A-402-96
DÉCARY, J.A.
McDONALD, J.A.
B E T W E E N:
KAREN MCKAY-EDEN
Applicant
-and-
HER MAJESTY THE QUEEN
Respondent
HEARD at Toronto, Ontario, Wednesday, May 28, 1997.
JUDGMENT delivered from the Bench at Toronto, Ontario, on Wednesday, May 28, 1997.
REASONS FOR JUDGMENT OF THE COURT BY: McDONALD, J.A.
A-402-96
DÉCARY, J.A.
McDONALD, J.A.
B E T W E E N:
KAREN MCKAY-EDEN
Applicant
-and-
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario,
on Wednesday, May 28, 1997)
McDONALD. J.A.:
The applicant was a nurse at Toronto Hospital (General Division). Since 1992, that hospital had a strict policy regarding the confidentiality of medical records. Specifically, an individual is permitted to access confidential medical records only if the patient is under the care of that individual or if the individual has authorization to access the records.
The applicant was the in-charge nurse and was responsible for inputting data into the computer system on the night of 8 July, 1993. The applicant had a friend who had been in the hospital and she was curious as to whether the friend was still a patient, and if she was, which room was she in. With a view to acquiring only this information, the appellant inputted the friend's name. Instead of displaying only the room number, the computer displayed the friend's medical chart. She immediately removed the patient's medical information from the screen. Nevertheless, this was a breach of the hospital's confidentiality policy and she was dismissed.
Unfortunately, the Umpire and the Board made no specific findings as to whether they considered the applicant's conduct to be wilful or reckless. Moreover, there is no evidence that could have led the Board or the Umpire to a finding of wilfulness.
Their comments suggest that they accepted her version of events. They characterized the applicant's accessing of confidential information as "inadvertent".
In our view, for conduct to be considered "misconduct" under the Unemployment Insurance Act, it must be wilful or so reckless as to approach wilfulness. It appears to us that the Umpire did not turn his mind to whether the conduct of the applicant was wilful or reckless to the point of being wilful1.
This section 28 application will be allowed, the decision of the Umpire set aside and the matter referred back to the Chief Umpire or an Umpire designated by him for redetermination on the basis that the applicant did not lose her employment by reason of her own misconduct.
"F.J. McDonald"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: A-402-96
STYLE OF CAUSE: KAREN MCKAY-EDEN
- and -
DATE OF HEARING: MAY 28, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: McDONALD, J.A.
Delivered from the Bench at Toronto, Ontario
on Wednesday, May 28, 1997
APPEARANCES:
Mr. Timothy G. Hadwen
For the Applicant
Mr. Robert H. Jaworski
For the Respondent
SOLICITORS OF RECORD:
Timothy G. Hadwen
Barrister and Solicitor
Ontario Nurse's Association
85 Greenville Street
Suite 400
Toronto, Ontario
M5S 3A4
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: A-402-96
Between:
KAREN MCKAY-EDEN
Applicant
- and -
Respondent
REASONS FOR JUDGMENT
__________________
1 Canada v. Tucker, [1986] 2 F.C. 329.
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