[2] The facts of this case cannot be distinguished from those found in Canada (Attorney General) v. Churchi, 2003 FCA 456, where this Court ruled that failure to pay child support, in the absence of a valid explanation or justification, amounts to misconduct within the meaning of subsection 30(1) of the Employment Insurance Act, S.C. 1996, c. 23.

[3] The respondent indicated to the Commission in his application for unemployment benefits that he quit his job because he had lost his driving license, the holding of which was a condition of employment. The Commission denied the benefits on the basis that the respondent had voluntarily left his employment without just cause. The employer confirmed to the Commission that the respondent would have been demoted to part-time seasonal work as a result of his losing his driving license because the full-time work required such license. The Board of referees (Board) allowed the appeal from the respondent because it was of the view that the respondent had committed no discernable misconduct.

[4] There seems to have been, before the Board and the Umpire, some tergiversation as to whether the cause of the disqualification from benefits was "dismissal for misconduct" or "voluntarily leaving employment without just cause". The Board saw the issue of disqualification as one based on misconduct while the Umpire defined it in terms of just cause for quitting the employment. We wish to reiterate that it does not matter whether the employer or the employee took the initiative in severing the employment relationship where the employment is terminated by necessity and a reprehensible act is the real cause of that termination: see Canada (Attorney General) v. Borden, 2004 FCA 176. As Marceau J.A. said in Smith v. Canada (Attorney General), [1998] 1 F.C. 529 (F.C.A.) at paragraph 6, it is then "misconduct exclusive of just cause whether you approach it from either of the two branches of subsection 28(1)", now 30(1). The rationale is simple: the legal issue at stake is a disqualification under subsection 30(1) of the Act and a finding to that effect can be based on any of the two grounds for disqualification stated in that subsection as long as it is supported by the evidence: see Borden, supra, at paragraph 6. "There is no prejudice to a claimant in so doing because the claimant knows that what is sought is a disqualification from benefits and he is the one who knows the facts that led to the seeking of the disqualification order": ibidem.

[5] In the present instance, both the Board and the Umpire misunderstood the notion of misconduct in subsection 30(1) of the Act. Had they not misconstrued the law, they would have come to the conclusion that the respondent was properly disqualified from unemployment benefits under subsection 30(1).

[6] For these reasons, the application for judicial review will be allowed, the decision of the Umpire will be set aside and the matter will be referred back to the Chief Umpire, or to an Umpire that he designates, for a redetermination on the basis that the appeal of the Commission against the decision of the Board of referees, dated March 13, 2003, be allowed and the respondent found to be disqualified from unemployment benefits pursuant to subsection 30(1) of the Act.

"Gilles Létourneau"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-78-04

STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v.

BARRY C. DESSON

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: THURSDAY SEPTEMBER 16, 2004

REASONS FOR JUDGMENT

OF THE COURT BY : (LÉTOURNEAU, SHARLOW, MALONE J.J.A.)

DELIVERED FROM THE

BENCH BY : LÉTOURNEAU J.A.

APPEARANCES:

Ms. Sharon McGovern FOR THE APPLICANT

No one appearing FOR THE RESPONDENT

SOLICITORS OF RECORD:

Morris Rosenberg

Deputy Attorney General of Canada

Toronto, Ontario FOR THE APPLICANT

Mr. Barry C. Desson

Niagara Falls, Ontario FOR THE RESPONDENT

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Canada (Attorney General) v. Desson, 2004 FCA 303

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2004 FCA 303