A-130-96
CORAM: THE
HONOURABLE MADAME JUSTICE DESJARDINS
THE
HONOURABLE MR. JUSTICE DÉCARY
THE
HONOURABLE DEPUTY JUSTICE CHEVALIER
BETWEEN: MICHEL
MEUNIER,
Applicant,
AND:
CANADA
EMPLOYMENT AND
IMMIGRATION
COMMISSION,
-and-
ATTORNEY
GENERAL OF CANADA,
Respondents.
REASONS FOR
JUDGMENT OF THE COURT
(Delivered
from the bench at Montréal
on
Friday, October 4, 1996)
DÉCARY J.A.
The applicant was a photographer
with the Journal de Montréal at the time he was charged with sexual
assault on two little girls, aged eight and nine years, respectively. As soon
as the employer was informed of the charge, it decided to suspend the applicant,
without pay, until the case had been decided. The applicant then applied for
unemployment insurance benefits. The Commission stated that it was of the
opinion that he had lost his employment by reason of misconduct (subsection
28(1) of the Unemployment Insurance Act[1]),
and disqualified the applicant from receiving benefits for a period of twelve
weeks (paragraph 30(c) of the Act, as it then read). A majority of the
board of referees ("the board") affirmed the Commission's decision,
as did the umpire.
It is settled that the
misconduct referred in subsection 28(1) "is not a mere breach by the
employee of any duty related to his employment; it is a breach of such scope
that its author could normally foresee that it would be likely to result in his
dismissal".[2]
It is also settled that the burden is on the Commission to prove, on the
balance of probabilities, that the section 28 conditions have been fulfilled.[3] And lastly, it is settled
that "an objective assessment [is] needed sufficient to say that
misconduct was in fact the cause of the loss of employment",[4] that an employer's mere
assurance that it believes the conduct in question is misconduct will not be
sufficient[5] and that "[f]or a
board of referees to conclude that there was misconduct by an employee, it must
have before it sufficiently detailed evidence for it to be able, first, to know
how the employee behaved, and second, to decide whether such behaviour was
reprehensible."[6]
In the instant case, the only
evidence in the record that came from the employer is the suspension letter
which the employer sent to the applicant at the time it learned that sexual
assault charges had been laid. The following passage is of interest:
[translation]
The
acts with which you are charged constitute serious and unacceptable wrongdoing
on the part of an employee of the Journal de Montréal. Moreover, according to
certain preliminary information, you used the name of the Journal de Montréal,
directly or indirectly, in the commission of those acts. (Applicant's record,
p. 21)
The employer refused to provide
any further explanation, preferring to refer the Commission to the police
officers in charge of the investigation, and did not even reply to the
following question which the Commission put to it in writing: [translation] "Was this outside
working hours?" (Applicant's record, p. 19).
In the submissions made by the
Commission to the board on April 7, 1992, it stated:
[translation]
In
these circumstances, the value of the parties' statements had to be assessed.
The employer was considered to be a responsible firm which acts in good faith.
It cannot engage in making such accusations without first obtaining serious
information. (Applicant's record, p. 31)
The board held a hearing on
April 28, 1992. The record was not as complete as it would have liked, and so
it adjourned to a later date, for the following reasons:
[translation]
Since
it is impossible to question the employer concerning the charges made against
its former employee, the Board of Referees asks that the Commission pursue the
investigation concerning the reason for the separation from employment, and if
possible to have a copy of the incident from the police station
concerning the complaint which is in issue in this case. (Applicant's record,
p. 44 - emphasis in the original)
On May 27, 1992, in reply to
this request to do further investigation, the Commission forwarded the
following additional submissions to the Commission:
[translation]
First,
we are of the opinion that all the facts available in connection with the
claimant's separation from employment are in the record (see, inter alia,
Exhibits 4, 6 and 8). Both parties, the claimant and the employer, have
provided their accounts and their views, and in our opinion nothing would be
gained by pursuing the investigation.
On
the question of the police report, we would draw the board of referees'
attention to the fact that it is not the Commission's policy to request a
police report in cases involving criminal charges since the Commission does not
have to establish the claimant's guilt. Its burden of proof is limited to
establishing that the employer acted in good faith and on reasonable grounds
when it dismissed the claimant. (Applicant's record, p. 45 - emphasis in the
original)
On November 12, 1992, the board
of referees rendered the following majority decision:
[translation]
The
Chairperson and the Employer Representative are of the opinion that the
criminal charge reported in the newspaper was the result of a preliminary
investigation by the MUC which was required to base its decision on sufficient
evidence to lay the charge. Given these facts, the employer was then able to
establish that there had been misconduct on the part of its employee, and it
took the necessary measures to protect its reputation by suspending him
indefinitely.
The dissenting member, on the other hand, was of the
opinion that neither the Commission nor the employer had proved the claimant's
misconduct.
On November 30, 1995, the umpire
made the decision a quo, from which we shall reproduce the following
passage:
[translation]
It
is clear that it is generally not sufficient that charges be laid. In the
instant case, however, I am of the opinion that all the circumstances, taken as
a whole, were entirely such as might constitute misconduct within the meaning
of subsection 28(1) of the Act. It was therefore for the board of referees to
decide whether there had in fact been misconduct. There is nothing in section
80 of the Act that compels me, or persuades me, to intervene.
We are compelled to observe
that, essentially, the only evidence in the Commission's file was the
employer's account of the facts, remarkably vague and speculative though that
account was. In its written submissions to the board, the Commission stated
that from the outset it accepted the employer's explanation because, in its
view, it could not be that the employer, "a responsible firm which acts in
good faith", could have "[made] such accusations without first
obtaining serious information". Not only did the Commission not seek to
verify the nature and validity of the "preliminary information" on
which the employer stated it had relied, but in addition, despite the board's
request that it do further investigation, it deemed it pointless to pursue the
investigation.
In our view, the Commission has
not done its duty. In order to establish misconduct such as is penalized by
section 28, and the connection between that misconduct and the employment, it
is not sufficient to note that criminal charges have been laid which have not
been proven at the time of the separation from employment, and to rely on
speculation by the employer without doing any other verification. The
consequences of loss of employment by reason of misconduct are serious. The
Commission, and the board of referees and the umpire, cannot be allowed to be
satisfied with the sole and unverified account of the facts given by the
employer concerning actions that, at the time the employer makes its decision,
are merely unproved allegations. Certainly, the Commission will be more easily
able to discharge its burden if the employer made its decision, for example,
after the preliminary inquiry had been held and, a fortiori, if it made
the decision after the trial.
We therefore find that the
Commission failed to discharge the burden of proving the applicant's misconduct
within the meaning of section 28 of the Act, either before the board of
referees or before the umpire.
The application for judicial
review will be allowed, the decision a quo will be set aside and the
matter will be referred back to the Chief Umpire or to an umpire designated by
him to be redetermined on the basis that, for the purposes of the application
of subsection 28(1) of the Unemployment Insurance Act, it had not been
established that the applicant lost his employment by reason of his own
misconduct.
Robert Décary
J.A.
Certified true translation
C. Delon, LL.L.
Email this Content