Date: 19990415
Docket: A-291-98
CORAM: STONE J.A.
LINDEN J.A.
ROBERTSON J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
DAVID K. MORRIS
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario on
Thursday, April 15, 1999)
ROBERTSON J.A.:
[1] This application for judicial review seeks to set aside a decision of an Umpire under the Unemployment Insurance Act. The Umpire had allowed an appeal from the majority decision of the Board of Referees, upholding the Commission's determination that the respondent had lost his employment due to his own misconduct. In allowing the appeal, the Umpire reasoned that once the employer withdrew the allegations of misconduct pursuant to a settlement agreement, there was no factual basis for supporting a finding of dismissal for cause. In our respectful view, the learned Umpire erred.
[2] According to the jurisprudence of this Court (not argued before the Umpire), the mere existence of a settlement agreement is not determinative of whether an employee was dismissed for misconduct: see Canada (A.G.) v. Peruss (December 14, 1981), A-309-81 (F.C.A.) [unreported], Canada (A.G.) v. Wile (November 30, 1994), A-233-94 [unreported], and Canada (A.G.) v. Boulton (1990), 208 N.R. 63 (F.C.A.).
[3] It is the Board's function to assess the evidence and to arrive at its own conclusions. It is not bound by how the employer and employee characterize the grounds on which the employment was terminated. In the present case, there was sufficient documentary evidence available to the Commission and the Board to justify a finding of misconduct. The fact that the settlement agreement required the employer to withdraw the allegation of dismissal for cause cannot be treated as conclusive of whether there was actually misconduct for purposes of the Act. This is particularly true since the settlement agreement did not include an admission by the employer, either express or implicit, that the dismissal for cause was not fully justified.
[4] The respondent also contends that the Board's decision constitutes a denial of natural justice because of the Board's reliance on written statements of third parties. Those statements, which were addressed to the respondent's employer, served as the basis for the employer's decision to terminate the respondent's employment. Counsel for the respondent claims that the respondent's viva voce testimony refutes the "hearsay documentary evidence". This argument was rejected by the Umpire on the ground that the Board has jurisdiction to weigh the evidence and to make findings of credibility. We agree. Moreover, it is clear that a Board may hear and accept hearsay evidence: see Canada (A.G.) v. Mills (1984), 60 N.R. 4 (F.C.A.).
[5] The Board's sole responsibility in this regard is to give the claimant a fair opportunity to comment on and contradict evidence presented by the Commission. The decision in Lawrence CUB 10720, cited by the Umpire, can be readily distinguished. In that case, the claimant's evidence was corroborated by that of another witness.
[6] For these reasons, the decision of the Umpire, dated March 26, 1998, should be set aside and the matter remitted to the Chief Umpire or his designate on the basis that the appeal from the decision of the Board should be dismissed.
"J.T. Robertson"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-291-98
| STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA |
- and -
DATE OF HEARING: THURSDAY, APRIL 15, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: ROBERTSON J.A.
Delivered at Toronto, Ontario
on Thursday, April 15, 1999
APPEARANCES: Ms. Janice D. Rodgers
Mr. Michael Mazzuca
For the Respondent
| SOLICITORS OF RECORD: Morris Rosenberg |
Deputy Attorney General
of Canada
Koskie Minsky
Barristers & Solicitors
20 Queen Street West
Suite 900, Box 52
Toronto, Ontario
M5H 3R3
For the Respondent
| |
THE ATTORNEY GENERAL OF CANADA |
|
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