Date: 20070208
Docket: A-85-06
Citation: 2007 FCA 36
CORAM: NADON
J.A.
SEXTON
J.A.
SHARLOW
J.A.
BETWEEN:
DAVID MISHIBINIJIMA
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1]
This is a
judicial review application of a decision of an Umpire, dated November 30,
2005, CUB 59150B, which concluded that the applicant had lost his employment
with Ardron-Mackie Ltd. (the “employer”) by reason of his misconduct. In so
concluding, the Umpire set aside the decision of the Board of Referees (the
“Board”) and upheld the decision of the Canada Employment Insurance Commission’
(the “Commission”) which concluded that the applicant was not entitled to receive
benefits because he had lost his employment by reason of his misconduct.
[2]
It is not
disputed that the applicant, who worked for the employer from September 1992 to
November 2, 2001, repeatedly failed to show up for work or arrived late on
Mondays and, occasionally, on other days of the week, because he drank heavily
on weekends.
[3]
The
applicant was advised by his employer on October 30, 2001, by way of a letter
dated October 29, 2001, that due to his absenteeism, his employment was in
jeopardy. The letter received by the applicant read as follows:
THIS LETTER IS TO INFORM
YOU THAT YOUR ABSENTEEISM HAS REACHED A VERY SERIOUS STAGE, AND CAN NO LONGER
BE TOLERATED. HAVING BEEN SPOKEN TO ON NUMEROUS OCCASIONS BY [sic] PREVIOUS
SHOP SUPERVISOR, AND MYSELF DURING THE PAST YEAR (INCLUDING 3 OR 4 TIMES WITHIN
THE LAST MONTH) REGARDING THIS PROBLEM, CONSIDERATION HAS BEEN GIVEN TO YOUR
LENGTH OF TENURE WITH THE COMPANY AND YOUR OTHERWISE SATISFACTORY WORK
PERFORMANCE..
AS A RESULT THE
FOLLOWING STIPULATION MUST BE ADHERED TO FOR THE NEXT SIX MONTHS, OR YOUR
EMPLOYMENT WITH ARDRON-MACKIE LIMITED WILL BE TERMINATED IF YOU FAIL TO COMPLY:
1. NO ABSENTEEISM
WITHOUT PRIOR APPROVAL
2. ANY ABSENTEEISM
WITHOUT APPROVAL MUST BE COVERED BY MEDICAL NOTE.
[4]
On Monday,
November 5, 2001, the applicant telephoned Jim Sinclair, the plant supervisor,
informing him that he would not be in for work that day and that, as a result,
he assumed his employment would be terminated. The applicant’s assumption was
correct and he was dismissed.
[5]
On
December 12, 2001, the applicant submitted an application for employment
insurance benefits and, on May 13, 2002, the Commission advised him that he was
not entitled to benefits because he had lost his employment by reason of his
misconduct.
[6]
On January
29, 2003, the Board allowed the applicant’s appeal from the Commission’s
decision. After concluding that his alcohol dependence constituted a
“disability” under the Canadian Human Rights Act, R.S.C. 1996, c. H-6
(the “CHRA”), and that his dependence was the cause of his absenteeism, the
Board concluded that his conduct was not wilful “because his actions were
determined by his addiction to alcohol” (p. 4 of the Board’s decision). The
Board was of the view that since the employer had not taken any measures to
accommodate the applicant’s dependence on alcohol, his dismissal could not be
justified. Further, the Board stated that the applicant’s conduct was not so
reprehensible as to justify a termination of his employment, considering that
he was unable to control his actions because of his dependence on alcohol.
Lastly, the Board was of the view that the employer ought to have provided
support to the applicant by either allowing him to work Tuesday to Friday, by
allowing him to enter a treatment or rehabilitation program, or by taking
sanctions less severe than full dismissal. In the Board’s view, these steps
were required by the CHRA.
[7]
The
Umpire, whose decision the applicant seeks to set aside, took an entirely
different view of the matter and, as a result, he set aside the Board’s
decision. The Umpire was of the view that the sole issue before the Board was
whether the applicant had lost his employment due to his own misconduct. Hence,
he expressed the view that the issue of whether alcoholism was a disability
under the CHRA or whether the employer had a duty to accommodate the applicant
were not relevant considerations.
[8]
The Umpire
then went on to consider the events which gave rise to the applicant’s
dismissal and examined that evidence in the light of this Court’s
jurisprudence, namely, Canada (Attorney General) v. Turgeon, [1999]
F.C.J. No. 1861 (QL), Canada (Attorney General) v. Wasylska, [2004]
F.C.J. No. 977 (QL), and Canada (Attorney General) v. Marion, [2002] F.C.J. No. 711 (QL).
His review of the jurisprudence led him to conclude that alcoholism could not
excuse a claimant’s acts and omissions where they constituted misconduct. As a
result, he concluded in the following terms, at page 5 of his Reasons, that the
applicant had lost his employment by reason of his misconduct:
I find that
the Board erred in fact and in law in its decision. The evidence clearly
established that the claimant lost his employment due to his misconduct
resulting from his persistent absenteeism and his failure to abide by the terms
of his agreement with his employer.
[9]
Before
turning to the jurisprudence and to the applicant’s submissions, I will set out
sub-section 30(1) of the Employment Insurance Act, 1996, c. 23 (the
“Act”), which the Commission relied upon for its decision:
|
(1)
A claimant is disqualified from receiving any benefits if the claimant
lost any employment because of his 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.
[Emphasis added]
|
(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.
[Je souligne]
|
[10]
The term
“misconduct” has received considerable attention from this Court. Suffice it to
refer to our decisions in Canada (A.G.) v. Tucker, [1986] F.C.J. No. 203
(F.C.A.) (QL), Canada (A.G.) v. Brissette, [1993] F.C.J. No. 1371
(F.C.A.) (QL), and Canada (A.G.) v. Secours, [1995] F.C.J. No. 210 (F.C.A.)
(QL).
[11]
In Tucker,
supra, Mr. Justice MacGuigan explained the meaning of “misconduct” at
paragraph 15:
… it is, I think, a
correct statement of our law in so far as it indicates that in order to
constitute misconduct the act complained of must have been wilful or at least
of such a careless or negligent nature that one could say the employee wilfully
disregarded the effects his or her actions would have on job performance. …
[12]
In Brissette,
supra, this Court again considered the meaning of the word “misconduct”. At
paragraphs 10 and 12 of his Reasons, Mr. Justice Létourneau wrote the
following:
10. Moreover,
we have no hesitation in concluding that what he did, which was to commit a
summary conviction or indictable offence and resulted in a conviction under the
Criminal Code, is misconduct within the meaning of subsection 28(1) of the Act.
The misconduct referred to in that section may manifest itself in a violation
of the law, of a regulation or of an ethical rule, and may mean that an
essential condition of the employment ceases to be met, resulting in dismissal.
Such a condition may be express or implied and may relate to a concrete or more
abstract requirement.
…
12. This being
said, 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. It is not sufficient, in order for
the disqualification to come into play, for the misconduct to be a mere excuse
or pretext for the dismissal. It must cause the loss of employment and must be
an operative cause. It is not necessary for the purposes of this case to
determine whether it must be the only operative cause of the dismissal.
[13]
Finally,
in Secours, supra, Létourneau J.A., again writing for the Court, stated
at paragraph 2 of his Reasons:
2. The learned
Umpire, R.J. Marin, made two errors. First he concluded that there was no
wrongful intent on the part of the respondent and therefore no intent to
defraud. It is not necessary for a behaviour to amount to misconduct under the
Act that there be a wrongful intent. It is sufficient that the reprehensible
act or omission complained of be made “wilfully”, i.e. consciously,
deliberately or intentionally. In the present instance, the respondent knew
that she could not manually alter her time card as she had been warned
previously. Yet she consciously and deliberately did it.
[14]
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.
[15]
I now turn
to the applicant’s submissions. He argues that the Umpire erred in failing to
interpret the Act in accordance with the provisions of the CHRA. More
particularly, the applicant says that in determining whether misconduct was the
cause of his termination, the Umpire was bound to consider that, pursuant to
section 25 of the CHRA, alcohol dependence was a “disability”, that it was
discriminatory under section 7 thereof to refuse to employ or to continue to
employ a person by reason of a prohibited ground of discrimination, i.e.
alcohol dependency - a disability - and that an employer was obligated under
the CHRA to accommodate an employee’s disability.
[16]
Turning to
the facts of this case, the applicant says that since it is clear that his absenteeism
results from his alcohol dependence, it cannot therefore constitute misconduct
since the element of “wilfulness” is not present. To this proposition the
applicant adds that in determining whether the element of “wilfulness” is
present, regard must be had to the fact that his employer made no attempt to
accommodate him by providing counselling, access to programs or a modification
of his work schedule.
[17]
Thus, the
applicant says that the Umpire erred in overturning the Board’s decision. I
cannot agree. In my view, the Umpire made no reviewable error in concluding as
he did. More particularly, I am satisfied that the Umpire did not err in
determining that whether alcoholism is a “disability” pursuant to the CHRA and
whether the employer ought to have accommodated the applicant were not relevant
considerations.
[18]
There can
be no doubt in the present matter that the applicant was dismissed because he
was repeatedly absent or late for work. The issue, therefore, is whether in the
light of all of the relevant circumstances, misconduct was the cause of his
dismissal. If so, the judicial review application must be dismissed.
[19]
The
evidence before the Board was that the applicant had received numerous warnings
from his employer regarding his absenteeism going back more than one year and,
in particular, three to four times within the month preceding his dismissal.
Notwithstanding the serious warning which he received from his employer on October
30, 2001, he failed to report for work on November 5, 2001, advising his
employer at approximately 7:20am that he would not be coming in that day.
[20]
The
evidence also revealed that the applicant had had a drinking problem since at
least 1996 and that his employer was aware of his problem. The applicant
testified before the Board that after seeing a doctor in July 2001, he entered
an Alcoholics Anonymous program given by Anishnawbe Health which he stopped
attending in October 2001, prior to his dismissal.
[21]
In my
view, the Board made two errors. The first one was in finding that the
applicant’s conduct was not so egregious as to justify his dismissal. In Canada (A.G.) v. Marion, [2002] F.C.J. 711 (QL), at
paragraph 3, Létourneau J.A. remarked in unequivocal terms that the Board was
not empowered to determine whether the “severity of the penalty imposed by the
employer was justified and whether the employee’s conduct was a valid ground
for dismissal”. In his view, there was only one question before the Board and
that was whether the claimant’s conduct amounted to misconduct.
[22]
Secondly, I
am satisfied that in concluding that the applicant had not lost his employment
by reason of his misconduct, the Board failed to consider all of the relevant
circumstances. This occurred, in my view, because of the Board’s finding that
the applicant’s absenteeism resulted from his alcohol dependence, a
“disability” under the CHRA, and that as a result, the element of “wilfulness”
was not present.
[23]
I am not suggesting
that the applicant’s alcohol problem was an irrelevant consideration. I am,
however, of the view that whether or not that problem constituted a
“disability” pursuant to the CHRA was an irrelevant consideration with respect
to the question at issue before the Board. The same goes with respect to the
employer’s duty of accommodation pursuant to the provisions of the CHRA. Although
the measures which an employer takes or could have taken with respect to an
employee’s alcohol problem may be relevant to the determination of whether
there is misconduct, the fact that the employer failed in its duty to
accommodate its employee pursuant to the provisions of the CHRA is not, in my
view, a relevant consideration.
[24]
Thus, in
determining whether the claimant had lost his employment by reason of his
misconduct, the Board was bound to consider all of the relevant circumstances
leading to his dismissal. However, before turning to those circumstances, I
turn to a series of decisions rendered by this Court which are entirely
apposite to the present matter.
[25]
I begin
with our decision in Canada (A.G.) v. Turgeon, [1999] F.C.J. No. 1861
(QL), where Décary J.A., writing for a unanimous Court, concluded that the
Umpire had erred in failing to set aside a decision of the Board which had
found that the claimant had not lost his employment by reason of misconduct on
the ground that alcoholism was the true cause of his dismissal. In concluding
that the Umpire should have intervened, Décary J.A. made it clear that assuming
that alcoholism could be relied upon to excuse misconduct, the mere fact of its
existence was not sufficient to allow for such a conclusion. He then went on to
say that on the evidence before it, the Board could not have come to such a
conclusion.
[26]
In Canada
(A.G.) v. Wasylka, [2004] F.C.J. No. 977 (QL), Létourneau J.A. held that
the Umpire had erred in concluding that a claimant’s absence from work was not
wilful because it resulted from a drug addiction. At paragraphs 4 and 5 of his
Reasons, he wrote:
4. It was an error
of law for the Umpire to conclude that the respondent’s absence from work was
not wilful because of his drug addiction. The consumption of drugs by the
respondent, even though attractive or irresistible, was voluntary in the sense
that his acts were conscious and that he was aware of the effects of that
consumption and the consequences which could or would result. He did declare
that he could “not focus on anything that matters” when he was taking the drug:
see the Applicant’s Record, page 51. The respondent’s actions that day, i.e.
the use of illegal drugs, were sufficiently serious and of such scope that he
could normally foresee that it would be likely to result in his dismissal: see Canada (Attorney
General) v. Langlois, [1996], F.C.J. No. 241.
5. It would be
fundamentally altering the nature and principles of the employment insurance
scheme and Act if employees, who lose their employment as a result of abusing
impairing substances such as alcohol or drugs, could be entitled to receive
regular unemployment benefits. Section 21 of the Employment Insurance Act
and 40 of the Employment Insurance Regulations already provide for
sickness benefits and the respondent has been a recipient of such benefits.
[27]
In Canada
(A.G.) v. Richard, [2005] F.C.J. No. 1750 (QL), the claimant, like the
applicant herein, had lost his job by reason of repeated absences from his
workplace, absences which resulted from his alcohol problem. In concluding that
the claimant had lost his employment by reason of his misconduct, Létourneau
J.A., at paragraphs 4 to 6, explained his rationale as follows:
4. The respondent
disregarded the many warnings received. According to the evidence in the record
(see for example the notice of suspension dated February 21, 2002, applicant's
record, exhibit number 6-1, page 24), on more than one occasion he refused the
help that his employer tried to extend to him through its employee assistance
program.
5. Under the
circumstances, the respondent could not have been unaware that the breach of
his obligations under his employment contract was of such scope that it was
normally foreseeable that it would be likely to result in his dismissal: see Attorney
General of Canada v. Langlois and Attorney General of Canada v. Edward
[1996] S.C.J. No. 241, at paragraph 4.
6. In this case, the
respondent's loss of employment was the result of his misconduct and the
community need not bear the consequences of that by paying him employment
insurance benefits, as he is requesting.
[28]
Finally,
in Canada (A.G.) v. Pearson, [2006] F.C.J. 818, where the facts were
very similar to those found in Richard, supra, and to those found in the
present matter, we again determined that the claimant’s problem with alcohol
could not allow him to escape the conclusion that misconduct was the cause of
his dismissal.
[29]
I need only
refer to one other decision. In Casey v. Canada (E.I.C.), [2001] F.C.J.
No. 1854 (QL), the claimant was appealing a decision of an Umpire who had set
aside a decision of the Board which had concluded that he had not been
dismissed by reason of his misconduct. Specifically, the Board had concluded
that the claimant’s conduct was not wilful because it was the result of his problem
with alcohol.
[30]
In
upholding the Umpire’s decision, Malone J.A. held that there was evidence before
the Board from which the wilfulness of the claimant’s admitted misconduct could
reasonably be inferred. In so concluding, Malone J.A. alluded to the fact that
the claimant had filed evidence before the Board in the form of an expert
report so as to demonstrate that his misconduct was not wilful. After stating
that the expert report provided general information regarding the effect of
alcohol addiction but that it did not express any firm opinion with respect the
claimant, Malone J.A. held that the report “was not capable of supporting the
conclusion that his conduct was not wilful” (paragraph 3 of his Reasons).
[31]
In my
view, our decisions in Turgeon, Richard, Wasylka, Pearson and Casey,
supra, clearly support the conclusion reached by the Umpire that the
applicant had lost his employment by reason of his misconduct. Although the
applicant was given ample warning by his employer over a period of at least one
year prior to his dismissal and, more particularly, four times in the month
prior to his dismissal, and that he was warned on October 30, 2001, that
failure to appear for work on time without proper notice would result in his
dismissal, he nonetheless failed to show up for work on November 5, 2001.
[32]
There can
be no disputing, in my view, that an employee’s repeated failure to show up for
work is a serious breach of the employment contract, all the more so when the
employee has been warned by his employer that such a failure will result in his
dismissal. On the evidence before the Board, it is not possible to conclude
that the applicant’s conduct was not wilful.
[33]
The fact
that the applicant had a problem with alcohol is of no help to him. To quote
the words of Létourneau J.A. at paragraph 4 of his Reasons in Wasylka, supra,
the consumption of alcohol by the applicant “… was voluntary, in the sense that
his acts were conscious and that he was aware of the effects of that
consumption and the consequences which could or would result”.
[34]
I note
that in Turgeon,supra, and Casey, supra, both Décary J.A.
and Malone J.A. were of the view that the evidence adduced was insufficient to
support the claimant’s contention that there was no misconduct by reason of his
alcoholism. In the present matter, there is no medical opinion, no evidence
from Anishnawbe Health or any other evidence which, in my view, could possibly
support the conclusion that the applicant’s conduct was not wilful.
[35]
The
evidence before the Board with respect to the applicant’s problem with alcohol
is very weak and, in my view, insufficient to justify the conclusion sought by
the applicant. All that is known about his problem comes from his testimony
before the Board where he said that he had had an alcohol problem since 1996,
that his problem became progressively worse as of July 2001 and that upon the
advice of a doctor, he entered a program given by Anishnawbe Health.. When
asked by his counsel whether he felt that he had a problem with alcohol, the
applicant answered yes. He was then asked if he felt that he was unable to
control his alcoholism and he answered yes. This testimony appears at page 19
of the transcript of the evidence which he gave before the Board on September
5, 2002 (page 84, Applicant’s Record). The specific questions and answers read
as follows:
Q. … Do you feel
that you have an alcohol problem?
A. Yes.
Q. And is it your
feeling that you are unable to control this problem?
A. Yes.
[36]
That is
the extent of the evidence adduced by the applicant regarding his alcohol
problem. I cannot see how that evidence could possibly support an argument that
his conduct was not wilful. Whether or not, in a given case, a different conclusion
could be reached, assuming that sufficient evidence was adduced regarding a
claimant’s inability to make a conscious or deliberate decision, which evidence
would likely include medical evidence, is an issue which I need not address. Clearly,
in the present matter, the evidence adduced is incapable of supporting a
conclusion that the applicant’s conduct was not wilful.
[37]
One final
point. With respect to his submission regarding the applicability of the CHRA,
the applicant relied heavily on the Supreme Court of Canada’s decision in Tranchemontagne
v. Ontario (Director, Disability Support
Program),
2006 SCC 14, April 21, 2006. In my view, that decision is of no help to the
applicant.
[38]
What was
at issue before the Supreme Court in Tranchemontagne, supra, was
whether the Ontario Social Benefits Tribunal (the “SBT”) had jurisdiction to
consider the Ontario Human Rights Code (the .Code”) in making a
determination under the Ontario Disability Support Program Act, [1997]
S.O. 1997, c. 25, Sched. B (the “Support Program Act”). The Supreme Court
answered that question by a yes. Because subsection 47(2) of the Code provided
that where a provision of an Ontario statute or regulation was in conflict with
the provisions of the Code, the latter would prevail unless the statute or
regulation specifically provided that it was to apply despite the Code, the
Supreme Court referred the matter back to the SBT for a determination on the
applicability of subsection 5(2) of the Support Program Act which was possibly
in conflict with the Code.
[39]
Firstly,
in the present matter, the Umpire was not of the view that he was without
jurisdiction to consider the CHRA. Rather, he was of the opinion that in view
of the question that was before him, i.e. whether the applicant had lost his
employment by reason of his misconduct, a determination of whether the
applicant had a disability under the CHRA or whether the employer had met his
duty of accommodation were not relevant considerations. I have already
indicated that, in my view, the Umpire did not err in so concluding.
[40]
Secondly,
it is of importance to note that subsection 47(2) of the Ontario Code expressly
provides that where a provision in an act or regulation of Ontario requires or authorizes
conduct which is in contravention of the Code, the provisions of the Code are
to prevail. I have found no such provision in the CHRA.
[41]
For these reasons,
the application for judicial review will be dismissed with costs.
“M. Nadon”
“I
agree.
J.
Edgar Sexton J.A.”
“I
agree.
K.
Sharlow J.A.”
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