Date: 20080505
Docket: A-337-07
Citation: 2008 FCA 159
CORAM: DESJARDINS
J.A.
NOËL
J.A.
BLAIS J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
YOLANDE HALLÉE
Respondent
REASONS FOR
JUDGMENT
BLAIS J.A.
[1]
This
is an application for judicial review of CUB decision No. 68404 dated May
31, 2007, by the Umpire.
The Umpire dismissed the appeal of the Employment
Insurance Commission (the Commission) on the basis that the respondent did not
lose her employment by reason of her own misconduct within the meaning of
section 30 of the Employment Insurance Act, S.C. 1996, c. 23 (the
Act).
[2]
Let us
briefly review the sequence of events relevant to the case:
-
The
employer dismissed the respondent after she made a third mistake in
administering medication in compliance with the employer’s policy.
-
In its
December 5, 2006, decision, the Board of Referees (the Board) allowed the
respondent’s appeal because it was not satisfied that the respondent’s actions
constituted misconduct, given the working conditions and the respondent’s state
of stress and fatigue. The Board stated that it understood [TRANSLATION] “how
such an error could occur, without concluding that it was misconduct”.
-
Regarding
the fact that it was indeed the third consecutive mistake, the Board allowed
the respondent’s argument that the first two mistakes should not have been
considered as they had occurred over a year beforehand.
-
On
May 31, 2007, the Umpire dismissed the Commission’s appeal of the Board’s
decision, concluding that the Board had made no error warranting his
intervention, as the working conditions and the respondent’s state of stress
and fatigue could have led the Board to conclude that there had been no
misconduct within the meaning of the Act and that the error had not been
deliberate.
[3]
RELEVANT STATUTORY PROVISIONS
|
Disqualification
— misconduct or leaving without just cause
30.
(1) A claimant is
disqualified from receiving any benefits if the claimant lost any employment
because of their misconduct or voluntarily left any employment without
just cause, unless
(a) the claimant has, since losing or leaving the
employment, been employed in insurable employment for the number of hours
required by section 7 or 7.1 to qualify to receive benefits; or
(b) the claimant is disentitled under sections 31 to 33
in relation to the employment.
…
Appeal to umpire
115. (1) An appeal as of right to an umpire from a
decision of a board of referees may be brought by
(a) the
Commission;
(b) a claimant
or other person who is the subject of a decision of the Commission;
(c) the employer
of the claimant; or
(d) an
association of which the claimant or employer is a member.
Grounds of appeal
(2) The only
grounds of appeal are that
(a) the board of
referees failed to observe a principle of natural justice or otherwise acted
beyond or refused to exercise its jurisdiction;
(b) the board of
referees erred in law in making its decision or order, whether or not the
error appears on the face of the record; or
(c) the board of
referees based its decision or order on an erroneous finding of fact that it
made in a perverse or capricious manner or without regard for the material
before it.
117. An umpire may decide any question of law or fact
that is necessary for the disposition of an appeal and may
(a) dismiss the
appeal;
(b) give the
decision that the board of referees should have given;
(c) refer the
matter back to the board of referees for re-hearing or re-determination in
accordance with such directions as the umpire considers appropriate; or
(d) confirm,
rescind or vary the decision of the board of referees in whole or in part.
|
Exclusion : inconduite ou départ sans
justification
30. (1)
Le prestataire est exclu du bénéfice des prestations s’il perd un emploi
en raison de son inconduite ou s’il quitte volontairement un emploi sans
justification, à moins, selon le cas :
a) que, depuis qu’il a perdu ou quitté cet emploi, il
ait exercé un emploi assurable pendant le nombre d’heures requis, au titre de
l’article 7 ou 7.1, pour recevoir des prestations de chômage;
b) qu’il ne
soit inadmissible, à l’égard de cet emploi, pour l’une des raisons prévues
aux articles 31 à 33.
…
Appel à un
juge-arbitre
115. (1) Toute décision d’un conseil
arbitral peut, de plein droit, être portée en appel devant un juge-arbitre
par la Commission, le prestataire, son employeur, l’association dont le
prestataire ou l’employeur est membre et les autres personnes qui font
l’objet de la décision.
Moyens d’appel
(2) Les seuls
moyens d’appel sont les suivants :
a) le conseil
arbitral n’a pas observé un principe de justice naturelle ou a autrement
excédé ou refusé d’exercer sa compétence;
b) le conseil
arbitral a rendu une décision ou une ordonnance entachée d’une erreur de
droit, que l’erreur ressorte ou non à la lecture du dossier;
c) le conseil
arbitral a fondé sa décision ou son ordonnance sur une conclusion de fait
erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des
éléments portés à sa connaissance.
117. Le juge-arbitre peut trancher toute question de
droit ou de fait pour statuer sur un appel; il peut rejeter l’appel, rendre
la décision que le conseil arbitral aurait dû rendre, renvoyer l’affaire au
conseil arbitral pour nouvelle audition et nouvelle décision conformément aux
directives qu’il juge indiquées, confirmer, infirmer ou modifier totalement
ou partiellement la décision du conseil arbitral.
|
ANALYSIS
[4]
As
the Board's decision makes clear, the Board chose not to take the respondent’s
two previous errors into account, on the ground that the collective agreement
provided for their exclusion.
[5]
The
existence of three consecutive errors was shown at all steps of the case, both
in the documents filed in evidence and by the respondent's own admission.
[6]
The
argument to the effect that this major part of the evidence could be excluded
based on the provisions of the collective agreement is without merit, as it was
the Board’s duty to examine all the evidence submitted, and excluding two
previous errors is an error in law.
[7]
Moreover,
the fact that the respondent gave the wrong medication to a resident despite
the fact that the resident told her that it was not her usual medication; that
the respondent, by her own admission, noticed that it was not the usual
medication, yet did not check the information on the dosette; that the resident
had to be taken to hospital; and that it was the third time that the respondent
made such a significant error demonstrates unequivocally that the respondent’s
conduct was so reckless as to approach wilfulness.
[9]
The
conditions for applying section 30 of the Employment Insurance Act,
which deals with misconduct, have been the subject of many decisions by our
Court. Canada
(Attorney General) v. Brissette, [1994] 1 F.C. 684, states:
It is true,
as counsel for the respondent contends, and as it was expressed in Tucker
(supra), that in order for the conduct in question to constitute misconduct
within the meaning of section 28 of the Act, it must be wilful or deliberate or
so reckless as to approach wilfulness.…
…
The
respondent was risking the loss of his driver's licence and thus his job by
driving after consuming a quantity of alcohol that exceeded the allowable
limit: he knowingly and deliberately caused the risk to occur.
…
… the fact
that what is done might constitute misconduct under subsection 28(1) does not
mean, however, that it necessarily results in disqualification from receiving
unemployment insurance benefits. There must, first, be a causal relationship
between the misconduct and the dismissal.…
…
In addition
to the causal relationship, the misconduct must be committed by the employee
while he or she was employed by the employer, and must constitute a breach of a
duty that is express or implied in the contract of employment (Canada
(Attorney General) v. Nolet, F.C.A., A-517-91, March 19, 1992).
[10]
In Bellefleur
v. Canada (Attorney General), 2008 FCA 13, [2008] F.C.J. No. 42,
Létourneau J.A. explained at paragraph 3:
A
Board of Referees must justify its determinations. When it is faced with
contradictory evidence, it cannot disregard it. It must consider it. If it
decides that the evidence should be dismissed or assigned little or no weight
at all, it must explain the reasons for the decision, failing which there is a
risk that its decision will be marred by an error of law or be qualified as
capricious.
[11]
The Board
ignored some fundamental evidence, namely, the two previous errors in
administering medication. If it had taken the two previous errors into account,
as it should have done, it would have reached only one conclusion,
specifically, that the claimant was dismissed by reason of her own misconduct.
The employer’s policy was clear. Hence, the error in law. To that effect, see Wiebe
Door Services Ltd. v. M.N.R. (1986), 5 W.W.R. 450, paragraph 26.
[12]
For his
part, the Umpire erred in dismissing the Commission’s appeal and in refusing to
intervene to quash the decision of the Board, which made a decision without
regard for the material before it, in accordance with section 115 of the
Act.
[13]
According
to the recent Supreme Court of Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9, in cases
of errors of law or jurisdiction, the applicable standard is correctness.
[14]
As the Board and later
the Umpire both rendered decisions without regard for the material before them in accordance
with section 115 of the
Act, it follows that the Umpire’s decision was not correct and that the Court
must intervene.
[15]
I would
allow the application for judicial review with costs, set aside the impugned
decision, and refer the matter back to the Chief Umpire or his designate for
redetermination on the basis that the respondent lost her employment by reason
of her own misconduct.
“Pierre Blais”
“I
concur in these reasons.”
“Alice Desjardins J.A.”
“I
concur.”
“Marc Noël J.A.”
Certified
true translation
Johanna
Kratz
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