Docket: A-42-13
Citation: 2013 FCA 213
CORAM: NOËL J.A.
TRUDEL
J.A.
MAINVILLE
J.A.
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BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Applicant
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and
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Abdelsalam AHMAT DJALABI
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Respondent
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REASONS FOR JUDGMENT
NOËL
J.A.
[1]
This is an application for judicial review of a decision
rendered by Umpire L.-P. Landry (CUB 80268), who dismissed an appeal by the Canada
Employment Insurance Commission (the Commission) from the decision of a Board
of Referees allowing the appeal by Abdelsalam Ahmat Djalabi (the respondent or
claimant) against a decision by the Commission to dismiss his claim for
benefits on the grounds that he had voluntarily left his employment without
just cause within the meaning of sections 29 and 30 of the Employment
Insurance Act, S.C. 1996, c. 23 (the Act).
RELEVANT FACTS
[2]
The respondent was employed by Bell Express Vu for
seven years, until March 5, 2012. From March 6 to April 16,
2012, the respondent was incarcerated as a result of a complaint filed by his
spouse that he had uttered death threats against her. On March 8, 2012, he
received a letter from his employer informing him that his absence was
unauthorized and asking him to appear at work and justify his absence.
[3]
On March 16, 2012, while
still incarcerated, the respondent contacted his manager to explain that he had
no choice but to resign, given that he did not know when he would be released. His
manager accepted his resignation without informing him of the possibility of
requesting leave without pay.
[4]
On March 16, 2012, the respondent was
released after signing a recognizance under section 810 of the Criminal
Code, R.S.C. (1985), c. C-46 (the Criminal Code), whereby he agreed
to comply with a series of conditions, including not contacting his ex-spouse,
for one year. On April 20, 2012, he filed a claim for Employment Insurance
benefits with the Commission, which was to take effect as of April 15,
2012.
[5]
In a letter dated May 16, 2012, the
Commission informed the claimant that it was dismissing his claim on the
grounds that he had voluntarily left his employment within the meaning of the
Act, and without just cause.
[6]
The respondent appealed from the decision to the
Board of Referees.
BOARD OF REFEREES’ DECISION
[7]
According to the Board of Referees, the claimant
was not responsible for his incarceration because he was acquitted of the
charges against him (Reasons, at page 5). On the basis of this finding,
the Board of Referees held that the claimant had voluntarily left his
employment, but that he was justified in doing so in the light of all the
circumstances.
[8]
Some of the circumstances considered by the
Board of Referees were the claimant’s state of depression at the time, which diminished
his ability to [translation] “analyze events dispassionately and with all the necessary
objectivity”; the claimant’s conviction that he would be laid off if he did not
resign and that he would struggle to find new employment with a criminal
record; and his manager’s failure to offer him leave without pay, reinforcing
his impression that resigning was his only option (Reasons, at pages 4 and 5).
UMPIRE’S DECISION
[9]
The Umpire dismissed the Commission’s appeal. While
acknowledging that the Board of Referees had erred in law in finding that the
claimant had been acquitted of the offence for which he had been incarcerated, he
held that a recognizance under section 810 of the Criminal Code is equivalent to neither a
conviction nor an acquittal; at most, it means that the complainant had
reasonable grounds to fear for her safety (Reasons, at page 2).
[10]
The real issue is whether the claimant
voluntarily committed the acts that led to his incarceration, and therefore
whether he voluntarily placed himself in a situation that would prevent him
from keeping his employment (Reasons, at pages 2 and 3). In the Umpire’s view, a
recognizance is not a sufficient basis for a finding on a balance of
probabilities that the claimant voluntarily committed the acts that resulted in
his incarceration (Reasons, at page 3). The essence of his reasoning can be
found in the following excerpt (ibid.):
. . . in
the absence of evidence established on a balance of probabilities showing that
the claimant voluntarily committed acts that, consequently, prevented him from
keeping his employment, one cannot find that there was misconduct or even a
decision to voluntarily leave his employment. He was allegedly incarcerated at
that time, through no fault of his own, for reasons that were not proven.
POSITIONS OF
THE PARTIES
[11]
The applicant submits that the Umpire raised the
wrong question. He should have inquired whether [translation] “in committing the act that
led to his incarceration, did the respondent cause the risk to materialize,
justifying his exclusion from benefits under the Act” (Applicant’s Memorandum
at paragraph 34).
[12]
The applicant adds that the Board of Referees’
decision was all the more unreasonable in the light of the fact that the
claimant himself had chosen to terminate his employment out of fear of being
dismissed and having his record tainted by a criminal conviction (Applicant’s
Memorandum at paragraph 30). Such a choice does not constitute just cause
within the meaning of the Act (Applicant’s Memorandum at paragraph 31).
[13]
In any case, the Umpire had evidence showing on
a balance of probabilities that the claimant had indeed [translation] “committed wrongdoing” (Applicant’s
Memorandum at paragraph 35). On the one hand, the respondent himself is
challenging neither the fact that he uttered threats against his ex-spouse, nor
the merits of his incarceration (Applicant’s Memorandum at paragraph 37). On
the other hand, the justice of the peace would not have issued the order had he
not been at least persuaded on a balance of probabilities that threats had been
uttered (Applicant’s Memorandum and paragraph 40). The Umpire therefore
erred in finding that the evidence did not establish on a balance of
probabilities that the claimant had committed the acts that resulted in his
incarceration.
[14]
The respondent was present at the hearing before
this Court, but as he did not produce a memorandum of fact and law, he had to limit
himself to stating that he disagreed with the applicant’s position and was
seeking to have the application for judicial review dismissed.
ANALYSIS AND
DECISION
[15]
The Umpire did not mention the applicable
standard of review anywhere in his decision. In the circumstances, it is up to this
Court to determine the appropriate standard of review and to apply it by
assessing the merits of the Umpire’s decision.
[16]
In my view, the standard of correctness should
be applied to the Board of Referees’ interpretation of the scope and
implications of section 810 of the Criminal Code, since that is a
question of law beyond the scope of its specialized expertise. However, the
standard of reasonableness should be applied to the question of whether the
claimant voluntarily committed the act that resulted in his loss of employment
pursuant to section 30 of the Act, since it involves an application of the
law to the facts.
[17]
The Board of Referees held that the claimant [translation] “had been acquitted of the
charges against him” (Reasons, at page 5). The Umpire correctly held that
this finding was an error of law. He nevertheless refused to intervene on the
grounds that there was insufficient evidence to establish misconduct. In his
view, a recognizance “does not constitute evidence established on a balance of
probabilities of acts committed voluntarily by the claimant” (Reasons, at
page 3).
[18]
In reaching this conclusion, the Umpire failed
to take into account the burden of proof to be met to in order for a
recognizance order to be issued under section 810 of the Criminal Code:
to issue the order, the justice of the peace must be “satisfied by the
evidence adduced that the person on whose behalf the information was laid has
reasonable grounds for his or her fears” [emphasis added]. The degree of
persuasion required is the balance of probabilities: [translation] “The case law largely recognizes that the
burden of proof corresponding with the terms ‘satisfied’ in the English version
and ‘convaincu’ in the French
version is the balance of probabilities . . .” (R. c. Lacerte,
2011 QCCQ 2433 (CanLII) at paragraph 81).
[19]
Contrary to what the Umpire has implied, the
analysis leading to the issuance of a recognizance order is not merely
subjective, i.e., based on the perception of the informant. There is also an
objective dimension expressed by the terms “reasonable grounds”. As set out at
paragraph 52 of R. v. Budreo, [2000] O.J. No. 72 (ONCA),
. . . The
word “fear” or “fears” should not be considered in isolation but together with
the modifying words in s. 810.1(1) “on reasonable grounds.” Fear alone connotes
a state of belief or an apprehension that a future event, thought to be
undesirable, may or will occur. But “on reasonable grounds” lends
objectivity to the apprehension. In other words, the phrase “fears on
reasonable grounds” in s. 810.1(1) connotes a reasonably based sense of
apprehension about a future event, or as Then J. put it, it “equates to a
belief, objectively established, that the individual will commit an offence.” [Footnotes
omitted.]
[20]
Therefore, while it does not establish beyond a
reasonable doubt that a criminal offence has been committed, the recognizance
is not without probative value. The very fact that a recognizance order has
been issued presupposes that, on a balance of probabilities, the defendant has
engaged in conduct causing the informant to fear for her safety.
[21]
By requiring a conviction, the Umpire is
applying a much more stringent test than that required by section 30 of
the Act. According to the case law, the concept of misconduct does not require
evidence of the elements of criminal liability: “It is not necessary for a
behaviour to amount to misconduct under the Act that there be a wrongful
intent. It is sufficient that the reprehensible act or omission complained
of be made ‘wilfully’, i.e. consciously, deliberately or intentionally” (Canada
(Attorney General) v. Secours, [1995] F.C.J.
No. 210 (QL) at paragraph 2, as cited in Canada (Attorney
General) v. Pearson, 2006 FCA 199 at paragraph 15). That is, an act is
deliberate if “the claimant knew or ought to have known that the conduct was
such as to impair the performance of the duties owed to the employer and as a
result dismissal was a real possibility” (Mishibinijima v. Canada (Attorney
General), 2007 FCA 36 at paragraph 14).
[22]
Because the evidence shows, according to the
applicable standard, that the claimant’s conduct led to his incarceration and
to the loss of his employment, it follows that the Board of Referees failed to
take into account the evidence in reaching the opposite conclusion and that the
Umpire should have intervened.
[23]
For these reasons, I would allow the application
for judicial review, set aside the Umpire’s decision and refer the matter back
to the Chief Umpire or his designate for redetermination on the basis that the
Commission’s appeal must be allowed on the grounds that the claimant
voluntarily left his employment without just cause within the meaning of
sections 29 and 30 of the Act.
“Marc Noël”
“I agree.
Johanne Trudel, J.A.”
“I agree.
Robert M.
Mainville, J.A.”
Certified true
translation
Francois Brunet, Revisor
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