Date:
20071023
Docket: A-371-06
Citation: 2007
FCA 333
CORAM: SEXTON
J.A.
SHARLOW
J.A.
RYER
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
STEPHEN
JONES
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Toronto, Ontario, on October 23, 2007)
RYER J.A.
[1]
This
is an application for judicial review of a decision of Umpire Jean A. Forget
(CUB 66286), dated June 21, 2006, under the Employment Insurance Act
S.C. 1996 c.23 (the Act) dismissing the applicant’s appeal from a decision of
the Board of Referees (the Board), dated June 8, 2005. The Board allowed the
appeal of Mr. Stephen Jones from a decision of the Canada Employment Insurance
Commission (the Commission) that Mr. Jones was disqualified from receiving
benefits because he lost his employment due to his own misconduct, pursuant to
subsection 30(1) of the Act.
[2]
Mr.
Jones was employed as a taxi driver for a company that had a contract with the
Halton School Board to drive children to and from a school. The employer had a
policy that prohibited drivers from making any stops while driving the children
to or from school. Notwithstanding this policy, Mr. Jones made a stop at his
residence, which was across the street from the school, to drop off some
cigarettes for his wife. This action was made known to his employer as a result
of a complaint by the parents of the child who was in the car at the time that
Mr. Jones dropped off the cigarettes. As a result, the employer terminated Mr.
Jones employment.
[3]
The
Commission denied Mr. Jones application for benefits on the basis that he had
lost his employment due to his own misconduct. Mr. Jones appealed this decision
and, on July 9, 2004, the Board granted his appeal. The Commission successfully
appealed that decision before Umpire Guy Goulard (CUB 63121) who held that the
Board erred in law by failing to provide sufficient reasons for its decision to
reject most, if not all, of the employer’s evidence in favour of the evidence
that was given by Mr. Jones. Accordingly, Umpire Goulard set aside the decision
of the Board and ordered the matter to be returned before a differently
constituted Board.
[4]
The
newly constituted Board also decided in favour of Mr. Jones, holding that there
was insufficient corroboration of the employer’s evidence on a number of
matters and that in the absence of testimony from the employer, more weight was
appropriately placed upon the testimony of Mr. Jones. As a result, the Board
concluded that the legal test of wilfulness and careless neglect that was
required to show misconduct, had not been clearly demonstrated to have been met
and the explanation of Mr. Jones that his conduct was a “first time error in judgment”
was accepted.
[5]
In
reviewing this decision, Umpire Forget rejected the applicant’s contention that
it was an error on the part of the Board to exclude the employer’s evidence
because the employer did not testify before them. In so doing, the Umpire
decided that the employer’s evidence had not been excluded; rather the Board
simply preferred to accept the evidence of Mr. Jones. Moreover, the Umpire
concluded that the Board provided reasons for their preference. The Umpire also
concluded that the Board was aware of the proper legal test for misconduct and
that after having made their factual findings – preferring the evidence of Mr.
Jones to that of the employer – the Board correctly determined that the
elements of the legal test for misconduct had not been met. As a result, the
Umpire dismissed the Commission’s appeal.
[6]
In
reviewing the decision of the Umpire, we are of the view that he and the Board
were correct in their stated understanding of the legal test for misconduct in
subsection 30(1) of the Act.
[7]
In
its decision, the Board stated that:
The Board had
to decide on the employer’s evidence without the employer present and was
therefore forced to place more weight on the direct testimony of the
claimant who was present.
[Emphasis
added]
[8]
If
by the use of the word “forced” the Board meant that they were “legally
compelled” to accept the evidence of Mr. Jones in absence of direct testimony
from the employer, then the Board would have made an error in law. However, the
use of the word “forced” is not, in our view, to be so construed. Instead, we
believe that the Board was simply stating a preference for the evidence of Mr.
Jones to that of the employer, which was a choice open to them. In so doing,
the Board made no error in law and as such there was no error in law, on that
point, that the Umpire failed to correct.
[9]
Finally,
we are unable to conclude that it was unreasonable for the Umpire to uphold the
application of the facts, as found by the Board, to the legal test for
misconduct, as stated by the Board. Accordingly, this application for judicial
review will be dismissed.
“C. Michael Ryer”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-371-06
(APPEAL FROM A DECISION FROM THE UMPIRE
IN, CUB 66286, WAS COMMUNICATED TO CANADA EMPLOYMENT INSURANCE COMMISSION ON JULY 26, 2006.)
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v.
STEPHEN JONES
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 23, 2007
REASONS FOR JUDGMENT OF
THE COURT BY: (SEXTON, SHARLOW & RYER JJ.A.).
DELIVERED FROM THE BENCH BY: RYER J.A.
APPEARANCES:
|
MS. SHARON McGOVERN
|
FOR THE APPLICANT
|
|
NO
APPEARANCE
|
FOR THE RESPONDENT (on his own behalf)
|
SOLICITORS OF RECORD:
|
JOHN H. SIMS, Q.C.
DEPUTY ATTORNEY GENERAL OF CANADA
|
FOR THE
APPLICANT
|
|
MR. STEPHEN
JONES
BURLINGTON,
ONTARIO
|
FOR THE
RESPONDENT (on his own behalf)
|
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