[1] This is an application for judicial review against a decision of Umpire Haddad who was required to determine whether the respondent had lost his employment due to his misconduct within the meaning of section 30 of the Employment Insurance Act, S.C. 1996, c. 23 ("Act").

Facts and Procedure

[2] The respondent worked as a pump operator. The pump was installed on a truck that had to be driven from one job site to another. He knew the employment required a driving license. He was charged with impaired driving in Alberta and his driving license was suspended for three months pending the outcome of the charge.

[3] The respondent's claim to benefits was denied by the Canada Employment Insurance Commission ("Commission") on the ground that he was disqualified from receiving benefits due to his misconduct. He appealed that decision. The Board of referees made the following findings of fact:

a) the respondent's driving license was suspended for three months;

b) the respondent admitted to drinking, but the amount of alcohol in his blood has not been established;

c) the respondent lost his position because he did not have a driver's license for three months.

[4] The Board found that the misconduct had not been proven because no wrongful act had yet been proven. The Umpire dismissed the appeal. Hence the application for judicial review by the Attorney General of Canada.

The Decision of the Umpire

[5] In essence, the Umpire found that the act of misconduct upon which the Commission relied had not been identified. He also was of the view that the evidence of misconduct was either lacking, deficient, or confusing. In this respect, we reproduce the following paragraphs from his decision:

It will be observed that evidence received by the Board is that claimant's license was suspended under an Alberta provincial requirement. The "requirement" under which the suspension was made was not produced or cited. In its representations to the Umpire in support of this appeal the Commission said that the suspension was made under the British Columbia Administrative Driving Prohibitions without citing the relevant provisions thereof. There is no evidence in the material to indicate the province in which claimant committed the alleged offence of impaired driving. The Board of Referees statement to the effect that there has been no verdict under Alberta law suggests that claimant was charged while driving in Alberta but that it is not confirmed in the material filed.

The provisions of the provincial statute pursuant to which the suspension was made has not been produced to permit the Board of Referees or the Umpire to examine the reason for the suspension for the purpose of determining whether claimant committed an act which may be considered misconduct.

The Commission proceeded on the premise that the charge of impaired driving without more, consists of misconduct. I am in accord with the view adopted by the Board of Referees that unless a conviction of the charge has been recorded no wrongful act has been proven.

The claimant admitted to drinking alcohol but there is no evidence as to the amount he consumed. The act of consuming alcohol does not consist of an act of misconduct unless it can be shown that the consumption was excessive.

The act of misconduct upon which the Commission relied has not been identified. The Commission's submission that the Board of Referees erred in law has not been established.

Analysis of the Decision

a) Whether the Umpire erred in interpreting the term "misconduct"

[6] With respect to the meaning of misconduct, the applicant submits that the Umpire erred in law by stating that "the act of consuming alcohol does not consist of an act of misconduct unless it can be shown that the consumption was excessive". He submits that the act of consuming alcohol may constitute misconduct even if the amount of alcohol is not excessive. It depends, he argues, on other facts and circumstances surrounding the event such, as in this case, the suspension of the claimant's driving license.

[7] The applicant also relies upon a finding made by an Umpire in CUB 53260 (Speckling). In that case, the Umpire concluded, at page 3, that our Court had decided in Attorney General of Canada v. Brissette, A-1342-92, December 8, 1993, that the behaviour of Brissette, who had been convicted for having failed a breathalyzer test, amounted to "misconduct not because of his conviction, but because of his inability, as a result of his conviction, to fulfill a condition of his employment".

[8] With respect, we believe the Umpire in the Speckling case misstated our finding in Brissette. He defined misconduct of the claimant by the claimant's inability to fulfill a condition of employment. In so doing, he confused the effect of a misconduct with the cause of that misconduct. Under such an approach, there is misconduct every time a person is unable to fulfill a condition of his or her employment. This cannot be. In Brissette, our Court ruled that it was the commission of a summary conviction offence, which resulted in a conviction under the Criminal Code, that constituted misconduct within the meaning of the Act. The inability to fulfill a condition of employment resulted from that misconduct and entailed as a consequence the loss of employment. Thus the loss of employment was due to misconduct.

[9] That being said, we agree with the applicant that consumption of alcohol, even if not in excessive quantity, may amount to misconduct depending on the facts and circumstances. In fairness to the Umpire, his impugned statement that "the act of consuming alcohol does not consist of an act of misconduct unless it can be shown that the consumption was excessive" must be read in the context of the facts of this case where an impaired driving charge had been laid, but not processed yet, under the Criminal Code and where drinking and driving under that Code is illegal only if the amount of alcohol ingurgitated exceeds the level permitted by the Code. When the impugned statement is read in context and in conjunction with his statement in the preceding paragraph that "the Commission proceeded on the premise that the charge of impaired driving without more consists of misconduct", we do not think that it conveys the meaning and carries the weight that the applicant sees in it.

[10] Rather it appears to us that the conclusion of the Umpire that the appeal be dismissed results from a total lack of evidence as to the cause and legality of the suspension of the claimant's driving license. On the one hand, there was no conviction under the Criminal Code and, therefore, no ascertainable misconduct yet from that perspective which would have caused the loss of employment. As a matter of fact, the prohibition against driving would have been issued upon conviction and would have taken effect at that time, thereby causing the loss of employment at that moment only. On the other hand, although the fact of the suspension itself was proven, there was not even on the record prima facie evidence as to the legal requirements that the driver's license be suspended. We understand from a reading of his decision that, had there been such evidence, his conclusion would have been different if the requirements had been met unless, of course, the claimant could have rebutted that prima facie evidence on a balance of probabilities. In other words, if proper evidence of the statutory foundation for the suspension had been filed, the Umpire would have been in a position to determine if the conditions or requirements for the suspension had been met. We have every reason to believe that, upon proof that the conditions were met, he would have concluded that the suspension was caused by a misconduct of the respondent and, therefore, that the loss of employment was due to that misconduct.

[11] However, on the basis of the record that he had before him, we cannot say that he erred in concluding as he did.

b) Whether the Umpire erred in law by concluding that a conviction was required in order to find misconduct

[12] The applicant also contends that the Umpire erred in law in concluding that a conviction on the charge laid was required in order to find misconduct. Had the Umpire done that, we would agree with the applicant. A misconduct may manifest itself in a form other than a violation of the law, of a regulation or of an ethical rule: see the Speckling case previously cited. However, the Umpire did not restrict his analysis of what constitutes misconduct to the charge laid and the lack of recorded conviction thereof. On the contrary, he showed his willingness "to examine the reason for the suspension for the purpose of determining whether claimant committed an act which may be considered misconduct": see excerpt of decision previously cited. However, as he said, no provisions of provincial statutes were filed which would have enabled him to perform such function. He cannot be blamed for the deficiencies in, or the incompleteness of, the record and for having taken it as is.

[13] This conclusion imposes no hardship on the Commission as section 48 of the Act provides that no benefit period shall be established unless the claimant provides the Commission information as to "the circumstances pertaining to interruption of earnings" and "such other information as the Commission may require". Consequently the Commission can satisfy the burden imposed upon it by making appropriate inquiries of the claimant.

[14] For these reasons, the application for judicial review will be dismissed.

(Sgd.) "Gilles Létourneau"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-444-02

STYLE OF CAUSE: The Attorney General of Canada v. Garth Granstrom

PLACE OF HEARING: Vancouver, British Columbia

DATE OF HEARING: December 18, 2003

REASONS FOR JUDGMENT OF THE COURT: Létourneau J.A.

Nadon J.A.

Pelletier J.A.

DELIVERED FROM THE BENCH BY: Létourneau J.A.

APPEARANCES:

Ward Bansley

FOR THE APPLICANT

No-one appearing

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Morris Rosenberg

Deputy Attorney General of Canada

Vancouver, British Columbia

FOR THE APPLICANT

Garth Grandstrom

(self-represented Respondent)

Kelowna, British Columbia

FOR THE RESPONDENT

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Canada (Attorney General) v. Granstrom, 2003 FCA 485

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2003 FCA 485