Docket: A-319-14
Citation: 2015 FCA 167
|
CORAM:
|
NOËL C.J.
SCOTT J.A.
BOIVIN J.A.
|
|
BETWEEN:
|
|
ANDRÉ THIBODEAU
|
|
Applicant
|
|
and
|
|
ATTORNEY
GENERAL OF CANADA
|
|
Respondent
|
REASONS FOR JUDGMENT
NOËL C.J.
[1]
This is an application for judicial review of a
decision of the Appeal Division of the Social Security Tribunal (Appeal
Division) setting aside the decision of a Board of Referees following a request
for a new hearing. After concluding first that the applicant was disqualified
from receiving benefits since he lost his employment because of his misconduct,
the Board of Referees reached the opposite conclusion by reason of a [translation] “new fact”.
[2]
More specifically, the dispute concerns the
impact of an agreement reached after the first decision was rendered and under
which the Board of Referees permitted itself to amend its original decision. At
issue are sections 30, 31 and 120 of the Employment Insurance Act,
S.C. 1996, c. 23 (the Act). All of these provisions are appended to these
reasons.
FACTS
[3]
At the time of his dismissal, the applicant was
working as a caretaker for the Office municipal d’habitation de Trois-Rivières
(the employer). The employer explained that the Cogeco Cable company had made a
complaint about the illegal use of its cable service. A viewing of the
surveillance camera video established that it was the applicant who had made
the unauthorized connection. He admitted having done this once before (Board of
Referees’ decision, applicant’s record at pages 61 and 62).
[4]
The applicant was dismissed on November 25,
2011.
[5]
Following his dismissal, the applicant filed an
application for benefits, which the Employment Insurance Commission (the
Commission) denied on the ground that he had lost his employment because of his
misconduct. In doing so, the Commission relied on the disqualification from receiving
benefits provided for in subsection 30(1) of the Act.
[6]
The applicant appealed the Commission’s decision
before a Board of Referees. He argued that he had acted out of compassion for a
person who was ill and living in poverty, that he was a good employee and that
the sanction was too severe. He also submitted that there was no clear policy establishing
that dismissal was an appropriate response to his conduct (Board of Referees’
decision, applicant’s record at pages 63 and 64).
[7]
The applicant’s appeal was dismissed in a
decision dated March 29, 2012. In its reasons, the Board of Referees noted
that the applicant committed the act a second time after Cogeco Cable had disconnected
his first hook-up. Although he pleaded that he had acted out of compassion, the
applicant chose not to consider the repercussions his actions could have on the
relationship of trust he had to maintain with his employer (Board of Referees’
decision, applicant’s record at page 66).
[8]
Shortly after this first decision was rendered,
the applicant filed a complaint with his union, alleging that he was not
properly represented when he was dismissed. This resulted in a tripartite
agreement signed by the applicant, his union and his former employer on
July 26, 2012.
[9]
The agreement in question, entitled [translation] “Settlement and Release” (the
agreement) (applicant’s record, Exhibit 16-3 at pages 69 and 70),
recognizes in its preamble that [translation]
“the parties wish to settle this dispute out of court
without any admission of responsibility on either side”. It provides
that, among other things, [translation]
“[t]he Employer agrees to substitute for the dismissal of
November 25, 2011 a suspension of three (3) weeks without pay”,
which [translation] “ended on December 9, 2011”, and that [translation] “[t]he
Employee relinquishes his right to reinstatement, which was to take place on December 12,
2011,” on which basis [translation]
“[t]he Employer agrees to pay [him] the sum of $2,000
(gross) . . .”.
[10]
On August 8, 2012, the applicant filed a
request for a new hearing before the Board of Referees under section 120
of the Act, as it read at the relevant time, citing to the agreement signed the
month before as a [translation] “new fact”. According to the applicant, by virtue of paragraph 30(1)(b)
and section 31, he was disentitled from receiving benefits for the
duration of his suspension and this nullified the Commission’s finding of
disqualification (letter from counsel for the applicant to the Board of
Referees dated August 8, 2012, applicant’s record at pages 67 and
68).
[11]
The request for a new hearing was granted and,
on November 26, 2012, the Board of Referees allowed, on the ground that
the agreement changed the [translation]
“nature of the sanction”, the appeal it had
initially dismissed. More specifically, the agreement confirmed that dismissal was
not the appropriate measure in the circumstances and that a three-week
suspension [translation] “should have” been imposed (Board of Referees’
decision, applicant’s record at page 95).
[12]
The Board of Referees’ decision cancelled the
disqualification imposed under sections 30 and 31 of the Act and confirmed
that the applicant’s disentitlement was to be limited to the duration of the
suspension for misconduct provided for in the agreement, that is, to the three
weeks ending on December 9, 2011.
[13]
This decision was immediately appealed before an
Umpire. As the matter was still pending on April 1, 2013, it was
transferred to the Appeal Division under the transitional provisions set out in
sections 266 and 267 of the Jobs, Growth and Long-term Prosperity Act,
S.C. 2012, c. 19.
[14]
The Appeal Division allowed the appeal on June 5,
2014. It is that decision that is the subject of the application herein.
IMPUGNED DECISION
[15]
The Appeal Division recognized that the
agreement was a new fact which was grounds for reconsideration by a Board of
Referees (Appeal Division’s reasons at paragraph 23). However, it
concluded that this new fact did not allow the Board of Referees to rescind its
previous decision.
[16]
According to the Appeal Division, the Board of
Referees’ failure to correctly apply the Act constituted an error of law that justified
intervention by the Appeal Division (Appeal Division’s reasons at paragraph 22).
[17]
The Appeal Division explained that “[n]othing in [the agreement] indicates that the employer
withdrew the allegation of misconduct made against [the applicant]”
(Appeal Division’s reasons at paragraph 28). The fact that the employer
agreed to substitute a suspension for the dismissal was not binding on the
Appeal Division (Appeal Division’s reasons at paragraph 29).
[18]
The Appeal Division concluded that, in the end, “nothing in the . . . agreement . . .
invalidates the employer’s position . . . before the Board of
Referees. . . .” (Appeal Division’s reasons at paragraph 32).
[19]
The Appeal Division also took note of the
applicant’s argument that “. . . sections 29,
30 and 31 of the Act explicitly exclude application of the disqualification in
sections 29 and 30 if section 31 applies, that is, if there is a
suspension” (Appeal Division’s reasons at paragraph 33).
[20]
According to the Appeal Division, this argument had
to be rejected because the applicant was dismissed on account of his
misconduct. The fact that, as a result of a subsequent agreement, he was
suspended rather than dismissed did not in any way change the nature of the
misconduct that led to his initial dismissal (Appeal Division’s reasons at paragraph 34).
[21]
Consequently, the Appeal Division set aside the
Board of Referees’ decision dated November 26, 2012, and upheld the
decision dated March 29, 2012.
PARTIES’ POSITIONS
[22]
The applicant finds fault with the Appeal
Division for having based its intervention on a finding that the Board of
Referees erred in law. In his opinion, the Board of Referees made no such
error. It simply placed its analysis in the appropriate legal context before accepting
the position that the effect of the agreement was to change the nature of the
sanction (applicant’s memorandum at paragraphs 23 to 28).
[23]
More specifically, the agreement changes the
nature of the sanction that [translation]
“should have been imposed” (applicant’s memorandum
at paragraph 30). Once it was accepted that the agreement replaced the
dismissal with a suspension, the effect of the suspension for misconduct was to
disentitle the applicant from receiving benefits for the duration of the
suspension and to render inapplicable for the entire benefit period the
disqualification for misconduct, in accordance with sections 30 and
31 of the Act (applicant’s memorandum at paragraph 32).
[24]
With regard to the loss of employment related to
his non reinstatement, the applicant contends that, in the absence of any
evidence in that connection, the loss of employment cannot be linked to
misconduct. There are several other possible explanations; for example, the job
was simply no longer available. According to the applicant, the burden of proof
in this regard was on the Commission (Meunier
v. Canada (Employment and Immigration Commission), [1996] F.C.J. No.
1347 (FCA) (QL), 1996 CanLII 3983 (FCA), at paragraph 2 (applicant’s
memorandum at paragraphs 33 to 35).
[25]
In addition to the foregoing, the applicant
submits that the Appeal Division erred in law by substituting its own
assessment of the facts for that of the Board of Referees. In the present case,
the Board of Referees’ conclusion is an acceptable outcome in light of the
evidence and the relevant case law (applicant’s memorandum at paragraphs 37
to 43).
[26]
Lastly, the Appeal Division erred in law in
adopting an unduly narrow interpretation of the applicable law. The Appeal
Division misapplied the criteria set out in Canada (Attorney General) v.
Boulton, [1996] F.C.J. No. 1682 (FCA) (QL), (1996), 208 N.R. 63 (FCA),
Vol. I at page 289 (applicant’s memorandum at paragraphs 48 to 65).
[27]
The respondent, for his part, submits that even
though the Appeal Division stated that it had identified an “error of law”, a careful reading of the reasons [translation] “rather
reveals an error of mixed fact and law since [it] found the Board of Referees’
decision with regard to the ‘new fact’ to be unreasonable” (respondent’s
memorandum at paragraph 30).
[28]
According to the respondent, the Appeal Division
was right to intervene because the Board of Referees did not explain how the
agreement affected its original decision or how that effect led it to conclude
that it had to rescind that decision (respondent’s memorandum at paragraph 14).
On that point, the agreement does not in any way alter the nature of the
misconduct that the Board of Referees noted in its first decision (respondent’s
memorandum at paragraph 22).
[29]
In any event, the applicant either lost his employment
as a result of his misconduct or left his job voluntarily without just cause.
In either case, the applicant was disqualified from receiving benefits
(respondent’s memorandum at paragraph 29).
[30]
In that regard, the respondent questions the
applicant’s interpretation of sections 29, 30 and 31 of the Act, which is
that the disqualification provided for in sections 29 and 30 cannot apply where
section 31 applies, such as in the case of a suspension.
[31]
In the case at bar, the applicant lost his
employment as a result of his own voluntary actions. He then attempted to
escape disqualification by negotiating a settlement and retroactively
substituting for his dismissal a temporary suspension combined with a renunciation
of reinstatement. Whether he lost his employment because of his misconduct or
because he left it voluntarily, the applicant must be disqualified from
receiving benefits under section 30 of the Act (applicant’s memorandum at paragraph 40).
ISSUE
[32]
The application for judicial review raises the
question whether, in light of the applicable standard of review, the Appeal
Division could rescind the Board of Referees’ second decision and uphold the
first one.
[33]
The Appeal Division justified its intervention
on the ground that the substitution of a suspension for the dismissal under the
agreement did not alter the fact that the applicant had lost his employment as
a result of his misconduct.
[34]
The Appeal Division also noted the fact that
under the agreement the applicant had relinquished his right to be reinstated (Appeal
Division’s decision at paragraph 26); it noted as well the applicant’s
argument that this relinquishment did not disqualify him from receiving
benefits under subsection 30(1) (Appeal Division’s decision at paragraph 33).
STANDARD OF REVIEW
[35]
In determining the proper standard of review in
a judicial review context, the Court must engage in a two-step process. First,
it must ascertain whether the jurisprudence has already determined in a
satisfactory manner the degree of deference to be accorded with regard to the
category of question raised by the application for judicial review (Dunsmuir
v. New Brunswick, 2008 SCC 9 at paragraph 57 [Dunsmuir]).
When the previous jurisprudence provides the answer and when this answer has
not been excluded by evolving case law, the Court may rely on that
jurisprudence (Agraira v. Canada (Public Safety and Emergency
Preparedness), 2013 SCC 36 at paragraph 48). Otherwise, the
Court must perform its own analysis to determine the applicable standard (ibidem).
[36]
In the case at bar, there is no decision in
which this Court was called upon to identify the standard applicable to the
review of a decision of the Appeal Division concerning the application of the
Act. This can be explained by the fact that the Appeal Division has recently taken
on the role previously fulfilled by the Board of Referees and the Umpire. We must
therefore perform our own analysis.
[37]
Deference will usually result where a tribunal
is interpreting its own statute or statutes closely connected to its mandate
(Alberta (Information and Privacy Commissioner) v. Alberta Teachers’
Association, 2011 SCC 61 at paragraph 30 [Alberta
Teachers’]). In the present case, the Act is closely connected with the
Appeal Division’s mandate, hence deference is presumed to be owed unless a
particular consideration militates against this.
[38]
Indeed, Alberta Teachers’ indicates that
a court may set aside this presumption when the nature of the question raised
by the matter before warrants it. Such questions include questions that are of central
importance to the legal system and that are outside the adjudicator’s
expertise, questions regarding the jurisdictional lines between competing
specialized tribunals and true questions of jurisdiction (Atkinson v. Canada
(Attorney General), 2014 FCA 187 at paragraph 25 [Atkinson]).
[39]
No such question has been raised in the case at
bar. The Court has only to determine whether the Appeal Division erred in
refusing to accept the Board of Referees’ reasons with respect to the impact of
the agreement on the application of section 120, subsection 30(1) and
paragraph 31(b) of the Act.
[40]
The presumption that the reasonableness standard
is the appropriate one may also be set aside if an analysis of the Dunsmuir
factors points towards a correctness review (Atkinson at paragraph 25).
In Atkinson, Justice Trudel, writing for this Court, performed the
analysis proposed in Dunsmuir and found that the reasonableness standard
was not excluded. While this analysis was performed as part of a judicial review
of a decision of the Appeal Division interpreting a different statute, namely, the
Canada Pension Plan, R.S.C. 1985, c. C-8, it was based mainly on
the Appeal Division’s own statute, that is, the Department of Employment and
Social Development Act, S.C. 2005, c. 34. I adopt the reasons of Justice
Trudel with regard to the need to apply a deferential standard in reviewing the
Appeal Division’s decisions (Atkinson at paragraphs 27 to 31).
[41]
I therefore propose to review against a standard
of reasonableness the issues raised in the present application as decided by
the Appeal Division.
[42]
The analysis of the applicable standard of
review must however be taken further. Indeed, we must also examine which
standard the Appeal Division was required to apply in reviewing the Board of Referees’
decision.
[43]
In that regard, the Appeal Division indicated
that it was gradually taking on the role that had previously belonged to the
Office of the Umpire and that the appeal from the Board of Referees’ decision
was part of this transition (Appeal Division’s reasons at paragraphs 6 and
7). The Appeal Division based its review on the grounds of appeal that were
available immediately before April 1, 2013, and on the case law dealing
with the standard of review applicable under the former scheme (Appeal Division’s
reasons at paragraphs 7 and 15, citing subsection 115(2) of the Act,
Martens v. Canada (Attorney General), 2008 FCA 240 [Martens],
and Canada (Attorney General) v. Hallée, 2008 FCA 159).
[44]
The Appeal Division took this approach because, in
its view, the applicant was entitled to expect that he would be subject to the rules
that were in effect when he filed his appeal before the Umpire. No one is
challenging this aspect of the Appeal Division’s decision, and I find the
solution that the Appeal Division adopted, which took into account the
applicant’s legitimate expectations, to be at least reasonable. Having said
that, I express no opinion on which standard will apply to the review by the
Appeal Division of decisions rendered by the General Division under the new
scheme.
[45]
According to the case law relied on by the
Appeal Division, decisions of a Board of Referees on questions of law must be
reviewed on a correctness standard by the Umpire (Martens at paragraphs 30
and 31). More accurately, a Board of Referees, in determining whether a fact is
a “new fact” within the meaning of section 120 of the Act, that is, a fact
that would allow the Board to rescind a previous decision, must follow the proper
legal approach as failing to do so will result in an error in law (Canada
(Attorney General) v. Hines, 2011 FCA 252 at paragraphs 16
and 17). On the other hand, the question of whether a “new fact”, once it has
been correctly identified, will lead to a previous decision being varied or
amended, gives rise to a question of mixed fact and law, which must be reviewed
on the standard of reasonableness.
DECISION
[46]
In the case at bar, the respondent recognizes
that the agreement is a “new fact” in that it was reached after the Board of
Referees’ first decision was issued (respondent’s memorandum at paragraph 33).
The respondent submits, however, that this “new fact” did not allow the Board
of Referees to amend its first decision and that the Appeal Division acted
reasonably in rescinding the Board of Referees’ second decision.
[47]
On that point, there are, in my opinion, two
independent reasons that justify the Appeal Division’s decision, in light of
the applicable standard of review. The first is based on the fact that the
Board of Referees, after it found that the agreement changed the sanction by
imposing a suspension rather than dismissal, should have pursued its analysis.
Indeed, as the applicant relinquished the right to be reinstated under the
terms of the agreement, the Board of Referees should have considered whether he
was not disqualified from receiving benefits in any event. The second reason
raises the question of whether, regardless of the answer to the first question,
the agreement allowed the Board of Referees to amend its first decision.
[48]
Regarding the first reason, the applicant relied
on paragraph 30(1)(b) of the Act, which specifies that subsection 30(1)
does not apply if a person is disentitled under section 31, in particular in
the case of a suspension. The applicant argues that the Board of Referees had
to terminate its analysis after finding that his dismissal had been replaced by
a suspension, since, in that case, only his disentitlement during the time of
his suspension could be contemplated.
[49]
Suffice it to say in this regard that disentitlement
under section 31 does not preclude disqualification of the claimant from
receiving benefits under section 30 when the disentitlement period
expires.
[50]
For example, a claimant who has been suspended
from his or her employment for three weeks is disentitled from receiving
benefits during that period under paragraph 31(b). If, at the end
of the suspension, the claimant chooses not to return to his or her job without
just cause, the disentitlement ends, and the claimant is then disqualified from
receiving benefits under subsection 30(1).
[51]
This reading gives effect to the grammatical
meaning of the words, read in context, and is consistent with Parliament’s
purpose, which is to assist those who have lost their jobs involuntarily.
[52]
On another note, counsel for the applicant argued
that there was no evidence concerning the cause of the loss of employment resulting
from his client’s non-reinstatement, hence it cannot be concluded that his
client voluntarily relinquished without just cause the right to hold his job.
He suggests that the applicant may, for example, have agreed to not being
reinstated because the position he had occupied [translation] “was simply no longer
available” (applicant’s memorandum at paragraph 33).
[53]
Suffice it to say in that regard this is a fact that
could have been easily established, and that, moreover, the absence of evidence
does not work in the applicant’s favour. It was the applicant who raised the existence
of a new fact to challenge the Board of Referees’ first decision, and the
burden was on him to establish that he was entitled to benefits in light of the
agreement he had signed. To do so, he had to bring this issue before the lower
tribunals and demonstrate that the relinquishment of his right to be reinstated
was attributable to something other than the $2,000 he received under the terms
of the agreement [translation] “for relinquishing his right to reinstatement”.
[54]
In the absence of evidence to the contrary, the
agreement must be accepted as it reads.
[55]
Counsel for the applicant also argued during the
proceedings that the agreement provided a reconstructed version of the facts
and that, realistically, his client could not have renounced reinstatement when
the suspension ended, on December 12, 2011 (agreement at paragraph 4).
If I understood him correctly, this aspect of the agreement does not accurately
reflect the facts and should not be taken into account.
[56]
It goes without saying that all aspects of the
agreement are the product of a reconstruction of past events, and I fail to see
how we can disregard aspects of the agreement that do not support the applicant’s
position and only consider those that do.
[57]
I therefore conclude that the Board of Referees,
after finding that the agreement had the effect of changing the sanction,
should have continued its analysis and that, had it done so, it could not have done
otherwise than conclude that the applicant was disqualified from receiving
benefits because he voluntarily left his employment without just cause within
the meaning of subsection 30(1) of the Act.
[58]
I find it useful to add that, in any event, the
Appeal Division acted reasonably in concluding that the agreement did not have
the effect of changing the sanction and therefore did not allow the Board of
Referees to vary its original decision.
[59]
Quite apart from the reasons stated by the
Appeal Division in this respect, the Board of Referees’ error is apparent in
the following sentence from the conclusion of its decision (Board of Referees’
decision, respondent’s record at page 95):
[translation]
The fact that the agreement stipulates that
a three-week suspension should have been and will be imposed [on the applicant]
instead of a dismissal truly constitutes a new fact within the meaning of section 120
of the Act.
[Emphasis
added.]
In so saying, the Board of Referees approved
the reading proposed by counsel for the applicant in his letter dated August 8,
2012, according to which [translation]
“. . . the parties have concluded that the
events giving rise to this dispute should only have resulted in a three-week
suspension” (applicant’s record at pages 67 and 68).
[60]
Yet the parties to the agreement specified that it
did not entail any admission of responsibility. The employer therefore did not
acknowledge that it [translation] “should
have” imposed a temporary suspension rather than a dismissal. To suggest that
the employer agreed that it took the wrong measure when the parties specified
that the agreement did not entail any admission of responsibility gives the
agreement a perverse effect since the parties agreed to change the sanction by
explicitly refusing to recognize that dismissal was not appropriate. It follows
that it was open to the Appeal Division to conclude that the Board of Referees’
interpretation of the agreement was not an acceptable one.
[61]
I therefore conclude that the Appeal Division
was entitled to rescind the second decision rendered by the Board of Referees
and to uphold its original one.
[62]
I would dismiss the application for judicial
review with costs.
“Marc Noël”
“I agree.
A.F. Scott J.A.”
“I agree.
Richard Boivin J.A.”
Ttranslation
Email this Content