A-24-01
2003 FCA 88
Thomas Allan Shebib (Applicant)
v.
The Attorney General of Canada (Respondent)
Indexed as: Shebib v. Canada (Attorney General) (C.A.)
Court of Appeal, Stone, Rothstein and Pelletier JJ.A.-- Halifax, November 7, 2002; Ottawa, February 18, 2003.
Employment Insurance -- Two issues before F.C.A. upon judicial review of Umpire's decision: (1) whether qualifying period extended by severance payment; (2) whether good cause established for delay in claiming E.I. benefits -- Necessity for 665 hours in 52-week qualifying period -- Had just 444 -- Claim rejected -- Judicial review application denied -- Relevant provisions of Act, Regulations considered -- Earnings interrupted when terminated -- 11 months' severance payments not earnings for s. 14(1) purposes -- No basis under Act, s. 8(3) to extend qualifying period -- S. 35(6) of Regulations not ultra vires for conflict with Act, s. 8(3) -- Act, s. 54, gave Commission regulation-making power -- By Regulations s. 35(6), Commission excluded earnings in s. 36(9) (including severance payments) from definition of earnings to find interruption thereof under s. 14(1) -- Presumption of coherence (principle of statutory construction) applied -- Purpose of Act, s. 8(3) as remedial legislation -- S. 35(6) of Regulations eliminated problem s. 8(3) enacted to cure -- S. 35(6) also requiring claims be filed immediately on termination -- Severance payment properly allocated in accordance with s. 36(9) -- Not a labour arbitration matter dealt with by s. 36(11) -- Act, s. 10(4) excuses delay where good cause demonstrated -- Test what reasonable, prudent person would, in circumstances, have done -- Case law holding not to file claim whilst job seeking not good cause for delay -- Nor is reliance on legal advice -- Commission wants to know as soon as person unemployed to assess employment availability, job-seeking efforts -- That applicant, inexperienced in making EI claims, acted in good faith of no avail.
Construction of Statutes -- Apparent conflict between provisions in Employment Insurance Act -- Presumption of coherence: statutory provisions intended to work together logically, rationally -- Presumption enactment not containing contradictions, inconsistencies -- Purpose of Act, s. 8(3) remedial in nature -- Extended qualifying period -- Regulations s. 35(6) eliminated problem s. 8(3) enacted to cure, had further purpose to require claim filed immediately on termination -- Conflict resolved by concluding s. 8(3) operating only when necessary.
Two issues were before the Court of Appeal upon this application for the judicial review of an Umpire's decision denying employment insurance (EI) benefits: (1) did the allocation of applicant's severance payment extend his qualifying period; and (2) if not, had he established good cause for the delay in claiming benefits?
Applicant, an engineer, was terminated on June 5, 1998. He was given a severance payment of $70,000 representing 11 months' earnings for allocation purposes under the Employment Insurance Act. It was not until April 9, 1999 that he filed a claim for EI benefits. To establish a benefits claim, applicant needed 665 hours in the 52-week qualifying period. Based on the date of filing, the Commission ruled that he had but 444 hours of insurable employment within the qualifying period. Thus, his claim was rejected. Applicant then requested that his claim be antedated to June 8, 1998 and explained that he could not collect E.I. benefits until 11 months after his termination on account of the severance payment allocation and that he had expected to secure employment within that period. The Commission, however, ruled that he had failed to demonstrate good cause for the delay.
Held, the application should be dismissed.
Under the provisions of the statute, since applicant did not apply until April 9, 1999, his benefit period began only on the Sunday of the week of April 9, 1999 and the qualifying period had to be calculated on the preceding 52 weeks. Applicant argued, relying on Act, subsection 8(3), for an extension of his qualifying period in view of his severance payment allocation. To determine whether that provision avails to the applicant's benefit, reference had to be made to the Employment Insurance Regulations, subsection 36(9) of which provides that all earnings payable to a claimant upon lay-off or separation must be allocated to the number of weeks beginning with the week that the worker was let go. Subsection 35(6) provides, however, that the earnings referred to in subsection 36(9) may not be taken into account in determining an interruption of earnings. Thus, under subsection 35(6), an interruption of earnings did occur at the time of applicant's termination. His 11 months of severance payments were not earnings for subsection 14(1) purposes. The allocation of his severance payment did not prevent the establishment of an interruption of earnings at the time of termination. There was no basis, under Act, subsection 8(3), for an extension of his qualifying period.
Applicant further submitted that subsection 35(6) of the Regulations is ultra vires as in conflict with Act, subsection 8(3). Under Act, section 54, the Commission is granted regulation-making authority. It was by subsection 35(6) of the Regulations that the Commission chose to exclude earnings referred to in subsection 36(9) (including severance payments) from the definition of earnings for purposes of finding an interruption of earnings under subsection 14(1). The Court could agree with applicant that this regulatory provision has the effect essentially of rendering Act, subsection 8(3) inoperable. But the definition of "interruption of earnings" in Act, subsection 2(1) provides that the timing and circumstances of an interruption of earnings is to be determined by regulation. That subsection and the grant of regulation-making authority--paragraph 54(u)--contain no limitation.
The conflict was between Act, subsection 8(3) on the one hand and the definition of "interruption of earnings" in subsection 2(1) and the regulation-making authority in paragraph 54(u) of the Act on the other. In the construction of statutes there is a presumption of coherence: provisions of a statute are intended to work together logically and rationally and an enactment is presumed not to contain contradictions and inconsistencies. The purpose of subsection 8(3) of the Act is to protect claimants by ensuring that those receiving monies for a complete severance can include in their qualifying period the hours worked in the 52 weeks prior to being terminated. This subsection was remedial in nature since, under the provisions prior to its enactment, claimants receiving severance payments were prevented from including all of the hours worked in the 52 weeks prior to termination. Subsection 8(3) extended the qualifying period by, in effect, adding the 52 weeks before termination to the allocation period to determine the qualifying period. But subsection 35(6) of the Regulations eliminated the problem that subsection 8(3) was enacted to cure. However, subsection 35(6) had the further effect of requiring that claims be filed immediately upon termination whether or not the person was receiving separation payments. The conflict was to be resolved by holding that subsection 8(3) operates only when necessary, that is, when allocation of earnings payable upon complete severance postpone the date of interruption of earnings.
Yet another argument advanced was that the severance payment should be allocated in accordance with subsection 36(11) rather than 36(9). But subsection 36(11) refers to payments made under a labour arbitration award or in settlement of a dispute that could have gone to arbitration and applicant conceded this not to be a labour arbitration matter. He suggested, however, that he could have complained to Nova Scotia's Labour Standards Tribunal. Having worked for four years, he was entitled to two weeks' severance pay under the provincial Labour Standards Code. But, under the Code, eight weeks' severance is the maximum award and, given that applicant received 11 months' severance, it could not be said that his severance payment was in settlement of an award that could have been made by the Tribunal. Applicant's earnings were indeed those contemplated by subsection 36(9).
Subsection 10(4) excuses the failure to make a timely benefits claim if applicant is able to demonstrate good cause for the delay up to the date the claim was filed. The Umpire said that the test was whether claimant demonstrated having done what a reasonable and prudent person would have done in the circumstances. Ignorance of the law might constitute good cause so long as claimant was able to establish that he had acted as a reasonable and prudent person. In the Umpire's estimation, that test had not been met. This court has held that not to claim EI benefits whilst seeking a new job, laudable as it may be, does not justify delay, and that reliance upon legal advice is not good cause. In any event, the advice in this case was not that applicant ought not file a claim but rather that he would not be entitled to receive benefits until the end of the period of severance payment allocation. The Commission wants to know as soon as a person becomes unemployed so it can ascertain the person's employment availability and monitor efforts to secure a new job.
Nor could applicant's suggestion that previous decisions of this Court were bad law be accepted. Courts of intermediate appellate jurisdiction follow their prior decisions other than in exceptional circumstances.
It might be observed that it is those who have no experience with having recourse to EI benefits that tend to get caught out by the maze of provisions apparently considered necessary to prevent abuse of the system. That applicant acted in good faith does not avail him as the law stands.
statutes and regulations judicially
considered
Employment Insurance Act, S.C. 1996, c. 23, ss. 2(1) "interruption of earnings", 8, 10(1), 54(s),(u).
| Employment Insurance Regulations, SOR/96-332, ss. 14(1), 35(6), 36(9),(11). |
| Labour Standards Code, R.S.N.S. 1989, c. 246, s. 72(1). |
| Unemployment Insurance Act, R.S.C., 1985, c. U-1, s. 7(3). |
cases judicially considered
referred to:
Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; (1992), 88 D.L.R. (4th) 1; [1992] 2 W.W.R. 193; 84 Alta. L.R. (2d) 129; 3 Admin. L.R. (2d) 1; 7 C.E.L.R. (N.S.) 1; 132 N.R. 321; Murphy v. Welsh; Stoddard v. Watson, [1993] 2 S.C.R. 1069; (1993), 106 D.L.R. (4th) 404; 18 C.C.L.T. (2d) 101; 18 C.P.C. (3d) 137; 47 M.V.R. (2d) 1; Canada (Attorney General) v. Smith (1993), 153 N.R. 317 (F.C.A.); Canada (Attorney General) v. Ehman (1996), 193 N.R. 391 (F.C.A.); Miller v. Canada (Attorney General), 2002 FCA 370; [2002] F.C.J. No. 1375 (C.A.) (QL).
authors cited
Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed. Toronto: Butterworths, 2002.
APPLICATION for judicial review of the decision of an Umpire under the Employment Insurance Act that the allocation of a severance payment did not extend the qualifying period and that applicant had failed to establish good cause for his delay in claiming benefits. Application denied.
appearances:
David G. Coles and Kenneth A. MacLean for applicant.
Scott E. McCrossin for respondent.
solicitors of record:
Boyne Clarke, Dartmouth, Nova Scotia, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
Rothstein J.A.:
ISSUES
[1]This is an application for judicial review of a decision of an Umpire under the Employment Insurance Act, S.C. 1996, c. 23. The Umpire dismissed the applicant's appeal [Shebib (In re) (1999), CUB 50050]. There are two issues:
1. Does the allocation of the applicant's severance payment extend his qualifying period; and
2. If it does not, has the applicant established that he had good cause for his delay in claiming employment insurance benefits.
FACTS
[2]The applicant is an engineer. His employment was terminated on June 5, 1998. He received a severance payment of $70,000, the equivalent of 11 months' earnings for allocation purposes under the Employment Insurance Act. He did not file a claim for employment insurance benefits until April 9, 1999.
[3]At the relevant time, the applicant required 665 hours in the 52-week qualifying period in order to establish a claim for benefits. Based upon the date when he filed his claim for benefits, April 9, 1999, the Commission found that the applicant only had 444 hours of insurable employment during the qualifying period. On April 30, 1999, the Commission denied the applicant's claim for benefits because he did not have sufficient hours of insurable employment.
[4]The applicant filed a request with the Commission that his claim be antedated to June 8, 1998. If it was antedated, the 52-week qualifying period would have included the 52 weeks before he was terminated and he would have had approximately 2,700 hours of insurable employment in the qualifying period. He explained his delay on the basis that he could not collect employment insurance benefits until the expiry of 11 months following his termination due to the allocation of his severance payment and further, he expected to be employed within that time period.
[5]By letter dated May 12, 1999, the Commission informed the applicant that his claim for benefits would not be antedated because he did not show that he had good cause for delay in filing his claim for benefits.
[6]The applicant's appeal to the Board of Referees was dismissed, as was his subsequent appeal to the Umpire.
ANALYSIS
Issue 1 Does the allocation of the applicant's severance payment extend his qualifying period?
[7]Subsection 8(1) of the Act defines the qualifying period as the 52-week period immediately before the beginning of a benefit period:
8. (1) Subject to subsections (2) to (7), the qualifying period of an insured person is the shorter of
(a) the 52-week period immediately before the beginning of a benefit period under subsection 10(1), and
(b) the period that begins on the first day of an immediately preceding benefit period and ends with the end of the week before the beginning of a benefit period under subsection 10(1).
[8]Subsection 10(1) of the Act provides that a benefit period begins on the later of the Sunday of the week in which the interruption of earnings occurs and the Sunday of the week in which the initial claim for benefits is made. Subsection 10(1) provides:
10. (1) A benefit period begins on the later of
(a) the Sunday of the week in which the interruption of earnings occurs, and
(b) the Sunday of the week in which the initial claim for benefits is made.
Therefore, because the applicant did not apply for benefits until April 9, 1999, his benefit period did not begin until the Sunday of the week of April 9, 1999. His qualifying period was calculated as the 52-week period immediately before the Sunday of the week of April 9, 1999, during which period he only had 444 hours of insurable employment.
[9]Relying upon subsection 8(3) of the Act, the applicant argues that his qualifying period should be extended. He says that the allocation of his severance payments, namely the 11-month period following his termination, should be taken into account for purposes of extending his qualifying period. Subsection 8(3) of the Act provides:
8. . . .
(3) A qualifying period mentioned in paragraph (1)(a) is extended by the aggregate of any weeks during the qualifying period for which the person proves, in such manner as the Commission may direct, that
(a) earnings paid because of the complete severance of their relationship with their former employer have been allocated to weeks in accordance with the regulations; and
(b) the allocation has prevented them from establishing an interruption of earnings.
[10]If the applicant is correct, his qualifying period would be 52 weeks plus 11 months (say 44 weeks) for a total of 96 weeks prior to the Sunday of the week of April 9, 1999. That would have the effect of including in his qualifying period the 52 weeks prior to June 5, 1998, when he was actually working. As indicated above, during that 52-week period, the applicant had approximately 2,700 hours of insurable employment and would clearly qualify for employment insurance benefits.
[11]In order to determine if subsection 8(3) avails to the benefit of the applicant, it is necessary to have regard to the Employment Insurance Regulations, SOR/96-332. Subsection 36(9) provides that all earnings paid or payable to a claimant by reason of a lay-off or separation, including severance payments, should be allocated to the number of weeks that begins with the week of the lay-off or separation. Subsection 36(9) provides:
36. . . .
(9) Subject to subsections (10) and (11), all earnings paid or payable to a claimant by reason of a lay-off or separation from an employment shall, regardless of the nature of the earnings or the period in respect of which the earnings are purported to be paid or payable, be allocated to a number of weeks that begins with the week of the lay-off or separation in such a manner that the total earnings of the claimant from that employment are, in each consecutive week except the last, equal to the claimant's normal weekly earnings from that employment.
However, subsection 35(6) provides that the earnings referred to in subsection 36(9) are not earnings which are to be taken into account for purposes of determining an interruption of earnings. Subsection 35(6) provides:
35. . . .
(6) Notwithstanding subsection (2), the earnings referred to in subsection 36(9) are not earnings to be taken into account for the purposes of section 14.
Subsection 14(1) of the Regulations defines when an interruption of earnings takes place:
14. (1) Subject to subsections (2) to (7), an interruption of earnings occurs where, following a period of employment with an employer, an insured person is laid off or separated from that employment and has a period of seven or more consecutive days during which no work is performed for that employer and in respect of which no earnings that arise from that employment, other than earnings described in subsection 36(13), are payable or allocated.
[12]Therefore, by reason of subsection 35(6), an interruption of earnings did occur at the time of the applicant's termination. The applicant was laid off, he performed no services, and the 11 months of severance payments that the applicant received were not earnings for the purposes of subsection 14(1). The allocation of the applicant's severance payment did not prevent the establishment of an interruption of earnings at the time of termination. According to these regulatory provisions, there is no basis for an extension of his qualifying period under subsection 8(3) of the Act.
[13]The applicant alternatively argues that subsection 35(6) of the Regulations conflicts with subsection 8(3) of the Act and is, therefore, ultra vires.
[14]Section 54 of the Act grants the Commission the authority to make regulations. In particular, paragraphs 54(s) and (u) of the Act read:
54. The Commission may, with the approval of the Governor in Council, make regulations
. . .
(s) defining and determining earnings for benefit purposes, determining the amount of those earnings and providing for the allocation of those earnings to weeks or other periods;
. . .
(u) defining and determining the circumstances in which and the time at which an interruption of earnings occurs;
[15]Subsection 2(1) of the Act anticipates that regulations will be made pursuant to paragraph 54(u):
2. (1) In this Act,
. . .
"interruption of earnings" means an interruption that occurs in the earnings of an insured person at any time and in any circumstances determined by the regulations; [Emphasis added.]
[16]The Commission, by subsection 35(6) of the Regulations, excluded earnings referred to in subsection 36(9) of the Regulations, including severance payments, from the definition of earnings for the purposes of finding an interruption of earnings under subsection 14(1) of the Regulations. By virtue of paragraph 54(u) of the Act, the Commission had the requisite power to make subsection 35(6) of the Regulations.
[17]Nonetheless, the applicant argues that subsection 35(6) is ultra vires because it, in effect, reads subsection 8(3) out of the Act. I agree with the applicant that the effect of subsection 35(6) essentially renders subsection 8(3) of the Act inoperable. The earnings referred to in subsection 8(3) are included in the earnings referred to in subsection 36(9). I say "essentially . . . inoperable", because severance payments referred to in subsection 36(11) may still be considered in determining when an interruption of earnings occurs, although subsection 36(11) appears to contemplate an extremely narrow and infrequent circumstance.
[18]As indicated, the definition of "interruption of earnings" in subsection 2(1) of the Act provides that the timing and circumstances of an interruption of earnings is to be determined by the regulations. Paragrpah 54(u) of the Act confers that regulation-making authority on the Commission. To find subsection 35(6) ultra vires is to read the definition in subsection 2(1) and the regulation-making authority in paragraph 54(u) as containing limitations not included in their words. That is because a finding of ultra vires would have the effect of preventing the making of a regulation that excludes allocated earnings payable by reason of a lay-off or separation from affecting the time of an interruption of earnings. Such a limitation is not found in the definition in subsection 2(1). Nor is it found in the regulation-making authority in paragraph 54(u).
[19]The conflict to be resolved, therefore, is not between subsection 8(3) of the Act and subsection 35(6) of the Regulations, but between subsection 8(3) of the Act on the one hand and the definition of "interruption of earnings" in subsection 2(1) and the regulation-making authority in paragraph 54(u) of the Act on the other.
[20]I start with the presumption of coherence: the different provisions of the statute are intended to work together logically and rationally; and an enactment is presumed not to contain contradictions and inconsistencies. In R. Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworths, 2002), Sullivan states at pages 262-263:
It is presumed that the provisions of legislation are meant to work together, both logically and teleologically, as parts of a functioning whole. The parts are presumed to fit together logically to form a rational, internally consistent framework; and because the framework has a purpose, the parts are also presumed to work together dynamically, each contributing something toward accomplishing the intended goal.
The presumption of coherence is also expressed as a presumption against internal conflict. It is presumed that the body of legislation enacted by a legislature does not contain contradictions or inconsistencies, that each provision is capable of operating without coming into conflict with any other.
In support of the presumption of coherence, Sullivan cites a number of Supreme Court of Canada decisions, e.g. Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at page 38; Murphy v. Welsh; Stoddard v. Watson, [1993] 2 S.C.R. 1069, at page 1079.
[21]The purpose of subsection 8(3) of the Act is to create a safeguard for claimants to ensure those who are in receipt of earnings paid because of a complete severance are able to include in their qualifying period the hours they worked in the 52 weeks prior to their termination. As I understand the legislative history, subsection 8(3) (previously subsection 7(3), [Unemployment Insurance Act] R.S.C., 1985, c. U-1) was enacted when, under the legislative scheme in place at that time, the allocation of earnings paid because of complete severance, e.g. severance pay, had the effect of postponing the time at which an interruption of earnings was deemed to occur. A claimant in receipt of a severance payment could not demonstrate an interruption of earnings until the period of allocation of severance pay had expired. This created situations in which the 52-week qualifying period, calculated as the 52-week period prior to the interruption of earnings, would largely be the allocation period. As a result, claimants could find themselves with fewer than the required number of qualifying hours to receive unemployment insurance benefits. This was not because they had not worked the required number of hours. Rather, it was because the legislative scheme prevented them from including all of the hours worked in the 52 weeks prior to termination.
[22]Subsection 8(3) has the effect of extending the qualifying period so that, in effect, the 52 weeks prior to termination are added to the allocation period for the purpose of determining the qualifying period. In this way, hours actually worked in the 52-week period prior to termination would be taken into account in calculating the claimant's qualifying hours. That is the purpose of subsection 8(3).
[23]However, the extension of the qualifying period under subsection 8(3) was no longer necessary once subsection 35(6) of the Regulations was brought into force. Subsection 35(6) excluded from the determination of the time of interruption of earnings, earnings received as a result of lay-off or separation from employment. Therefore, the time of the interruption of earnings occurred at, or within a few days after termination and, the 52-week qualifying period would be the 52 weeks prior to termination. This eliminated the problem which subsection 8(3) was enacted to cure.
[24]However, subsection 35(6) also had the effect of requiring individuals to make their claims for employment insurance benefits immediately after they were terminated, regardless of whether they received earnings as a result of separation or lay-off. Provided they made their claims in a timely way, their qualifying period would be the 52 weeks prior to termination.
[25]How, then, is the definition of "interruption of earnings" in subsection 2(1) and the regulation-making authority to determine the timing and the circumstances in which an interruption of earnings occurs in paragraph 54(u), to be reconciled with subsection 8(3)? Because of its purpose of safeguarding claimants, I am of the view that the safeguard provided by subsection 8(3) must be considered to operate only when it is necessary, that is, when allocation of earnings payable by reason of a complete severance postpone the date of interruption of earnings. Where, under the regulatory scheme, allocation does not postpone the date of interruption of earnings, subsection 8(3) does not have to operate.
[26]In other words, to read the definition in subsection 2(1), the authority in paragraph 54(u) and subsection 8(3) coherently and consistently, subsection 8(3) must be read in a manner so as to recognize that regulations may make its operation unnecessary. If subsection 8(3) commenced with the words "Subject to Regulations made pursuant to the definition of `interruption of earnings' in subsection 2(1) and the regulation-making authority in paragraph 54(u) of the Act", there would be no conflict. However, the definition in subsection 2(1) and paragraph 54(u) have this implicit effect. A coherent reading of the definition in subsection 2(1), paragraph 54(u) and subsection 8(3) requires this interpretation. This does not involve adding words to the statute. Rather, it only gives voice to Parliament's implicit intention. See Murphy v. Welsh; Stoddard v. Watson, supra, at page 1078.
[27]In retrospect, there is no doubt the legislative and regulatory scheme could have been more clearly drafted. However, the duty of the Court is to resolve apparent conflicts in statutes and in my view, the interpretation I have given to the relevant provisions does so.
[28]For these reasons, I am unable to agree with the applicant's argument that subsection 35(6) is ultra vires.
[29]The applicant further argues that his severance payment was one to which subsection 36(11) applied. Subsection 36(11) provides:
36. . . .
Where earnings are paid or payable in respect of an employment pursuant to a labour arbitration award or the judgment of a tribunal, or as a settlement of an issue that might otherwise have been determined by a labour arbitration award or the judgment of a tribunal, and the earnings are awarded in respect of specific weeks as a result of a finding or admission that disciplinary action was warranted, the earnings shall be allocated to a number of consecutive weeks, beginning with the first week in respect of which the earnings are awarded, in such a manner that the total earnings of the claimant from that employment are, in each week except the last week, equal to the claimant's normal weekly earnings from that employment.
The applicant, therefore, says that his severance payment should be allocated in accordance with subsection 36(11) rather than subsection 36(9). Since subsection 35(6) only refers to earnings under subsection 36(9), he should not be disentitled to an extension of his qualifying period under subsection 8(3) of the Act.
[30]The applicant conceded that a labour arbitration award is not relevant here. However, he argues that he could have complained to the Labour Standards Tribunal of Nova Scotia under subsection 71(2) of the Labour Standards Code, R.S.N.S. 1989, c. 246. Under subsection 72(1) of the Labour Standards Code, an employee cannot be laid off without being given a certain minimum severance pay, depending upon the length of the period of employment that preceded the layoff. The applicant worked about four years, which would have made him eligible for a severance payment of two weeks, under the Labour Standards Code. Even if he had worked for ten years or more, the Tribunal could only award him eight weeks of severance. Because he actually received 11 months' severance, it is obvious that his severance payment was not in settlement of an award that might have been made by the Labour Standards Tribunal of Nova Scotia. In addition, there is no evidence of the type of disciplinary action referred to in subsection 36(11). Subsection 36(11) does not apply to the applicant. The earnings in question are those referred to in subsection 36(9).
Issue 2 Did the applicant establish that he had good cause for his delay in claiming employment insurance benefits?
[31]The applicant argues that he had good cause for delay in filing his claim for benefits. Subsection 10(4) of the Act provides:
10. . . .
(4) An initial claim for benefits made after the day when the claimant was first qualified to make the claim shall be regarded as having been made on an earlier day if the claimant shows that the claimant qualified to receive benefits on the earlier day and that there was good cause for the delay throughout the period beginning on the earlier day and ending on the day when the initial claim was made.
[32]The Umpire's reasons on this point state:
In order to establish "good cause" for the delay in filing his claim, a claimant must demonstrate that he or she did what a reasonable and prudent person would have done in the same circumstances, either to clarify the situation regarding their employment or to determine their rights and obligations under the Act. Each case must be judged on its own facts and to this extent no clear and easily applicable principle exists (Malitsky v. Canada (A.G.), A-205-96, September 3, 1997 (F.C.A.); Canada (A.G.) v. Albrecht, (1985) 1 F.C. 710 (F.C.A.)). To demonstrate good cause, it is not necessary for a claimant to show that there were circumstances over which he had no control and which prevented him from making a claim at an earlier date. The correct test is whether the claimant can demonstrate that he did what a reasonable and prudent person would have done in the same circumstances (Canada (A.G.) v. Ehman, A-360-95, February 9, 1996 (F.C.A.). In addition, good cause may also include circumstances in which it is reasonable for a claimant to consciously delay in making a claim for benefits (Canada (A.G.) v. Gauthier, A-1789-83, October 9, 1984 (F.C.A.)). Even though ignorance of the law does not constitute "good cause", it does not necessarily preclude a finding of good cause. Many reasons, including ignorance of the law, may still constitute good cause, provided the claimant is able to establish that he acted as a reasonable and prudent person (Canada (A.G.) v. Caron (1986), 69 N.R. 132 (F.C.A.)).
The Umpire concluded that the applicant did not meet the good cause test.
[33]The applicant says he intended to find new employment and not claim employment insurance benefits. He also says his lawyer advised him that he would not be entitled to receive employment insurance benefits during the 11-month severance pay allocation period and he inferred that he did not need to make a claim until the time when he would be entitled to receive employment insurance benefits.
[34]The Umpire relied on applicable jurisprudence in his assessment of whether the applicant had good cause for delay. Indeed, this Court has found that, as laudable as it might be, an intention not to claim employment insurance benefits and seek alternative employment is not good cause for delay. See Canada (Attorney General) v. Smith (1993), 153 N.R. 317 (F.C.A.), at pages 318-319. Nor is reliance on legal advice considered to be good cause. See Canada (Attorney General) v. Ehman (1996), 193 N.R. 391 (F.C.A.). In any event, in this case, the legal advice the applicant received was only that he would not be entitled to employment insurance benefits until the end of the period of the allocation of the severance payment. It is not suggested that his lawyer advised him not to file his claim for employment insurance benefits upon termination.
[35]The applicant says there is no need to apply for employment insurance benefits until an individual is ready to make a claim and, as reasonable as that sounds, it is not in accordance with the jurisprudence. Nor is it in accordance with the general approach of the Commission that it should know when a person becomes unemployed so that it has the opportunity to find out about an individual's availability for employment and his or her activity to find a new job as soon as unemployment occurs.
[36]The applicant also says that employment insurance deductions were wrongly taken from his severance pay. While that may be the case, I do not see how that fact gives him good cause for delay.
[37]Finally, the applicant says the jurisprudence that would deny his good cause arguments was wrongly decided. Save in exceptional circumstances, courts of intermediate appellate jurisdiction follow their prior decisions. The Court is responsible for the stability, consistency and predictability of the law. In order to establish that the Court should overrule its prior jurisprudence, it is insufficient to only argue that the prior jurisprudence was wrongly decided. There must be grounds to overrule prior jurisprudence. The applicant has not argued any such grounds in this case (Miller v. Canada (Attorney General), 2002 FCA 370; [2002] F.C.J. No. 1375 (C.A.) (QL)).
[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.
[39]I would dismiss the application for judicial review. I would make no order as to costs.
Stone J.A.: I agree.
Pelletier J.A.: I agree.