[1] This application concerns the conduct of Casey Johnson who was dismissed by his employer, Purolator Courier Ltd. (Purolator) because he was found sleeping on the job. This was a second infraction; his first, some eleven months earlier, gave rise to a five day suspension. The ultimate issue before me is whether Mr. Johnson lost his employment by reason of his own misconduct so as to preclude his claim for benefits pursuant to subsections 30(1) of the Employment Insurance Act, S.C. 1996, c.23 (the Act). Misconduct is not defined in the Act.

[2] Prior to his termination in June, 2001, the respondent had worked for Purolator for five years on a night shift. During the last two years of his employment he had continuing problems with a new manager who had discontinued the practice of permitting a one-hour break for Mr. Johnson and a co-worker after cleaning out a trailer. There was a scheduled break from 1:15 to 1:30 a.m. each night, and in July of 2000 and again in June of 2001, Mr. Johnson fell asleep in a company van during the scheduled break.

[3] On the latter occasion, he was found asleep 75 minutes after the end of his scheduled break. According to the respondent, a build-up of factors including five years of night-work, the death of his mother, and the stress of an unreasonable superior contributed to these lapses. Although Mr. Johnson grieved his termination, Purolator denied the grievance on the basis that dismissal was the appropriate remedy. His union declined to intervene.

[4] Human Resources Development Canada (the Commission) determined that the respondent had lost his job due to his own misconduct and refused his benefits claim. However, a Board of Referees (the Board) allowed his appeal, concluding that mitigating circumstances demonstrated that he did not exhibit a wanton disregard for his employer's interests. Specifically, the majority found that his conduct was not accompanied by the element of wilfulness as required by this Court in Canada (A.G.) v. Tucker, [1986] 2 F.C. 329 and therefore did not constitute misconduct. The subsequent decision by an Umpire, reported as CUB 57202, confirmed the Board's decision that:

It was open to the Board to find, without violating reason or common sense, that the claimant did not intentionally sleep on company time. The majority found as a fact that the mental element of misconduct for sleeping on the job was lacking.

[5] This application for judicial review challenges the Umpire's decision on the basis that she erred in law by failing to intervene. The applicant argues that the Board did not apply the correct legal test for misconduct, and that the Umpire endorsed this by overstating a requirement of ill-intention. The applicant further claims that even if the legal test was properly defined, the Umpire should have found a reviewable error in the Board's finding that Mr. Johnson had not committed misconduct.

[6] This Court has set out the standards of review on which an Umpire should approach a decision of a board of referees, in Budhai v. Canada (Attorney General) (C.A.), [2003] 2 F.C. 57, namely the Umpire should afford no deference on questions of law, while findings of mixed law and fact should stand as long as they were reasonably open to the Board.

[7] In order to intervene with the Board's finding of fact or law, an Umpire must rely on subsection 115(2) of the Act which provides:

115.(2) The only grounds of appeal are that

115.(2) Les seuls moyens d'appel sont les suivants_:

(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

a) le conseil arbitral n'a pas observé un principe de justice naturelle ou a autrement excédé ou refusé d'exercer sa compétence;

(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the fact of the record; or

b) le conseil arbitral a rendu une décision ou une ordonnance entachée d'une erreur de droit, que l'erreur ressorte ou non à la lecture du dossier;

(c) the board of referees based its decision or order on an erroneous finding of fact that it had made in a perverse or capricious manner or without regard for the material before it.

c) le conseil arbitral a fondé sa décision ou son ordonnance sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments portés à sa connaissance.

[8] The legal test to determine misconduct under the Act was established by this Court in the Tucker decision, supra. Writing for the majority, MacGuigan J.A. approved the following excerpt from the Umpire's decision:

Black's Law Dictionary (1979, 5^th Ed.) says of misconduct:

Misconduct, which renders discharged employee ineligible for unemployment compensation, occurs when conduct of employee evinces willful or wanton disregard of employer's interest, as in deliberate violations, or disregard of standards of behaviour which employer has right to expect of his employees, or in carelessness or negligence of such degree or recurrence as to manifest wrongful intent ...

While the ... excerpt above does not relate to the Canadian Unemployment Insurance Act, 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.

[9] The Tucker analysis was further refined in the case of Canada (Attorney General) v. Secours (1995), 179 N.R. 132 (F.C.A.) where Létourneau J.A. wrote:

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.

[10] The Board stated in its decision:

...the Board is not persuaded that the claimant's actions can be characterized as either "wilful" or as "deliberate violations" so as to "manifest wrongful intent".

By limiting their definition of misconduct to wilful or deliberate action which manifests wrongful intent, the Board failed to apply the second branch of the legal test established in the Secours decision, i.e. that it is not necessary that there be wrongful intent for an act to amount to misconduct. This clearly is an error of law. It is sufficient if the act is done "consciously, deliberately or intentionally".

[11] In conducting her review, it was open to the Umpire under subsection 115(2) of the Act to intervene so as to correct this legal error. Instead, the Umpire repeated the error when she stated:

The majority found that the conduct of the claimant was not accompanied by the requisite element of wilfulness as required by Tucker... and therefore did not constitute misconduct. The law is clear that the misconduct such as would deprive a claimant of a right to benefits requires "ill-intention": Davlut A-241-82.

[12] The failure of the Umpire to intervene to correct a legal error pursuant to subsection 115(2) of the Act is itself a legal error and accordingly her decision must be set aside.

[13] In reviewing the Board's decision, the Umpire also erroneously focussed on whether the respondent "woke up, adverted to the requirement to be at work and then intentionally decided to go back to sleep". Instead, she should have focussed on whether, in falling asleep on his break without taking steps to ensure he would wake on time, the respondent had the necessary mental element.

[14] Accordingly, the application for judicial review should be allowed. The decision of the Umpire should be set aside and the matter referred back to the Chief Umpire or his designate for determination on the basis that the Commission's appeal from the decision of the Board of Referees should be allowed and the matter referred back to the Board for determination in a manner consistent with these reasons.

"B. Malone"

J.A.

"I agree

Marshall Rothstein

J.A."

"I agree

J.D. Denis Pelletier

J.A."

FEDERAL COURT

APPEAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-296-03

STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA

CASEY JOHNSON

PLACE OF HEARING: TORONTO

DATE OF HEARING: MARCH 1, 2004

REASONS FOR JUDGMENT BY: MALONE J.A.

CONCURRED IN BY: ROTHSTEIN J.A.

PELLETIER

DATED: MARCH 11, 2004

APPEARANCES:

APPLICANT: MS. SHARON MCGOVERN

RESPONDENT: MR.NELSON E.CAVALHEIRO

FOR APPLICANT: MORRIS ROSENBERG

DEPUTY ATTORNEY GENERAL

DEPARTMENT OF JUSTICE

ONTARIO REGIONAL OFFICE

130 KING STREET WEST

SUITE 3400, BOX 36

TORONTO, ON.M5X 1K6

FOR RESPONDENT: NELSON E.CAVALHEIRO

BARRISTER AND SOLICITOR

32 LEOPOLD STREET, SUITE 201

TORONTO, ONTARIO

M6K 1J9

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Canada (Attorney General) v. Johnson, 2004 FCA 100

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2004 FCA 100