Date: 20111017
Docket: A-440-10
Citation:
2011 FCA 284
CORAM: BLAIS C.J.
PELLETIER J.A.
MAINVILLE J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
CAROL BERGERON
Respondent
REASONS FOR JUDGMENT
BLAIS C.J.
[1]
This is an application for judicial review filed
by the Attorney General of Canada against a decision of the Umpire dated
September 23, 2010, in favour of Carol Bergeron. In his decision, the
Umpire found that it was reasonable for the Board of Referees, considering the
evidence, to conclude that the respondent’s conduct was not voluntary.
[2]
I would allow the Attorney General’s appeal.
RELEVANT
FACTS
[3]
Starting in summer 1977, the respondent received
repeated warnings because of his frequent unjustified absences from work. These
absences began in the month of July 2007 and continued until the end of
November 2008.
[4]
It appears from the file that on November 26, 2008, a psychiatrist diagnosed
the respondent with major depression, as stated in the medical certificate, but
nevertheless set the date for his return to work at December 1, 2008, just
four days later.
[5]
The respondent therefore went back to work on December 5, 2008, but the absenteeism
problem resurfaced when the employer was unable to reach the respondent on
December 30, 2008, and between January 2 and 4, 2009, to set his work
schedule. This time, he was warned that he could be dismissed if he continued to
be absent from work without a valid reason. Finally, the respondent again
failed to report for work, twice, without authorization or valid reason, in the
month of January. On February 3, 2009, the respondent showed up for work late and was dismissed that same
day.
[6]
After making an initial claim for regular
benefits with the Employment Insurance Commission (Commission), the respondent
was given a benefit period starting March 15, 2009.
[7]
In his claim for benefits, the respondent admits
that he was dismissed because of his repeated absences, adding that he was
called back to work on January 6, 2009, and informed that he had to report
to his employer or be subject to dismissal.
[8]
In accordance with the usual procedures, the
Commission contacted the employer for details on the circumstances giving rise
to the dismissal. The employer’s representative confirmed the respondent’s
numerous absences from work and the escalating series of warnings and
suspensions between July 2007 and February 3, 2009, the day the
respondent was dismissed.
[9]
The respondent confirmed the employer’s version
to the Commission. He stated that he had acted this way because of his divorce,
with which he had been unable to cope, and that he had missed work on several
occasions because of his personal problems. On May 11, 2009, the
Commission informed the respondent that it could not pay him Employment
Insurance regular benefits from March 15, 2009, the beginning of the established benefit period, since he had lost
his employment on February 3, 2009, because of his own misconduct. The
Commission told the respondent that he could contact the Commission if he wished
to inquire about his eligibility for special sickness benefits.
[10]
The respondent did not attend his appeal hearing
before the Board of Referees and did not adduce any new evidence regarding the
facts.
[11]
The respondent’s representative filed a medical
report, dated November 26, 2008, by a psychiatrist, the same one who, it
will be recalled, had diagnosed the respondent with major depression and had
recommended a return to work four days later, on December 1, 2008.
[12]
On June 17, 2009, the Board of Referees
allowed the respondent’s appeal. According to the Board, the respondent’s
actions were neither wilful nor deliberate, since the employer was aware of the
medical evidence of major depression and had not contradicted it.
[13]
On September 23, 2010, the Umpire dismissed
the Commission’s appeal on the basis that it was not up to him to substitute
his own findings of fact for those of the Board of Referees when the Board’s
findings were not unreasonable and were supported by the evidence.
ANALYSIS
[14]
All of the parties agree on the chronology of
events, and the employer and the respondent appear to agree on the grounds for
the respondent’s dismissal.
[15]
When the respondent made his claim for benefits
in March 2009, he simply stated that he had been dismissed for repeated
absenteeism. He said nothing about his major depression.
[16]
In fact, there was no mention of the diagnosis
of [translation] “major depression” until the respondent’s representative raised it
before the Board of Referees. The diagnosis stated that no follow-up by a
specialist was required and that the respondent could return to work four days
later, that is, on December 1, 2008.
[17]
There is no evidence or testimony to the effect
that after the return to work in December 2009, the respondent fell back
into the state of major depression on which the Board of Referees relied to
arrive at its conclusions.
[18]
In its decision, the Board of Referees clearly
stated as follows, at page 3:
[translation]
The issue that the Board of Referees must consider is whether or not
the claimant lost his employment because of his own misconduct under
sections 29 and 30 of the Employment Insurance Act.
For the alleged conduct to constitute misconduct within the meaning
of section 30 of the Act, it must be wilful or deliberate or so reckless
as to approach wilfulness. There must also be a causal relationship between the
misconduct and the dismissal.
In the present case, the claimant was dismissed because he had
problems with absenteeism from work.
[19]
In my view, up to this point, the Board
correctly understood its fact-finding role.
[20]
However, the Board of Referees continued its
analysis as follows:
[translation]
At the hearing, the claimant’s representative filed a medical
certificate stating that the claimant had been suffering from major depression
since the month of November 2008. His employer was therefore aware of this
fact.
Given this medical evidence, which was not contradicted by the
employer, the Board of Referees finds that the claimant’s conduct was not
wilful or deliberate. The alleged conduct had to be wilful or deliberate or so
reckless as to approach wilfulness (Tucker A-381-85).
The claimant did not lose his employment because of his own
misconduct within the meaning of the Act.
[21]
It can only be concluded that the Board of
Referees gave the medical certificate a much broader interpretation than it
truly has. In reality, this medical report accompanied a claim for Employment
Insurance benefits for an absence from work in the month of November 2008.
Although Dr. Rupert Lessard refers to major depression in his diagnosis,
he describes the seriousness of the condition as [translation] “medium”, adding that the respondent’s inability to work stems
from his family/marital problems. Later on, he states that no further
consultations have been scheduled, and that the patient will be referred to a
family doctor, not a psychiatrist, and will be fit to return to work four days
later, on December 1, 2008.
[22]
In my view, the employer did not have to
contradict or respond to the medical evidence because the back-to-work date had
been set and the respondent did in fact return to work.
[23]
Clearly, the Board of Referees found that this
diagnosis, even though it provided for a return to work on December 1, 2008, could lead to the
conclusion that the claimant was still suffering from the major depression
diagnosed in November 2008 and that the medical certificate proved that
the respondent’s conduct was neither wilful nor deliberate.
[24]
In my view, this is not an inference made from
the evidence but rather speculation as to the true significance of the
document; the Board found that even though the medical certificate called for a
return to work on December 1, 2008, the respondent’s major depression
persisted in the months that followed. In my opinion, the Board of Referees
erred in giving the medical certificate such an overly broad interpretation.
[25]
Although an appellate court rarely considers
questions of fact, there can be no doubt that in the present case, there is a complete
lack of evidence, and that extending the medical certificate for three months
after the period specified in it is wholly unreasonable.
[26]
In the absence of any evidence whatsoever, it
was not open to the Board of Referees to find that the claimant had not lost
his employment because of his own misconduct within the meaning of the Act.
[27]
On appeal, the Umpire noted the dubious nature
of the Board of Referees’ finding of fact but concluded that it was not up to
him to substitute his own finding of fact for that of the Board.
[28]
In dismissing the appeal, the Umpire adopted the
Board of Referees’ error in fact, giving the medical certificate of November 26, 2008, a much broader
interpretation. In the Umpire’s view, it was open to the Board of Referees to
find that the respondent’s absences in January 2009 were concomitant with his
major depression.
[29]
In my opinion, the Umpire had a duty to
intervene and quash the decision of the Board of Referees.
[30]
The case law since Tucker is very clear: an
act is deliberate where it is done consciously, wilfully or intentionally. As
Justice Nadon wrote in Mishibinijima,
. . . [p]ut another way, there will be misconduct where the claimant
knew or ought to have known that his conduct was such as to impair the
performance of the duties owed to his employer and that, as a result, dismissal
was a real possibility.
(Mishibinijima v. Canada (Attorney General), 2007 FCA 36,
paragraph 14, page 414)
[31]
The facts in this case are crystal clear. The
evidence in the record shows that the respondent received several verbal and
written warnings for his repeated unauthorized absences over the months and
weeks leading up to his dismissal.
[32]
The respondent was aware that his numerous
absences were unacceptable. He met with his union and his employer to discuss
his personal problems and try to find a way to correct his absenteeism. The
Umpire had a duty to make sure that the Board of Referees had correctly applied
the legal test for determining whether or the misconduct was wilful. The Umpire
should have found that the evidence did not support the respondent’s argument
and the respondent had lost his employment because of his misconduct.
[33]
Our Court therefore has no choice but to
intervene and allow the application for judicial review, quash the decision of
the Umpire and refer the matter back to the Chief Umpire or his designate for
redetermination on the basis that the respondent shall be excluded from
receiving benefits because of his own misconduct within the meaning of
section 30 of the Employment Insurance Act.
“Pierre Blais”
“I agree,
J.D. Denis Pelletier J.A.”
“I agree,
Robert M. Mainville J.A.”
Certified true
translation
Michael Palles
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