Date: 19981110
Docket: A-6-98
BETWEEN:
SYLVIE GAUTHIER
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
Hearing held at Ottawa, Ontario on Tuesday, November 10, 1998
Judgment delivered from the bench on Tuesday, November 10, 1998
REASONS FOR JUDGMENT OF THE COURT: DESJARDINS J.A.
Date: 19981110
Docket: A-6-98
BETWEEN:
SYLVIE GAUTHIER
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Ottawa, Ontario
on Tuesday, November 10, 1998)
DESJARDINS J.A.
[1] The claimant applied for review of an Umpire"s decision which affirmed the Board of Referees" decision that the claimant had lost her employment because of her misconduct. Subsection 30(1) of the Employment Insurance Act,1 in support of the decision, reads as follows:
30.(1) A claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause, unless . . . .
[My emphasis]
30. (1) Le prestataire est exclu du bénéfice des prestations s"il perd un emploi en raison de son inconduite ou s"il quitte volontairement un emploi sans justification, à moins, selon le cas:
...
[Je souligne]
[2] The facts are not disputed.
[3] The claimant, who had been employed as a cook at Ogilvie Villa for four years, was dismissed on July 9, 1996. According to her employer, she was dismissed on the spot because she had cooked frozen chicken in the oven, without thawing it, washing it or removing the bag containing the giblets. She had already received a warning on this issue.
[4] During her testimony before the Board of Referees, the claimant admitted to cooking frozen chicken, but added: "I had no choice, I needed it to prepare the evening meal. Mr. Lemay wanted us to thaw it in a sink filled with cold water." She admitted that her employer had warned her two and a half years before not to cook frozen chicken. At that time, she worked for the same employer, but at another location, the Queenswood Villa.
[5] The Umpire dismissed for lack of evidence the Board of Referees" first reason for their decision, namely that the act complained of was dangerous because it could affect the health of the residents. The Umpire did, however, state that he was satisfied with the soundness of the second reason, namely that the claimant had not followed her employer"s instructions.
[6] The word "misconduct" is not defined as such in the case law. It is largely a question of circumstances.2 The breach of duty must, however, be of such scope that its author could normally foresee that it would be likely to result in his or her dismissal. The Board of Referees must ask itself whether the misconduct was sufficiently serious as to constitute misconduct within the meaning of the Act.3
[7] In the case at bar, the Umpire had to consider whether the evidence before the Board of Referees concerning the incident of the frozen chicken and the explanation given by the claimant indicated a breach sufficiently serious as to constitute misconduct within the meaning of the Act. However, neither the Umpire nor the Board of Referees considered this question.
[8] The application for judicial review will accordingly be allowed with costs, the Umpire"s decision will be set aside and the matter referred back to the Chief Umpire or an umpire for redetermination.
Alice Desjardins
J.A.
Certified true translation
M. Iveson
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-6-98
STYLE OF CAUSE: Sylvie Gauthier v.
Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 10, 1998
REASONS FOR JUDGMENT OF THE COURT: (Desjardins, Décary,
Létourneau JJ.A.)
DELIVERED FROM THE BENCH BY: Desjardins J.A.
DATED: November 10, 1998
APPEARANCES:
Louis Michaud for the applicant
Jan Brongers for the respondent
SOLICITORS OF RECORD:
Louis Michaud for the applicant
Clinique juridique populaire
de Prescott et Russell Inc.
Hawkesbury, Ontario
Morris Rosenberg for the respondent
Deputy Attorney General of Canada
Ottawa, Ontario
__________________
1 S.C. 1996, c. 23.
2 Canada v. Bedell (1984), 60 N.R. 115 at p. 117 (F.C.A.).
3 Attorney General of Canada v. Michel Langlois (February 21, 1996), A-94-95 (F.C.A.).
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