Date: 20070509
Docket: A-294-06
Citation: 2007 FCA 183
CORAM: RICHARD
C.J.
LINDEN J.A.
RYER
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
JULIA COURCHENE
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench at Winnipeg, Manitoba by the Chief Justice on May
9, 2007)
RICHARD C.J.
[1]
This is an
application by the Attorney General of Canada for an order to set aside the
decision of the Honourable Paul Rouleau, dated May 31, 2006, (CUB65901) which
he rendered in his capacity as an Umpire appointed under the Employment
Insurance Act, S.C. 1996, c. 23 (the “Act”). In his decision, the Umpire
allowed the appeal of Julia Courchene from the decision of the Board of
Referees, dated November 2, 2005, that she lost her employment by reason of her
own misconduct and as a result, that she was disqualified indefinitely from
receiving benefits by virtue of sections 29 and 30 of the Act.
[2]
The Umpire
allowed in evidence Minutes of Settlement which were not before the Board.
[3]
The
applicant argues that the Minutes of Settlement are inadmissible before the
Umpire since they existed prior to the hearing of the Board. Whether the
Minutes of Settlement constituted “new facts” or a material fact that was
unknown to the Board of Referees at the time of their decision, the decision of
the Umpire to admit the Minutes of Settlement into evidence was permissible
under section 120 of the Act. In relation to the appropriate approach to be
accorded to the admission of new evidence by an Umpire, we would refer to the
decision of this Court in Gilles Dubois v. Canada Employment Insurance
Commission and Attorney General of Canada, [1998] F.C.J. No. 768, 231 N.R.
119 at 129-121, in which Marceau J. states:
Suffice
it to say that the Umpire refused to admit the new evidence based on a strict
application of the principles established by the courts holding that on appeal
or judicial review, new evidence implies that either the party involved was
unaware of the evidence or it was impossible to produce the evidence, at the
time of the hearing at first instance.
.
. .
We
must express serious reservations about the application by an Umpire of formal
rules developed for the smooth functioning of the courts. The Umpire is one
level in the process of the administration of the Unemployment Insurance Act,
an eminently social piece of legislation, where claimants usually represent
themselves and where the boards of referees sitting a first instance have no
legal training. The principles of justice suggest that submissions by
claimants should be accepted very liberally at all levels; in fact this very
liberal approach is required by s. 86
[now
section 120] of the Act.
[4]
The Umpire
concluded that Canada (A.G.) v. Boulton (1996), 208
N.R. 63 is authority for the proposition that a settlement agreement can
constitute evidence that could rebut other evidence of misconduct in
circumstances in which the settlement agreement provides for the reinstatement
of the employee or provides for a meaningful amount of compensation for the
employee. The Umpire found that the contents of the Minutes of Settlement in
fact contradicted the employer’s assertion of misconduct.
[5]
In my
view, it was reasonable for the Umpire to conclude that the Minutes of
Settlement “contradict a finding of misconduct on the claimant’s part.” As held
in Boulton, before a settlement agreement can be used to contradict an
earlier finding of misconduct, there must be some evidence in respect of the
misconduct which would contradict the position taken by the employer during the
investigation by the Commission or at the time of the hearing before the Board
(para.10). I have reproduced below the portions of the Minutes of Settlement
which, in my opinion, support the Umpire’s conclusion:
.
. .
- The
Employer withdraws its letter of termination dated.
- The
Employer will pay to the Employee an amount equal to 12 weeks pay at her
last regular rate of pay, less necessary deductions.
- The
Employee will provide the Employer with a letter of resignation effective
July 21, 2005, in wording as attached hereto as Schedule “A”, which will
be placed on the Employee’s personnel file.
- The
Employer will expunge from the Employee’s personnel file all documents
imposing the discipline and termination which were the subject of the
grievances.
.
. .
8.
The Employer will file an amended Record of Employment stating that her
employment was terminated by mutual agreement.
.
. .
10.
The terms of these Minutes shall be without prejudice or precedent to the
parties with respect to any existing or future matters arising between them,
and shall be held in strict confidence except as may be required by law.
.
. .
[6]
These
terms, taken together, can reasonably be understood to contradict a finding of
misconduct on the part of the respondent. The letter of termination is replaced
by a letter of resignation, the respondent’s personnel file is expunged to
eliminate all information related to the grievance, the Record of Employment is
amended to indicate that the employer was terminated by mutual agreement and,
also of considerable significance, the respondent is given meaningful
compensation (12 weeks pay after 1½ years of employment).
[7]
Accordingly
the application for judicial review will be dismissed with costs.
“J. Richard”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-294-06
STYLE OF CAUSE: The
Attorney General of Canada v.
Julia Courchene
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: May 9, 2007
REASONS FOR JUDGMENT OF THE COURT BY: Richard C.J.
Linden J.A.
Ryer
J.A.
DELIVERED FROM THE BENCH BY: Richard C.J.
APPEARANCES:
|
Mr. Graham Laschuk
Department of Justice
Edmonton, AB
|
FOR THE APPLICANT
|
|
Mr. Jacob
Giesbrecht
Winnipeg, MB
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Mr. John H. Sims,
Q.C.
Deputy Attorney General of Canada
Ottawa, ON
|
FOR THE APPLICANT
|
|
Inkster Christie Hughes LLP
Barristers & Solicitors
Winnipeg, MB
|
FOR THE
RESPONDENT
|
Email this Content