Docket:
A-184-13
Citation: 2013
FCA 235
CORAM:
BLAIS C.J.
DAWSON J.A.
O’REILLY J.A. (ex
officio)
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BETWEEN:
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LOI THANH VO
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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Heard at Calgary, Alberta, on October 01, 2013.
Judgment delivered at Calgary, Alberta, on October 03, 2013.
REASONS FOR JUDGMENT OF THE COURT BY: DAWSON J.A.
CONCURRED IN BY:
BLAIS C.J.
O’REILLY
J.A (ex officio)
Docket:
A-184-13
Citation:
2013 FCA 235
CORAM:
BLAIS C.J.
DAWSON J.A.
O’REILLY J.A. (ex
officio)
|
BETWEEN:
|
|
LOI THANH VO
|
|
Applicant
|
|
and
|
|
ATTORNEY GENERAL OF CANADA
|
|
Respondent
|
REASONS FOR JUDGMENT
DAWSON J.A.
[1] Subject
to certain exceptions which do not arise on the facts of this case, subsection
30(1) of the Employment Insurance Act, S.C. 1996, c.23 (Act)
disqualifies a claimant from receiving unemployment benefits if the claimant
lost any employment because of his or her misconduct.
[2] The
Canada Employment Insurance Commission (Commission) decided that Mr. Vo, the
applicant, was not entitled to receive unemployment benefits under the Act
because he lost his employment on the basis of his own misconduct.
[3] The Board
of Referees (Board) then dismissed the applicant’s appeal to it from the
Commission’s decision.
[4] Subsequently,
an Umpire dismissed the applicant's appeal from the decision of the Board
(CUB 80743). The
Umpire found the Board's decision to be well-founded in fact and in law.
[5] The
applicant now seeks judicial review of the decision of the Umpire.
[6] The
applicant's employer provided documentation to the Commission (including two
witness statements) which stated that the applicant was dismissed from his
employment for cause because he violated the employer's workplace violence
policy. According to the employer, the applicant started an argument with a
co-worker which ended with the applicant threatening to stab the co-worker with
a tool. As a result, the applicant was told he was being dismissed for cause.
Shortly thereafter, the applicant stabbed the plant superintendent.
[7] Before
the Board and the Umpire, the applicant submitted that he was framed by
co-workers who falsely claimed that he made threats. However, in its decision
the Board wrote that during the hearing before it the applicant admitted to
threatening co-workers when they would not listen to him. On the evidence
before it, including the applicant’s admission, the Board accepted that the
applicant was dismissed on the ground that he had threatened one or more
co-workers, and this constituted misconduct within the meaning of subsection
30(1) of the Act.
[8] On this
application, the applicant again argues that his co-workers conspired and
fabricated their story that he threatened a co-worker. He says that he only hit
or stabbed the superintendent after he had been told that he was being
dismissed. He claims he reacted in this manner because he was angry at being
fired in such an unfair manner.
[9] However,
as explained to the applicant at the hearing, as a court sitting on judicial
review we are not permitted to substitute our view of the evidence for that of
the trier of fact. The Umpire could only interfere with the Board’s finding of
fact if they were unreasonable. In turn, we may only interfere with the decision
of the Umpire if he applied the reasonableness standard of review incorrectly.
[10] This
means we are unable at law to find that the applicant’s co-workers conspired against
him. We are limited to searching for reviewable error on the part of the Umpire
and returning the case to the office of the Chief Umpire if such error is
found.
[11] In the
present case, the Board had the opportunity to hear the applicant's explanation.
It was open to it on the evidence to prefer the information provided by the
employer to that provided by the applicant. This is particularly so when the
applicant did not provide any written statement from another co-worker to
support his version of events and when he admitted before the Board to
threatening co-workers.
[12] The
applicant has not suggested any error that would render the Umpire’s decision
unreasonable.
[13] Therefore,
I would dismiss the application for judicial review. The respondent does not
seek costs, therefore I would not award costs.
"Eleanor R. Dawson"
“I agree
Pierre Blais
C.J.”
“I agree
O’Reilly J.A. (ex
officio)”
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