Date: 20091020
Docket: A-200-09
Citation:
2009 FCA 303
CORAM: NOËL J.A.
PELLETIER J.A.
TRUDEL J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
PATRICK JOLIN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Montréal, Quebec,
on October 20, 2009)
PELLETIER J.A.
[1]
This is an application for judicial review of a
decision of Judge Maximilien Polak sitting as an umpire dismissing the appeal
of the Employment Insurance Commission on the ground that the Board of Referees
had not erred in concluding that Mr. Jolin’s conduct in leaving his
workplace as he did on April 22, 2008, was not misconduct within the
meaning of section 30 of the Employment Insurance Act, S.C. 1996,
c. 23.
[2]
The respondent, Mr. Jolin, filed no
memorandum and was not present at the hearing.
[3]
The facts may be briefly summarized as follows. Mr. Jolin
was an employee at Supra formules d’affaires inc. When he arrived at work at
5:25 a.m. on April 22, 2008, the press he was to work on was
broken, and no spare parts were available. Rather than wait for his supervisor
to arrive at 7:45 a.m., he left a message for his employer stating that he
was going home because he was angry and not feeling well. The employer called him
around 10 a.m. and told him that he disagreed with Mr. Jolin’s decision
to leave the workplace. Mr. Jolin expected a suspension, but, when the
employer called him back around 5 p.m., it was to dismiss him.
[4]
Mr. Jolin made a claim for benefits, and a benefit
period was established for him. The Commission later informed him that it was
unable to pay him the benefits, as he had lost his employment because of his
misconduct. Mr. Jolin appealed that decision to the Board of Referees. The
Board of Referees allowed his appeal on the ground that the alleged conduct was
not a serious breach that would lead Mr. Jolin to believe that he could be
dismissed.
[5]
The Umpire dismissed the Commission’s appeal, stating
that he had trouble accepting or understanding [translation] “refusal to work” as a reason for dismissing an
employee with 10 years of service. In his view, the Board of Referees had
not erred in fact or in law.
[6]
The application of the definition of
“misconduct” within the meaning of the Employment Insurance Act to the
facts of this case is a question of mixed fact and law that is reviewable on
the standard of reasonableness. The Board of Referees must also stay within the
bounds of its jurisdiction, and any decision that is outside of the Board’s jurisdiction is reviewable on the standard of correctness. If the
Board of Referees exceeds its jurisdiction, the Umpire must intervene to
correct this error of law.
[7]
In Canada (Attorney General) v. Marion, [2002] F.C.J. No. 711, Justice Létourneau, writing for this
Court, noted that the Board is not authorized to determine “whether the
severity of the penalty imposed by the employer was justified or whether the
employee’s conduct was a valid ground for dismissal”. The question that the
Board must ask is whether the claimant’s conduct amounted to misconduct within
the meaning of the Act.
[8]
In this case, the Board of Referees found that
Mr. Jolin’s conduct did not justify his dismissal. It was of the opinion
that leaving the workplace did not amount to insubordination, that Mr. Jolin
was not required to remove the defective part as argued by the employer because
there were mechanics assigned to that task, and that Mr. Jolin had no
reason to believe that he could be dismissed because he had left his workplace
without authorization.
[9]
The Umpire could not accept that an employee
with 10 years of service could be dismissed because of a [translation] “refusal to work”.
[10]
In Mishibinijima v. Canada (Attorney General), [2007] F.C.J. No. 169, at paragraph 14, this Court
determined the meaning of “misconduct” for the purposes of the Act:
Thus, there will be misconduct where the conduct of a claimant was
wilful, i.e. in the sense that the acts which led to the dismissal were
conscious, deliberate or intentional. Put 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.
[11]
Here, there is no doubt that the claimant’s
conduct was wilful and that the claimant knew that this conduct could lead to
serious disciplinary consequences. In fact, he expected to be suspended. That
the disciplinary sanction was harsher than the one the claimant expected does
not mean that his conduct was not misconduct.
[12]
The Board of Referees exceeded its jurisdiction
in ruling on the justification of the claimant’s dismissal, an error that the
Umpire had to correct. Consequently, the application for judicial review will
be allowed, the Umpire’s decision set aside and the matter referred back to the
Chief Umpire or his designate for redetermination on the basis that
Mr. Jolin must be disqualified from receiving benefits because of his
misconduct within the meaning of section 30 of the Employment Insurance
Act.
“J.D. Denis Pelletier”
Certified true
translation
Tu-Quynh Trinh
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-200-09
STYLE OF CAUSE: ATTORNEY
GENERAL OF CANADA v. PATRICK
JOLIN
PLACE OF HEARING: Montréal,
Quebec
DATE OF HEARING: October 20, 2009
REASONS OF JUDGMENT OF THE COURT BY: NOËL, PELLETIER,
TRUDEL JJ.A.
DELIVERED FROM THE BENCH BY: PELLETIER J.A.
APPEARANCES:
|
Pauline Leroux
Chantal Labonté
|
FOR THE APPLICANT
|
SOLICITORS OF RECORD:
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE
APPLICANT
|
|
Véronique Coutin
St-Alphonse-de-Granby, Quebec
|
FOR THE
RESPONDENT
|
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