Date: 20120508
Docket: A-198-11
Citation: 2012 FCA 140
CORAM: SHARLOW
J.A.
PELLETIER J.A.
STRATAS
J.A.
BETWEEN:
SURYAKANT KARELIA
Applicant
and
THE
ATTORNEY GENERAL OF CANADA, ON BEHALF OF THE MINISTER OF
HUMAN RESOURCES AND SKILLS DEVELOPMENT CANADA
Respondent
REASONS FOR JUDGMENT
PELLETIER J.A.
[1]
This
is an application for judicial review of a decision of Umpire L.-P. Landry,
dismissing an appeal from a decision of the Board of Referees (the Board) in
which the Board upheld the Canada Employment Insurance Commission’s (the
Commission) finding that Mr. Karelia lost his employment due to misconduct, and
thus was not eligible for employment insurance benefits. For the reasons that
follow, I would dismiss the application for judicial review.
[2]
Mr.
Karelia was a long time employee of an automotive dealership in Toronto, who rose in
time to the position of parts manager. One may conclude from this that he was,
for most of his career, a satisfactory employee. However, in the spring of
2009, Mr. Karelia began missing work to such an extent that in mid-August of that
year, the employer wrote him a letter setting out its dissatisfaction with his
attendance and explaining the consequences that his absenteeism was having on
the operations of the business. The last paragraph of the letter reads as
follows:
This letter will serve as
written notice that your continued absence is unacceptable and that your
continued employment with [the employer] is contingent on you attending work
and carrying out your duties in an acceptable manner. An acceptable manner
includes but is not limited to notifying [the employer] in advance of any
medically necessary absences in advance so that suitable arrangements to cover
your work duties can be made; a subsequent doctor’s certificate to support the
absence; immediate telephone notification when advance notice is not possible;
and absent medical reasons or pre-approved absences, regular on time attendance
at work.
[3]
Following
receipt of this letter, Mr. Karelia’s attendance at work was satisfactory until
December 2009 when he was again absent from work, from December 15th
to December 18th, without prior approval and for reasons that the
employer did not find particularly credible: see Respondent’s Record, p.28. As
a result, Mr. Karelia’s employment was terminated on December 16th,
2009, though he was not given the letter of termination until he returned to
the employer’s premises on December 21st, 2009. At the same time,
the employer provided Mr. Karelia with two months pay as a transitional
measure.
[4]
Mr.
Karelia’s explanation for his absence was that, for reasons that varied over
time, he had decided to drive his daughter to Buffalo, New York, on December
14th, his scheduled day off, so that she could catch a cheap flight
to England. He did not
phone ahead to reserve a ticket, as he did not believe that there would be a
problem finding a flight. As it turns out, nothing was available on the 14th
so his daughter was placed on a standby list. Nothing became available for
either December 14th or December 15th. Mr. Karelia was
however advised that a flight would be available from Kennedy airport in New York
City
on December 16th. A friend drove Mr. Karelia and his daughter to New York
City,
and she flew out on December 16th. On the way back to Buffalo to pick up
Mr. Karelia’s car, he and his friend got into a motor vehicle accident, which
left the friend’s car un-driveable. As a result, Mr. Karelia did not get back
to Toronto until
Saturday night.
[5]
Mr.
Karelia contacted a co-worker late in the evening on December 14th
to say that he would not be at work the next day. He contacted the employer on
the morning of the 15th to say that he was out of the country
arranging travel for a family member and would be in later that day. He
contacted the employer again on the 16th to say that he was still out
of the country and would return to work later that day or the next morning: see
Respondent’s Record, p. 31. The minority opinion in the Board decision
suggested that Mr. Karelia called his employer again on December 17th,
but the employer’s letter of termination does not confirm this: see
Respondent’s Record, p. 33.
[6]
When
Mr. Karelia was initially contacted by the Commission, he told the Commission
investigator that on the evening of Friday, December 11th, his
daughter had decided that she wanted to go to England to see his
family. He said there was no emergency: see Respondent’s Record, p. 29. When
he appeared before the Board, however, Mr. Karelia said that the primary reason
for the trip was for his daughter to get a medical check-up, indicating once
again that there was no emergency: see Respondent’s Record, p. 46. In his
Notice of Appeal to the Umpire, Mr. Karelia provided more information about the
circumstances surrounding his daughter’s trip. He wrote:
My brother who lives in
England called me on Sunday Dec. 13 and asked me to rush my daughter to England because this special
priest/doctor/guru will be in England for that week and he could
arrange a special appointment with him to take my daughter. We believed that
once my daughter sees this priest she will be healed / relieved of many of her
conditions.
[7]
There
is no indication in the record as to whether the events described in this
Notice of Appeal were the subject of evidence before the Umpire.
[8]
Following
his termination, Mr. Karelia applied to the Commission for unemployment
insurance. The Commission denied Mr. Karelia’s claim for benefits on the basis
that he had lost his employment due to his own misconduct and was therefore
disqualified from receiving benefits pursuant to s. 30 of the Employment
Insurance Act, S.C. 1996, c. 23. Mr. Karelia appealed to the Board. After
setting out the facts, the Board referred to this Court’s decision in Canada
(A.G.) v. Tucker, [1986] 2 F.C. 329, [1986] F.C.J. No. 203, as authority
for the proposition that misconduct must be wilful, deliberate, or so reckless
that it approaches wilfulness. Applying this proposition to the facts of the
case, the majority of the Board found that Mr. Karelia jeopardized his
employment by making the deliberate decision to leave for Buffalo on his day
off without giving himself more time, if needed, to get his daughter on a
flight. In the view of the majority, this amounted to a wilful disregard for
the employer’s policy, which I take to mean the conditions imposed on Mr. Karelia
in August 2009 by the employer following his absenteeism.
[9]
The
minority opinion of the Board found that the extenuating circumstances were
such that Mr. Karelia’s actions did not amount to wilful or reckless conduct.
The dissenting member found that Mr. Karelia was justified in waiting in Buffalo for a
standby flight and then driving to Kennedy airport to catch a flight there. In
his view, Mr. Karelia, a twenty-seven year employee, “had no conclusive
concerns that his job was in jeopardy”: Board Decision, File No. 054-025, p.
12.
[10]
Mr.
Karelia appealed to the Umpire, who upheld the majority’s decision.
[11]
The
Umpire reviewed the facts and found that there was no reason to intervene. No
error of law had been shown and the evidence supported the Board’s factual
conclusions. He rejected submissions made on Mr. Karelia’s behalf suggesting
that extenuating circumstances should have led to a less severe penalty. The
Umpire pointed out that the severity of the penalty is not a relevant
consideration when determining whether conduct amounts to misconduct under s.
30 of the Employment Insurance Act.
[12]
The
standard of review that applies to an Umpire’s decision is correctness on
questions of law, and reasonableness with respect to the application of the law
to the facts: see Canada (Attorney General) v.
Lemire,
2010 FCA 314, [2010] F.C.J. No. 1429 [Lemire] at para. 8, MacNeil v. Canada (Employment
Insurance Commission), 2009 FCA 306, [2009] F.C.J. No. 1358 at para.
20 [MacNeil]. The determination of the standard to be applied by the
Umpire to the Board’s decision is a legal question, and as such, is reviewable
by this Court on a standard of correctness: see Lemire, cited above, at
para. 9, MacNeil, cited above, at para. 20.
[13]
In
this case, the Umpire correctly identified and applied the standard of review.
[14]
Counsel
for Mr. Karelia argued that the factual discrepancies between the Board’s
decision and the Umpire’s decision were such that the Umpire should have
returned the matter to the Board for another decision. In particular, he
focussed on the Board’s conclusion that the daughter’s trip was not an
emergency while the Umpire, according to counsel, recognized the urgent nature
of the trip due to Mr. Karelia’s brother’s phone call on Sunday evening.
[15]
In
my view, the Board made no error in relying on Mr. Karelia’s own evidence to
the effect that there was no emergency. If Mr. Karelia had evidence of other
facts that the Board ought to have considered, his remedy was under s. 120 of
the Employment Insurance Act, which provides:
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120.
The
Commission, a board of referees or the umpire may rescind or amend a decision
given in any particular claim for benefit if new facts are presented or if it
is satisfied that the decision was given without knowledge of, or was based
on a mistake as to, some material fact.
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120. La Commission, un conseil
arbitral ou le juge-arbitre peut annuler ou modifier toute décision relative
à une demande particulière de prestations si on lui présente des faits
nouveaux ou si, selon sa conviction, la décision a été rendue avant que soit
connu un fait essentiel ou a été fondée sur une erreur relative à un tel
fait.
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[16]
Whether
the Board would have entertained a motion for reconsideration under this
section on the basis of information that Mr. Karelia had in his possession all
along is another question.
[17]
However
the Umpire did not err in failing to intervene with respect to the Board’s
finding of fact on this point.
[18]
Counsel
for Mr. Karelia also argued that this case is different from those where a claimant’s
dismissal was due to blameworthy conduct such as alcoholism, use of illicit
drugs, or selling contraband cigarettes: see for instance Lemire, cited
above, at para. 17, Canada (Attorney General) v.
Bigler,
2009 FCA 91, [2009] F.C.J. No. 365 at paras. 7-8, Canada (Attorney General)
v. Marion, 2002 FCA
185, [2002] F.C.J. No. 711 at paras. 2-3. He claimed that the conduct at the
root of Mr. Karelia’s dismissal was blameless, in that it was nothing more than
a father’s desire to do what was necessary for his family. As such, it should
not be deemed wilful misconduct. With respect, this distinction is beside the
point. The relevant conduct is the conduct related to one’s employment. The
Board found that Mr. Karelia conducted himself in a manner that showed wilful
disregard for the employer’s conditions regarding his attendance at work, and
this led to his dismissal. There is ample evidence to support this conclusion.
Moreover, the cases cited to us from other tribunals interpreting other
statutory definitions of “misconduct” are of limited utility, as we are bound
by the jurisprudence that has been developed by this Court. The Umpire
therefore committed no error by failing to intervene.
[19]
Finally,
counsel argued that the Board and the Umpire erred in treating Mr. Karelia as
though he had been dismissed for just cause, and letting this impact on the
finding that he had engaged in wilful misconduct. Counsel suggested that the
fact that Mr. Karelia was paid two months salary upon termination, and the absence
of progressive discipline pointed away from dismissal for just cause.
[20]
It
is not the function of the employment insurance system to make determinations
about whether an employee has been dismissed for just cause. The only issue in
this case is whether Mr. Karelia lost his employment by reason of his own
wilful misconduct so as to disqualify him from the receipt of benefits. The
jurisprudence is clear that misconduct and just cause for dismissal are
distinct concepts: Canada (Attorney General) v.
McNamara,
2007 FCA 107, [2007] F.C.J. No. 364 at para. 22, Fakhari v. Canada (Attorney
General),
[1996] F.C.J. No. 653, 197
N.R. 300
at para. 3, Canada (Attorney General) v. Jewell, [1994]
F.C.J. No. 1584, 175 N.R. 350 at paras. 6-7. The jurisprudence dealing with
misconduct is substantially more unforgiving than the jurisprudence dealing
with just cause. As a result, the arguments made with respect to just cause
are not relevant when considering whether an applicant engaged in wilful
misconduct with the meaning of the Employment Insurance Act.
[21]
For
all of these reasons, I would dismiss the appeal.
"J.D.
Denis Pelletier"
“I
agree.
K.
Sharlow J.A.”
“I
agree.
David Stratas J.A.”
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