Date: 20091118
Docket: A-176-09
Citation:
2009 FCA 336
CORAM: BLAIS C.J.
NOËL J.A.
TRUDEL J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
JEAN-GUY ROBERGE
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec, on November 18, 2009)
TRUDEL J.A.
[1]
This is an application for judicial review of CUB
decision No. 71960, dated February 9, 2009, by Umpire René Hurtubise, who,
like the Board of Referees, decided that Mr. Roberge had not lost his
employment because of his misconduct within the meaning of section 30 of
the Employment Insurance Act, S.C. 1996, c. 23 (the Act), and that he
was therefore not disqualified from receiving benefits. Accordingly, he
dismissed the Employment Insurance Commission’s appeal. The respondent did not
appear, nor did he file a memorandum with this Court.
[2]
Mr. Roberge was employed as a door
attendant, responsible for reception and security in a residential building. On
September 30, 2007, he was caught sleeping in a model apartment during his
shift. He was dismissed for breaching his duty of surveillance, as his employer
considered his conduct unacceptable (applicant’s record, Umpire’s file, at
page 41). Mr. Roberge admitted to the alleged facts, but in his claim
he offered various justifications for his actions.
[3]
The Board of Referees accepted the evidence that
Mr. Roberge needed to take a break for health reasons and that [translation] “despite the incongruity
of the situation, the beneficiary’s conduct did not constitute misconduct”
within the meaning of the Act (Board of Referees’ reasons, applicant’s record,
at page 56). The Umpire further noted that the door attendant position held
by the beneficiary was not particularly well paid, implying that the
consequences of the wrongful conduct should not be taken too seriously. He held
that the Board of Referees had acted within its mandate and had [translation] “exercised its (albeit limited)
discretion to analyze the situation, that is, the record and testimony, and
assess the credibility of the witness” (Umpire’s decision, applicant’s record,
at page 8).
[4]
We are of the view that the Umpire’s decision
contains errors of law justifying the intervention of this Court.
[5]
First, “the role of the Board and the Umpire is
not to determine whether the dismissal of an employee was wrongful or not, but
rather to decide whether the act or omission of the employee amounted to
misconduct within the meaning of the Act . . .” (Canada (Attorney General) v. McNamara, 2007 FCA
107, at paragraph 22).
[6]
Moreover, before deferring to the Board of
Referees’ assessment of the evidence, the Umpire must ask himself whether the
Board has correctly applied the test for misconduct. He did not do so.
[7]
In Mishibinijima v. Canada (Attorney General), 2007 FCA 36, at paragraph 14, our colleague Nadon J.A. wrote
the following:
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 [see also Canada
(Attorney General) v. Caron, 2009 FCA 141, at paragraph 5].
[8]
We find that if the Umpire had reviewed the
evidence before him with this test in mind, he would necessarily have found
that the Board of Referees had committed an error of law by asking itself the
wrong question. He would have therefore found it necessary to intervene as
requested by the Commission.
[9]
Accordingly, the application for judicial review
shall be allowed without costs, the applicant having waived them. The Umpire’s
decision shall be set aside and the matter remitted to the Chief Umpire or his
designate for redetermination on the basis that that Mr. Roberge is
disqualified from receiving any benefits because of his misconduct.
“Johanne Trudel”
Certified true
translation
Francie Gow, BCL,
LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-176-09
(JUDICIAL REVIEW OF A DECISION BY UMPIRE
RENÉ HURTUBISE, DATED FEBRUARY 9, 2009, FILE NO. CUB 71960.)
STYLE OF CAUSE: Attorney
General of Canada v. Jean-Guy
Roberge
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November
18, 2009
REASONS FOR JUDGMENT OF THE COURT BY: BLAIS
C.J.
NOËL J.A.
TRUDEL
J.A.
DELIVERED FROM THE BENCH BY: TRUDEL
J.A.
APPEARANCES:
|
Pauline Leroux
|
FOR THE APPLICANT
|
SOLICITORS OF RECORD:
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE APPLICANT
|
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