Date:
20071122
Docket: A-592-06
Citation: 2007 FCA 372
CORAM: NOËL J.A.
NADON
J.A.
PELLETIER J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
GARY
HASTINGS
Respondent
Heard at Montreal,
Quebec, on November 20,
2007.
Judgment delivered at Montreal, Quebec, on November 22,
2007.
REASONS FOR JUDGMENT BY: NADON
J.A.
CONCURRED IN
BY:
NOËL J.A.
PELLETIER J.A.
Date:
20071122
Docket:
A-592-06
Citation:
2007 FCA 372
CORAM: NOËL
J.A.
NADON J.A.
PELLETIER
J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
GARY HASTINGS
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1]
This
is an application for judicial review of a decision of an Umpire, dated
November 16, 2006, which dismissed the Commission’s appeal from the decision of
the Board of Referees (the “Board”). I am of the view that the Umpire erred in upholding
the Board’s decision.
[2]
The
claimant was dismissed because of acts which he posed after he was informed by
his employer of a $0.25 increase in salary which he found to be unacceptable
and unreasonable. In the words of the Umpire, found at page 1 of his decision
(p. 7 of the Applicant’s Record), the claimant “struck the computer and a
printer, destroying both and used vulgar language in the loud speakers of the
factory, giving a message that was offensive to the employer”.The Board
concluded that there was no misconduct on the part of the claimant.
Specifically, it said at page 2 of its Reasons (p. 52 of the Applicant’s Record):
The Board
feels that his reaction was human under the circumstances. The next morning,
the appellant went back to see the employer to explain his behaviour and excuse
himself. The Board considers that the claimant’s action “on the spur of the
moment” was not wilful and deliberate pursuant [to] the Act.
[3]
I
am satisfied that there was no evidence before the Board to support its
conclusion that the claimant’s conduct was neither wilful nor deliberate. To
the contrary, the acts which led to the claimant’s dismissal were, in my view,
undoubtedly conscious, deliberate and intentional. They were, at the very
least, reckless. The fact that the claimant acted “on the spur of the moment”
and that he immediately regretted his actions and apologized to his employer
shortly thereafter is of no relevance to whether his conduct constitutes
misconduct. In acting as he did, the claimant ought to have known that his
conduct was such that it might lead to his dismissal (see Canada (A.G.C.) v.
Secours, [1995] F.C.J. 70 (Q.L.) at paragraph 2; Mishibinijima v. Canada
(A.G.C.), 2007 FCA 36 at para. 14).
[4]
I
therefore conclude that the Board’s decision was patently unreasonable and
that, as a result, the Umpire ought to have intervened.
[5]
For
these reasons, the application for judicial review will be allowed with costs,
the decision of the Umpire will be set aside at the matter referred back to the
Chief Umpire or to the person designated by him to be decided on the basis that
the respondent’s conduct amounted to misconduct within the terms of section 29
and 30 of the Employment Insurance Act, S.C. 1985, c. 23.
“Marc
Nadon”
“I agree.
Marc Noël, J.A.”
“I agree.
J. D. Denis Pelletier, J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-592-06
(APPEAL FROM
A DECISION OF THE UMPIRE, MR. JUSTICE PAUL ROULEAU, IN FILE NUMBER CUB 67079).
STYLE OF CAUSE: ATTORNEY
GENERAL OF CANADA
and GARY HASTINGS
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 20, 2007
REASONS FOR JUDGMENT BY: NADON J.A.
CONCURRED IN BY: NOËL J.A.
PELLETIER J.A.
DATED: November 22, 2007
APPEARANCES:
|
Ms. Ilinca Ghibu
Mr. Paul Deschênes
|
FOR THE APPLICANT
|
|
Mr. David
Grossman
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
Montréal, Quebec
|
FOR THE APPLICANT
|
|
OSLER HOSKIN HARCOURT, LLP
Montréal, Quebec
|
FOR THE RESPONDENT
|
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