Maher v. Canada (Attorney General), 2006 FCA 223

Date: 20060614

Docket: A-344-05

Citation: 2006 FCA 223

CORAM:       DÉCARY J.A.

                        LÉTOURNEAU J.A.

                        NOËL J.A.

BETWEEN:

TOMMY MAHER

Applicant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

Hearing held at Québec, Quebec, on June 14, 2006.

Judgement delivered from the bench at Québec, Quebec, on June 14, 2006.

REASONS FOR JUDGEMENT OF THE COURT BY:                                   LÉTOURNEAU J.A.

Date: 20060614

Docket: A-344-05

Citation: 2006 FCA 223

CORAM:       DÉCARY J.A.

                        LÉTOURNEAU J.A.

                        NOËL J.A.

BETWEEN:

TOMMY MAHER

Appellant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR JUDGEMENT OF THE COURT

(Delivered from the bench at Québec, Quebec, on June 14, 2006)

LÉTOURNEAU J.A.

[1]               In our opinion, Umpire Goulard was correct in concluding that the Board of Referees could not ignore relevant evidence or reject it without explaining the reasons for doing so or for which he felt he was warranted in ignoring such evidence.

[2]               In this case, this evidence concerned the reasons for the appellant’s dismissal, the numerous warnings he received in connection with his misconduct, a suspension that was applied and the incidents which ultimately led to the dismissal. Faced with this uncontested evidence, the Umpire could only be surprised at the conclusion reached by the Board of Referees to the effect that the harassment committed by the appellant, including sexual harassment, was not wilful or deliberate. Such a conclusion on the part of the Board of Referees appears to be either arbitrary and abusive or mistaken in law in the absence of explanations that may have justified it.

[3]               In addition, without saying anything else, the Board of Referees concluded that the acts allegedly committed did not constitute misconduct within the meaning of section 30 of the Employment Insurance Act, S.C. 1996, c. 23.

[4]               Once again, lacking any explanations, such a conclusion of law seems arbitrary at the very least.

[5]               In the circumstances, the Umpire was correct in ordering a new hearing.

[6]               For these reasons, the application for judicial review will be dismissed with costs.

“Gilles Létourneau”

Certified true translation

Michael Palles

FEDERAL COURT OF APPEAL

SOLICITORS OF RECORD

DOCKET:                                                                              A-344-05

STYLE OF CAUSE:                                                              TOMMY MAHER v. ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                                        Québec, Quebec

DATE OF HEARING:                                                          June 14, 2006

REASONS FOR JUDGEMENT                                          DÉCARY J.A.

OF THE COURT BY:                                                           LÉTOURNEAU J.A.

                                                                                                NOËL J.A.

DELIVERED FROM THE BENCH BY:                            LÉTOURNEAU J.A.

APPEARANCES:

SOLICITORS OF RECORD: