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CUB 77367




Canadian Umpire Benefit

Court name

Canadian Umpire Benefit


G.T. (15 juillet 2011), CUB 77367, en ligne : Assurance-Emploi .

Full text


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IN THE MATTER of a claim by
G.T. (Seq.1)

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IN THE MATTER of an appeal to an Umpire by the Canada Employment
Insurance Commission from a decision by the Board of Referees
given on 13 October 2009, at Belleville, Ontario.

The Honourable R.J. Marin

This Commission appeal was heard in Winnipeg on May 4, 2011.

This appeal involves two decisions given by the same Board of Referees; the appeals were heard at the same time. One decision will apply to both. In addition, two other Commission appeals were listed to be heard; by agreement, the appeals were consolidated.

The claimants were seasonal migrant agricultural workers who sought to qualify for benefits and asked their late filing be received, alleging there was good cause shown for the delay ‘throughout the period beginning on the earlier day and ending on the day when the initial claim was made’ within the meaning of subsection 10(4) of the Act.

In each appeal, the delay may vary, although the antedate requested is invariably several years late. For greater certainty, Appendix ‘A’ to this decision reflects in each case the name of the claimant, the starting period of the delay and the date of filing.


The claimant, a Mexican citizen, worked in Canada as a seasonal agricultural worker from July 20 to December 1, 1995. It is not disputed he had sufficient insurable hours to establish a claim for benefits. Exhibit 3 reflects the Statement of Remuneration issued, the employment income, and the employee’s UI deductions. A second period of employment began on July 20 and terminated on December 7, 2001. The Record of Employment confirms this reference period.

On July 28, 2009, several years later, he filed a request for parental benefits in relation to two children: one born on August 26, 1995 and the other on April 1, 2001. None of these facts are disputed.

In the written application filed on his behalf, dated July 23, 2009, he states he was unaware of these benefits ‘until a friend, who also applied notified me’. He adds: ‘I am also applying for my children born in 1992 and 2001’. [Exhibit 4]

The Commission refused to qualify the claimant and denied the request for antedate, having concluded he failed to show good cause for the entire period of the delay.

The Claimant’s Appeal:

In filing the appeal to the Board of Referees, his representative alleges an absence of knowledge of language and the law. It is submitted farm workers are kept isolated from the Canadian public and not given language training.

The Commission reminded the Board of the excessive delay, the fact information was readily available to any claimant or the Agricultural Support Centre. It stressed seasonal workers receive pay stubs, tax forms and are required to file a tax return. Employment Insurance deductions appear clearly on the pay stubs. Reference is made in the file the Commission keeps electronic records of files for 11 years, making it impossible in some cases to verify relevant data.

A full review of jurisprudence was submitted for the Board’s guidance.

The Board’s Decision:

The Board found the claimant did what a reasonable person would do in his situation, made reference to his inability to communicate, his lack of familiarity with the system and unanimously allowed the appeal.

The Board does not refer to the onus resting upon the claimant to establish he qualified or the onus to prove good cause on a balance of probability.

Appeal to the Umpire:

I am asked to set aside the Board’s decision. It is submitted the question is a mixed question of fact and law, mostly legal, and the applicable standard is reasonableness with little deference.

I am reminded the delay is 14 years in one appeal and 8 years in the other.

The Commission refers to the Federal Court of Appeal decision in Shebib (A-24-01) where Rothstein J.A. said [at para. 38]:

Regrettably, it is often those who have little or no experience with employment insurance benefits and who have the best of intentions who get caught out in the maze of statutory and regulatory provisions that Parliament and the Governor in Council seem to consider necessary to prevent abuse of the employment insurance system. I accept that the applicant has acted in good faith and with the best of intentions. Unfortunately, on the present state of the law, that does not constitute good cause for entitling him to an antedating of his claim for employment insurance benefits.

Counsel also refers to the Federal Court of Appeal decision in Beaudin (A-341-04) where Létourneau J.A. stated [at paras. 5 and 6]:

[5] It is worth noting that subsection 10(4) of the Act is not the product of a mere legislative whim. It contains a policy, in the form of a requirement, which is instrumental in the sound and efficient administration of the Act. On the one hand, this policy helps "to assure the proper administration and the efficient processing of various claims" and "to enable the Commission to review constantly the continuing eligibility of a claimant to whom benefits are being paid": see CUB 18145, June 29, 1999, by Umpire Joyal, and CUB 23803, June 27, 1994, by Umpire Rouleau. Antedating the claim for benefits may adversely affect the integrity of the system, in that it gives a claimant a retroactive and unconditional award of benefits, without any possibility of verifying the eligibility criteria during the period of retroactivity: see CUB 13007, December 12, 1986, and CUB 14019, August 7, 1987, by Umpire Joyal .

[6] Furthermore, a sound and equitable administration of the system requires that the Commission engage in a quick verification that is as contemporaneous as possible with the events and circumstances giving rise to the claim for benefits: see CUB 15236A, April 30, 1987, by Umpire Strayer. Otherwise, the Commission finds itself in the difficult position of having to engage in a job or process of reconstruction of the events, with the costs and hazards pertaining to such a process. This is what explains the principle, long established by the jurisprudence of this Court, that ignorance of the Act does not excuse a delay in filing an initial claim for benefits.

Other Federal Court of Appeal decisions are consistent: Albrecht (A-172-85) and Brace, 2008 FCA 118, only to name a few.

Umpires decisions are also clear on the topic and do not favour an approach inconsistent with the legislative requirements of the subsection.

The claimant’s representative maintains the claimant acted as a reasonable person in his situation and refers to what could be misleading information on the homepage website of the Employment Insurance Commission. It is alleged the homepage refers strictly to eligibility of Canadians and permanent residents, omitting ‘temporary foreign workers’. Such an argument is somewhat vexatious when viewed in the context the claimant was unfamiliar with either of Canada’s official languages.

CUB 52237 was referred to; with deference, the facts in that decision are quite different than the facts in the present appeal. I am not bound to follow that decision, or propose to adopt it.

Analysis and Conclusion:

The Board erred in the application of the law. I find it difficult to understand how it could give the benefit of the doubt to the claimant; this is not an appropriate instance to invoke s. 49(2) of the Act.

I am asked by counsel for the claimant to abridge the delay to the date when he actually became aware of his right to apply. However, I am not given any date in particular and there is no evidence relating to that date.

I am also told the farm workers were briefed in 2009 by the Agricultural Workers Alliance; I asked when this was done during 2009 but was not supplied with a more specific month or day. Even assuming I was willing to abridge the delay, I could not do so with the available information.

I was asked to allow the claimants’ representative two months to make additional submissions relating to Mexico-Canada Program on Agricultural Workers in place at the period under examination. I am now informed no additional information will be provided; a translation is not available. Consequently, I requested to proceed without this document and issue my decision.

Having regard to the state of the law, the requirement to apply for benefits in a timely manner and the considerable delay, I am not satisfied the Board’s decision can stand. I allow the Commission appeal and confirm its original ruling.


OTTAWA, Ontario
July 15, 2011

Appendix ‘A’

Decision of G.T. (Commission Appeals)
Name of Claimant: Antedate from: Date filed:
M.B. September 24, 1990 January 16, 2010
L.T. December 11, 1998 December 11, 2009


  • English Decision (http://www.ei.gc.ca/eng/policy/appeals/cubs/70000-80000/77000-77999/77367.shtml)

Economic sectors

Agriculture and horticulture workers and General farm workers

Content types

Documented cases of abuse

Target groups


Geographical focuses

México and National relevance

Spheres of activity