Date:
20070314
Docket:
A-239-06
Citation:
2007 FCA 107
CORAM: DESJARDINS
J.A.
LÉTOURNEAU
J.A.
RYER J.A.
BETWEEN:
THE ATTORNEY
GENERAL OF CANADA
Applicant
and
JOHN McNAMARA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Edmonton, Alberta, on March 14,
2007)
LÉTOURNEAU
J.A.
[1]
This
is an application for judicial review by the Attorney General of Canada
(applicant) asking this Court to set aside the decision of Umpire Haddad
(CUB65619) made pursuant to the Employment Insurance Act, S.C. 1996, c.
23 (Act).
[2]
The
Umpire allowed the respondent’s appeal of a decision of a Board of Referees
(Board) that denied the respondent unemployment benefits on the grounds that he
had lost his employment because of his misconduct within the meaning of section
30 of the Act.
[3]
The
applicant seeks to have the decision of the Board reinstated. Therefore, the
issue before us is whether the Umpire erred in concluding, for reasons that we
will address below, that there was no evidence of misconduct.
[4]
Section
30 of the Act reads:
|
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.
|
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.
|
[Emphasis
added.]
[5]
The
following facts and circumstances underlie these proceedings.
Facts and Circumstances
[6]
The
respondent is a pipefitter and a member of the United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local Union
488. In November 2004, he secured employment with Lockerbie & Hole Inc. (the
employer) through his union. At the relevant time, the employer provided
services to Syncrude, the operator of a construction site.
[7]
On
19 November 2004, the respondent submitted to a drug test to gain access to
Syncrude’s site. He commenced working on the site on 22 November 2004, before
the results of that test were available. On 26 November 2004, after he had
worked for four days, the respondent was informed that his drug test was
positive for the substance THC (an active ingredient in marijuana). According
to Syncrude’s policies, the respondent was not allowed access to the work site.
The employer, therefore, terminated his employment.
[8]
Before
beginning his employment with the employer, the respondent had worked on the
Syncrude site and had successfully passed four previous drug tests. The
respondent says that he believed that Syncrude had a policy whereby it would
not require a new drug test within 90 days of the previous test. It was his
belief that he was still under the umbrella of a previous test. He did not
think he would be tested on 19 November 2004: see paragraphs 8 to 10 of the
respondent’s memorandum of fact and law. Unfortunately, no copy of Syncrude’s
policy regulating access to the construction site can be found in the record
before us.
[9]
The
collective agreement which binds the respondent and his employer sets out the
terms upon which the employer can carry out drug testing. The respondent claims
that the pre-access testing imposed by Syncrude to access the site does not
conform to the collective agreement: ibidem, at paragraphs 5 and 6.
[10]
After
his employment was terminated, the respondent applied for unemployment
benefits. He had previously established a claim for benefits, effective 15 February
2004. On 19 January 2005, the Employment Insurance Commission (the “Commission”)
denied the respondent further benefits starting 26 November 2004 on the grounds
previously mentioned.
The decision of the Umpire
[11]
The
Umpire found that the respondent would not be allowed by Syncrude to enter the
construction site and that this is the reason why his employment was terminated
by his employer: see the reasons for the decision, page 94 of the applicant’s
record. This finding is not disputed by the parties.
[12]
The
Umpire also found as a fact that the respondent took the illicit substance
prior to the commencement of his employment. From that finding he concluded as
follows:
There is ample jurisprudence to establish that
criminal activity which occurred prior to being hired will not provide evidence
of misconduct. I interpret that to mean any act committed prior to securing
employment will not provide evidence of misconduct to justify the termination
of employment. Claimant was not employed when the alleged misconduct occurred.
He could not be dismissed, therefore, for misconduct. He was dismissed
because Syncrude would not permit him to enter the work site. The claimant, in
the circumstances concerning his dismissal, is qualified to receive benefits.
[Emphasis
added.]
Analysis
of the decision
[13]
We
are of the view that the Umpire misapprehended the law with respect to the
definition of misconduct in section 30 of the Act. His erroneous conclusion of
law is reviewable on a standard of correctness.
The
Umpire’s conclusion that criminal activity prior to being hired is not evidence
of misconduct
[14]
This
Court ruled in Smith v. Canada (Attorney General), [1997] F.C.J. No. 1182
that misconduct can result from an act or omission that occurred prior to
taking the employment from which the employee is subsequently dismissed if that
misconduct is the cause of the dismissal from employment. Otherwise, an
employee, knowing that his misconduct while working for an employer could
result in his dismissal, could leave that employment to take up a new
employment. Then upon dismissal from this new employment, he could claim
unemployment benefits because the misconduct occurred before and not during the
new employment, although the misconduct was the operative cause of the loss of
the new employment.
[15]
The
facts in the Smith case are illustrative of such a possibility and the
incongruous result that may ensue. Mr. Smith was charged with driving while
under the influence of alcohol. He later commenced employment as a truck
driver. Upon conviction for an offence committed before commencing his employment,
he lost his driver’s license and, consequently, could not perform the work for
which he was hired. In other words, he could not fulfill his obligations under
the employment contract.
[16]
According
to the Umpire’s theory of the law and understanding of section 30 of the Act,
Mr. Smith would have been entitled to receive benefits. This cannot be. This is
not what the Act says since Mr. Smith’s misconduct was the cause of his loss of
employment. Indeed, section 30 speaks in terms of a loss of “any employment” as
a result of the misconduct. The provision does not limit or confine the
disqualification from benefits to the employment occupied at the time of the
misconduct. The relationship between employment and misconduct is not one of
timing, but one of causation. Therefore, the respondent’s reliance upon the
Umpire’s interpretation of the Act is neither supported by a reasonable
interpretation of section 30 of the Act nor the decision of this Court in the Smith
case.
The
respondent’s contention that he was the victim of a wrongful dismissal because
the drug test administered by Syncrude was not justified in the circumstances
[17]
The
respondent also submits that his dismissal was wrongful. He provides two
reasons for his submission.
[18]
In
his view, the drug test that he was asked to undertake was against Syncrude’s
policy because, according to his understanding and that of his union, the test
was valid until he absented himself from the site for a period of more than
ninety (90) days: see paragraphs 8, 9, 10 and 37 of the respondent’s memorandum
of fact and law. He claims that within that ninety-day period he could move
from one employer to another without having to submit to a new test.
[19]
Furthermore,
as previously mentioned in the summary of the facts, it is the respondent’s
contention that, under the Canadian Model for Providing a Safe Workplace
that governed his employment relationship with his employer, the conditions for
submitting him to a drug test were not met: see excerpts of the document at
pages 63 to 66 of the applicant’s record. There were no reasonable grounds to
believe that he was unable to work in a safe manner because of the use of
drugs: ibidem, clause 4.4.1, at page 64. Nor, as he said, was he
involved in an accident, a near miss or other potentially dangerous incident: ibidem,
clause 4.5.1.
[20]
In
essence, what the respondent is saying is that he is entitled to receive
unemployment benefits because of both Syncrude and his employer’s misconduct in
wrongfully dismissing him from employment. The answer to this contention is
twofold.
[21]
First,
the respondent was invited to submit to a drug test. He freely and voluntarily
accepted the invitation. In so doing, he renounced his right to claim a strict
enforcement of Syncrude’s policy. He can hardly complain that Syncrude or his
employer acted illegally or improperly in these circumstances.
[22]
Second,
there is constant jurisprudence from this Court that the role of the Board and
the Umpire is not to determine whether the dismissal of an employee was
wrongful or not, but rather to decide whether the act or omission of the
employee amounted to misconduct within the meaning of the Act: see Canada (Procureure générale)
c. Marion,
2002 FCA 184; Canada (Attorney General) v. Caul, 2006 354 N.R. 21 (F.C.A.);
Fakhari v. Canada (Attorney General), 197 N.R. 300 (F.C.A.);.Canada
(Attorney General) v. Namaro, 46 N.R. 541 (F.C.A.); Canada (Attorney
General) v. Jewell, 175 N.R. 350 (F.C.A.); Canada (Attorney General) v.
Secours, 179 N.R. 132 (F.C.A.); Canada (Attorney General) v. Langlois
(February 21, 1996), Doc. A-94-95, A-96-95 (F.C.A.).
[23]
In
the interpretation and application of section 30 of the Act, the focus is
clearly not on the behaviour of the employer, but rather on the behaviour of
the employee. This appears neatly from the words “if the claimant lost any
employment because of their misconduct”. There are, available to an employee
wrongfully dismissed, remedies to sanction the behaviour of an employer other
than transferring the costs of that behaviour to the Canadian taxpayers by way
of unemployment benefits.
[24]
For
these reasons and notwithstanding the valuable efforts of counsel for the
respondent, the application for judicial review will be allowed without costs
since the applicant waived them. The decision of the Umpire will be set aside
and the matter will be referred back to the Chief Umpire, or a person that he
designates, for a redetermination on the basis that the respondent lost his
employment because of his misconduct and, therefore, was not entitled to
receive unemployment benefits.
“Gilles
Létourneau”
Email this Content