HM v Canada Employment Insurance Commission

HM v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2024-08-08 Neutral citation 2024 SST 1103 Reference number GE-24-2315 Member Teresa Day Division General Division Decision Appeal dismissed Related decisions SST - HM v Canada Employment Insurance Commission - 2024 SST 1102 - 2024-09-16 - Appeal Division Subjects EI - Benefit period - Backdating (antedating) initial claim Decision Content Citation: WM v Canada Employment Insurance Commission, 2024 SST 1103 Social Security Tribunal of Canada General Division – Employment Insurance Section Decision Appellant: H. M. Respondent: Canada Employment Insurance Commission Decision under appeal: Canada Employment Insurance Commission reconsideration decision (667230) dated May 31, 2024 (issued by Service Canada) Tribunal member: Teresa M. Day Type of hearing: Teleconference Hearing date: August 6, 2024 Hearing participant: Appellant Decision date: August 8, 2024 File number: GE-24-2315 On this page Decision Overview Issue Analysis Conclusion Decision [1] The appeal is dismissed. [2] The Appellant hasn’t proven he had good cause for his delay in applying for employment insurance (EI) sickness benefits. In other words, he hasn’t given an explanation the law accepts. This means his application can’t be treated as though it was made on the earlier date he asked forFootnote 1. Overview [3] The Appellant applied for EI sickness benefits on November 2, 2023Footnote 2. He asked to have his claim antedated so it could start as of August 29, 2021 to coincide with when he stopped working due to a workplace injury. [4] This is called antedating a claim. The law says you must show good cause for your delay in applying for benefits if you wish to have your claim antedated to start on an earlier dateFootnote 3. [5] The Appellant said he was waiting for his WSIBFootnote 4 benefits to be approved because the WSIB plan pays more than the EI plan. He applied for EI benefits after his WSIB benefits were denied and he’d exhausted all appeals for his WSIB claim. [6] The Respondent (Commission) denied his antedate request. It said he didn’t prove he had good cause for his delay in applying lateFootnote 5. [7] The Appellant asked the Commission to reconsider. He said he was undergoing treatment for his injury and appealing the denial of his WSIB benefits because WSIB offers higher benefits. He also said he didn’t have a representative to assist and guide him to take steps to apply for EI benefits. [8] The Commission maintained the denial of his antedate request and the Appellant appealed that decision to the General Division of the Social Security Tribunal (Tribunal). [9] I must decide if the Appellant has proven he had good cause for his delay in applying for sickness benefits. He must show good cause throughout the entire periodFootnote 6 of his two-year delay, from August 29, 2021 (the day he wants his sickness benefits to start) until November 2, 2023 (the day he actually applied for sickness benefits). [10] The Appellant is asking to be paid sickness benefits from September 3, 2021 to May 14, 2022Footnote 7. He says he had good cause for not applying for benefits until November 2, 2023 because he continued to fight for his WSIB benefits (which offered a higher payment) until he received the final decision in January 2024. He also didn’t have a representative to assist him in securing EI benefits and needs financial support. [11] The Commission says he didn’t have good cause for his delay because he didn’t act like a reasonable person in his situation would have to verify his rights and obligations. It says a reasonable person would have contacted Service Canada to ask about how and when to apply for EI benefits and wouldn’t have consciously delayed their application for 2 years. [12] I find the Appellant hasn’t proven he had good cause for his delay, which means his claim cannot be antedated. This decision explains why. Issue [13] I must decide whether the Appellant’s application for EI benefits can be treated as if it had been made on August 29, 2021. In other words, I must decide if his initial claim for sickness benefits can be antedated to August 29, 2021. Analysis [14] The Appellant must prove 2 things to have his claim for EI benefits antedatedFootnote 8, namely: a) that he had good cause for the delay during the entire period of the delay; and b) that he qualified for benefits on the earlier day. [15] To prove good cause, the Appellant must show he acted as a reasonable and prudent person would have acted in similar circumstancesFootnote 9. In other words, he has to show he acted reasonably and carefully just as anyone else would have if they were in a similar situation. [16] And he has to show this for the entire period of the delayFootnote 10. [17] The period of the Appellant’s delay is the 26 months (just over 2 years) between August 29, 2021 (the day he wants his claim for sickness benefits to start) and November 2, 2023 (the day he actually applied for EI benefits). [18] The Appellant must also show he took reasonably prompt steps to understand his entitlement to EI benefits and obligations under the lawFootnote 11. This means he has to show he tried to learn about his rights and responsibilities as soon as possible and as best he could. If he didn’t take these steps, then he must show there were exceptional circumstances that explain why he didn’t do soFootnote 12. [19] The Appellant must prove it is more likely than not that he had good cause for his delay in applying for EI benefitsFootnote 13. Has the Appellant shown good cause for the whole of his delay? Short answer: [20] No, he has not. The evidence: [21] The Appellant told the Commission that: He delayed applying for EI benefits because he was hoping to get WSIB benefits but was not approvedFootnote 14. WSIB pays 85% of his wages for loss of earnings due to injury, which is more than EI, so it made no sense for him to apply for EI while he was appealing the WSIB decisionFootnote 15. He received “a lot” of denial letters rejecting his WSIB claim and was always appealingFootnote 16. He also got a lawyer. He didn’t know EI benefits were an option, and never asked anyone about them even though he has a family and desperately needed money to support themFootnote 17. Although there was information about the availability of EI benefits in the WSIB decisions he was appealing, he chose to wait for approval from WSIB because that option paid most of his wagesFootnote 18. He became aware of EI benefits in September or October 2023, but chose not to apply for EI because he would have received more money from WSIBFootnote 19. Since WSIB offers a higher benefit, so he kept fighting for it until January 2024, when he got the final decisionFootnote 20. He didn’t have a representative to assist him in securing EI benefitsFootnote 21. He didn’t call or visit Service Canada to enquire about applying for EI benefitsFootnote 22. [22] At the hearing, the Appellant testified that: He came to Canada in January 2020. His wife and children are still “at home” in Ghana and he has to support them. He started working as a “sorter” at X in September 2020. A year later, on September 2, 2021, he was injured on the jobFootnote 23. He took a short sick leave starting on September 3, 2021. After that, whenever he felt better, he’d come back to work. The employer reported the injury to WSIB “right away”, but his claim was rejectedFootnote 24. He didn’t know his rights when he was injured. He spoke with his union, but they didn’t provide him with a representative. The union told him that WSIB benefits were paid at 85% of lost wages. As a person earning minimum wage, he needed everything he could get, so he decided to fight for WSIB benefits. In July 2022, he hired a lawyer to appeal WSIB’s decision to deny his benefits and to help him get workplace accommodations from the employer. This has cost him “a lot of money”. He’s never been “entirely off work”, which is why his Record of Employment (at GD3-15) shows earnings in every pay period except for one. He was always at work “on and off”, as he was “fit”. He would work, but then he could be off a day or 2, or a week or 2 because the employer wouldn’t give him suitable work, and this would aggravate his injury. The employer continues to have him to work as a sorter. But he’s not physically able to do this work anymore, so after a while he has to go off work again. He’s still fighting the employer for workplace accommodations appropriate for his medical condition. He thinks he learned about the EI program in September 2023 – about 2 months before he applied. Prior to that, he had no knowledge of EI. In November 2023, he called Service Canada to see if he could get “Ontario Works” benefits. Service Canada said, “No”, but told him to apply for EI benefits. He applied for EI benefits on November 2, 2023 because he was about to start a period of sick leaveFootnote 25, was 3 months in arrears on his rent, and still had no WSIB to cover his lost wages. He felt he had “no options”. He started receiving EI benefits in November 2023, but he wants sickness benefits for the days between August 29, 2021 and May 14, 2022 when he was unwell and had to take time off because of his injuryFootnote 26. In December 2023, his doctor declared his injury to be “permanent”. In January 2024, WSIB paid him a small lump sum for “non-economic loss”, but said he was not entitled to anything for loss of wages. This decision ended his appeals. By then, he was in arrears for his lawyer’s fees and his lawyer took half of this WSIB payment. If he’d known about EI benefits sooner, he wouldn’t have had to take out high-interest loans and live off his credit cards to survive. He’s in dire financial need and asks the Tribunal to consider everything he’s been through since he was injured on the job and how his injury has affected his ability to work. [23] I asked the Appellant why he didn’t apply for EI benefits or contact Service Canada for information as soon as he became aware of the EI program in September 2023? He answered: He now knows the decision letters he was receiving from WSIB had information about EI and other benefits programs. But he never read those letters in their entirety – he just read the part that set out the decision on his appeal. So he didn’t see the additional information about EI benefits in the communications from WSIB. He never asked his lawyer about EI benefits or any other form of financial support because his lawyer was just hired for the WSIB appeals. He had to pay his lawyer from his meagre earnings and didn’t want to be charged for “extra work”. But after he found out about the EI program, there were 3 reasons he still didn’t apply for benefits: i. He didn’t intend to stay in his job as a “sorter” at X. Prior to coming to Canada he obtained his MBA and gained work experience as a banker. His goal is to become a financial advisor. He didn’t want to apply for EI benefits because, “you cannot be on EI and give financial advice to people. Your finances have to be good.” ii. He was under the impression that being on EI could hinder his chances of being hired in another job. He got this impression from his first job in Canada, when he worked at a call centre. iii. He decided to continue fighting for WSIB because it would pay 85% of the wages he lost due to his injury. This was more than he could get on EI, and he needed everything he could get to support his family and pay his debts. [24] I accept the Appellant’s testimony as credible. It was given in a manner that was forthright and direct, and it is consistent with the statements he made to the Commission in support of his antedate request and during the reconsideration process. And when I questioned him for additional details, he answered spontaneously and sincerely. My findings: [25] I find the Appellant has not proven he had good cause for his delay in applying for EI benefits. The Appellant didn’t behave as a reasonable person would have in similar circumstances. [26] During the 2-year period of the Appellant’s delay, he was medically unable to work full-time, his claim for WSIB to cover his loss of earnings due to injury was repeatedly denied, and he was incurring the expense of a lawyer to appeal his WSIB claim and obtain workplace accommodations from the employer. He had no other sources of income. He had a family to support and was falling behind on his rent. [27] A reasonable person in these circumstances would have investigated other options for benefits while their appeal with WSIB was under review – especially if their WSIB claim was denied on numerous occasions and after every appeal. [28] When the Appellant was injured on September 2, 2021, it was reasonable for him to wait a month or two to see if his WSIB claim would be approved. But after that, a reasonable person would have realized the need to investigate and pursue EI benefits in the alternative, even if EI paid at a lower rate. This is especially true when the WSIB decision letters specifically identified the EI program as an alternative source of financial support when WSIB is denied. [29] A reasonable person in the Appellant’s situation would have taken steps to contact Service Canada and/or go online to research the EI program and/or apply for EI benefits within 2 months of their WSIB claim first being denied. [30] The Appellant testified that he received the first rejection letter from WSIB approximately 1 month after he was injured (in other words, sometime in the first week of October 2021). So a reasonable person would have taken steps by the first week of December 2021. [31] Yet the appellant waited nearly 2 years from that point – without taking any steps to apply for benefits or research the EI program or contact the Commission to enquire about his eligibility, the application process, or the deadlines for applying. And the last 2 months of his delay were after he became aware of the EI programFootnote 27. [32] A reasonable and prudent person wouldn’t have waited 2 years to investigate their eligibility and entitlement to EI sickness benefits. Especially if their earnings were dropping because they continued to have periods when they were medically unable to work and their claim for WSIB was denied. [33] Had the Appellant done some basic online research on Service Canada’s website or contacted Service Canada by phone or in person and made enquiries within 2 months of his WSIB claim first being denied, he could have applied for EI sickness and received payments starting from thenFootnote 28. [34] His failure to do so means he did not act as a reasonable person in his situation would have throughout the period of his delay. The Appellant didn’t take reasonably prompt steps to understand his entitlement to EI benefits and his obligations under the law. [35] The courts have said this is a requirement for an antedateFootnote 29. [36] The Appellant testified that If he’d known about EI benefits sooner, he wouldn’t have had to take out high-interest loans and live off his credit cards to survive. He is essentially arguing that if he’d known about the existence of the EI program, he would have applied sooner. [37] This doesn’t excuse the Appellant from his personal responsibility to find out about EI benefits. [38] It was incumbent on him to verify his rights with Service Canada as soon as possible and as best he could. Yet he waited 2 years after becoming medically unable to work full-time, without once contacting Service Canada or researching on the EI website – or even asking his lawyer about EI or any other benefits program. This was not trying to learn about his rights as best he could. [39] The courts have said that good faith and ignorance of the law do not in themselves constitute a valid reason to justify the delay in applying for EI benefitsFootnote 30. [40] A reasonable and prudent person would have contacted Service Canada within 2 months of their WSIB claim first being denied to learn about the EI program, how to apply and the deadlines for applying. By failing to do so, the Appellant was not trying to learn about his rights as best he could. [41] This means he hasn’t proven he took reasonably prompt steps to understand his right to claim EI benefits and the rules for doing so, as is required for an antedate. There was nothing preventing the Appellant from contacting Service Canada throughout the period of his delay. [42] I see no evidence the Appellant was prevented from contacting Service Canada or applying for EI benefits online. [43] The Appellant testified that he worked when he was medically able to do so, and then took time off when he was medically unable to work. He was able to pursue a lengthy appeal process for his WSIB claim and engage and instruct a lawyer to assist him in those efforts. So he could have contacted Service Canada by phone or in person prior to November 2, 2023. [44] He also could have simply gone online to Service Canada’s website and submitted an application, which is neither difficult nor time consuming. [45] Even after he became aware of the EI program in September 2023, he made a deliberate choice not to contact Service Canada or apply onlineFootnote 31 while he continued to pursue his WSIB appeal. [46] None of these things are special circumstances that explain why the Appellant didn’t take steps to understand his rights and obligations under the EI Act. What do my findings mean for the Appellant? [47] The Appellant must prove he had good cause throughout the entire period of his delay in applying for EI benefits. This means he must show he acted as a reasonable person in his circumstances would have and that he took reasonably prompt steps to understand his rights and obligations during the period of the delay – or that there were exceptional circumstances which prevented him from doing so. [48] I have found the Appellant hasn’t satisfied any part of this test for the entire period of his delay. This means his claim for EI sickness benefits cannot be antedatedFootnote 32. [49] It also means he’s not entitled to receive EI benefits during the period of his delay, starting from August 29, 2021 and continuing to November 11, 2023Footnote 33. [50] I acknowledge the Appellant has experienced significant health issues and financial difficulties since being injured on the job on September 2, 2021. [51] But the Supreme Court of Canada has said I must follow the law, even if the outcome seems unfairFootnote 34. This means I can’t make an exception for the Appellant, no matter how compelling his circumstances may be. And I don’t have jurisdiction to direct the Commission to pay him EI benefits he’s not entitled to. [52] However, nothing in this decision prevents him from receiving EI benefits on the claim he established as of November 12, 2023. Conclusion [53] The Appellant is not entitled to antedate his claim for EI benefits. This is because he hasn’t proven he had good cause for his delay in applying for sickness benefits throughout the entire period of the delay. [54] This means his claim cannot be treated as though it was made on the earlier date he requested. [55] The appeal is dismissed. Footnotes Footnote 1 Section 10(4) of the Employment Insurance Act (EI Act) uses the term “initial claim” when talking about an application. Footnote 2 The Appellant was able to establish a claim starting from November 12, 2023 (see GD4-1). The Appellant applied for EI benefits on November 2, 2023 but, according to his Record of Employment, he was paid until November 11, 2023 – so the Commission started his claim as of November 12, 2023. Footnote 3 See section 10(4) of the EI Act. Footnote 4 Workplace Safety and Insurance Board Footnote 5 See the decision letter at GD3-29. Footnote 6 See Canada (Attorney General) v Burke, 2012 FCA 139. Footnote 7 See GD2-6. See also GD3-30 and GD3-31. I note that this is a period of 36 weeks, which is more than the maximum number of weeks of sickness benefits allowed by law. The maximum entitlement for EI sickness benefits on a claim starting as of September 3, 2021 (the day the Appellant wants his benefits to start) is 15 weeks. The maximum entitlement on a claim starting as of November 2, 2023 (the day the Appellant actually applied for benefits) is 26 weeks. Footnote 8 See section 10(4) of the EI Act. Footnote 9 Canada (Attorney General) v Burke, 2012 FCA 139. Footnote 10 Canada (Attorney General) v Burke, 2012 FCA 139. Footnote 11 Canada (Attorney General) v Somwaru, 2010 FCA 336; Canada (Attorney General) v Kaler, 2011 FCA 266. Footnote 12 Canada (Attorney General) v Somwaru, 2010 FCA 336; Canada (Attorney General) v Kaler, 2011 FCA 266. Footnote 13 The Appellant has to prove good cause on a balance of probabilities. This means he must prove it is more likely than not. Footnote 14 See his Antedate request at GD3-18. Footnote 15 See the Antedate review interview at GD3-19. Footnote 16 See GD3-19. Footnote 17 See GD3-19. Footnote 18 See the Antedate review interview at GD3-27. Footnote 19 See reconsideration interview at GD3-33. Footnote 20 See Request for Reconsideration at GD3-30. Footnote 21 See GD3-30. Footnote 22 See GD3-33. Footnote 23 The Appellant said he sustained back injuries and still has “a dislocated spine and a disc bulge”. Footnote 24 The Appellant referred to the WSIB rejection letter he provided to the Commission (see GD3-20 to GD3-26) and said he received this letter approximately 1 month after his injury. Footnote 25 On the Appellant’s application he said he was on sick leave from October 27 to December 12, 2023 (see GD3-6 to GD3-7). Footnote 26 The Appellant acknowledges he worked at various points during this period but says there were also times when he was unable to work. He is asking to be paid sickness benefits for those times. Footnote 27 The Appellant testified that he became aware of the EI program in September 2023. His application for EI Benefits was filed on November 2, 2023. Footnote 28 The Appellant would have been required to declare any earnings during the periods he was fit and worked, and these earnings would have been allocated against his sickness benefits to reduce his entitlement. Footnote 29 See Canada (Attorney General) v Somwaru, 2010 FCA 336; and Canada (Attorney General) v Kaler, 2011 FCA 266. The courts have also repeatedly held that ignorance of the law is not good cause for a delay, nor is reliance on unverified information or assumptions: see Canada (Attorney General) v Kaler, 2011 FCA 266, Canada (Attorney General) v Trinh, 2010 FCA 335, and Canada (Attorney General) v Rouleau, A-4-95. Footnote 30 See footnote 29 above. See also Albrecht, A-172-85; Larouche, A-644-93; Carry 2005 FCA 367 and Mauchel, 2012 FCA 202. Footnote 31 For the 3 reasons he testified about (which I have set out in paragraph 23 above). Footnote 32 I don’t need to determine whether the Appellant qualified for EI benefits on the earlier date (August 29, 2021). If he doesn’t have good cause, his application can’t be treated as though it was made earlier. Footnote 33 This is because November 12, 2023 is the effective date of the claim established on the application the Appellant submitted November 2, 2023. See also footnote 2 above. Footnote 34 See Granger v Canada (CEIC), [1989] 1 SCR 141.