer, or a third party.

The reason for the delay does not by itself prove good cause, rather it is the actions that the claimant took to resolve the situation that will or will not prove the existence of good cause. The circumstances surrounding the reason advanced and the claimant's efforts at resolution need to be understood before a determination of good cause or not can be made. Such an assessment requires the agent to look at factors dictated by the reason the claimant provided for the delay.

Consideration must be given to the length of the delay¹, the credibility of the claimant's statement, what, how, and from whom the claimant inquired, attempts the claimant made to resolve the situation, etc.

In the end the decision as to whether or not good cause exists regardless of the reason advanced as good cause, is based on whether or not the claimant acted as a reasonable person in their situation would have done to satisfy him/herself as to their rights and obligations under the Act².

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1. Jurisprudence Index/antedate/applicability/length of delay/;
2. C. Ehman (A-360-95), CUB 27614; W. Albrecht (A-172-85, CUB 10026).

3.3.1    Timeliness

It is not possible to set a time limit beyond which good cause cannot be proven because individual circumstances must always be considered. The claimant must provide a satisfactory explanation for not filing in a timely manner and for not inquiring promptly¹. Even when a claimant's good faith cannot be doubted a reasonable person should feel prompted to contact the proper authorities and inquire about possible action when for example, attempts to obtain the record of employment are unsuccessful. Circumstances around what the claimant did must show that efforts were made to resolve the problem.

A slightly more lenient approach is applicable when the claim is one for special benefits² as these claimants are not required to prove availability and there is not the same potential for prejudice to the Commission. The same holds true for those cases where the claimant delays filing due to receipt of severance pay. It is not unreasonable for these individuals to conclude that severance pay will preclude payment of employment benefits nor is it reasonable for them to understand the implications on the benefit period.

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1. Jurisprudence Index/antedate/rationale/;
2. Jurisprudence Index/antedate/health reasons/; Jurisprudence Index/antedate/waiting for medical evidence/.

3.3.2    Expecting Other Employment

Choosing to seek employment rather than submit a claim immediately while commendable, is not by itself good cause for a delay in filing¹. The question to decide is whether the claimant's decision not to make a claim for benefit any earlier was reasonable under the circumstances. The degree of assurance is an important factor as the mere possibility of employment might falls short of good cause.

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1. Jurisprudence Index/antedate/waiting for job/existing opportunity/; Jurisprudence Index/antedate/waiting for job/searching for work/.

3.3.3    Expecting Other Moneys

A person may refrain from making a claim for employment benefits because of an expectation that he/she is to receive other moneys for example, worker's compensation payments¹, a weekly indemnity under a group wage loss plan, or compensation as a result of a grievance². Once again the question to decide is whether the claimant's decision not to make a claim for benefit any earlier was reasonable under the circumstances. The degree of assurance is an important factor as the mere possibility that compensation might be forthcoming falls short of good cause.

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1. Jurisprudence Index/antedate/expecting compensation payments/;
2. Jurisprudence Index/antedate/waiting for grievance settlement or judgment/.

3.3.4    No Record of Employment

It is standard procedure to advise claimants verbally and in HRSDC publications, not to delay filing pending receipt of the record of employment¹. Therefore when no record of employment is advanced in support of an antedate request the claimant must show that he/she did what a reasonable person in similar circumstances would have done. Simply thinking that the record of employment and the application for benefit must be submitted at the same time and failing to inquire cannot be considered good cause.

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1. Jurisprudence Index/antedate/waiting for record of employment/.

3.3.5    Prevented from Applying

Where a claimant is truly prevented from applying for benefit at an earlier date good cause for the delay exists. All circumstances of the case must be taken into account without forgetting as previously explained, that a more lenient approach may be applicable in the case of special benefits¹. Where the delay appears to be attributable more to negligence than to a real obstacle that could not be overcome good cause is not present².

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1. Jurisprudence Index/antedate/health reasons/; Jurisprudence Index/antedate/waiting for medical evidence/;
2. Jurisprudence Index/antedate/conscious choice/negligence/.

3.3.6    Alleged Erroneous Information from the Commission

Because the Service Canada Centre is the authoritative source for information in matters of employment insurance benefits, it follows that misinformation received from this very source may amount to good cause for delay in making a claim for benefit. It is important to obtain an account of the inquiry and the information received from the claimant and where possible, from the Commission employee. The decision as to good cause is based on the credibility and reasonableness of the explanations, and the action taken as a consequence of the information received or allegedly received. It must be emphasized however, that errors by Commission personnel cannot give a person a right to benefit¹ unless the legislation so provides.

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1. Jurisprudence Index/antedate/misinformation from Commission/.

3.3.7    Alleged Erroneous Information from a Third Party

It is not uncommon or unreasonable for persons to seek information from a third party who by virtue of that person's office or employment could be regarded as experienced and knowledgeable, and from whom the claimant could anticipate accurate information¹, for example but not limited to, a payroll advisor, union representative, employer, etc. The decision as to good cause is based on the credibility and reasonableness of the explanations, and the action taken as a consequence of the information received or allegedly received.

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1. Jurisprudence Index/antedate/misinformation from third party/.