Date:
20090616
Docket:
A-636-08
Citation:
2009 FCA 207
CORAM: DÉCARY
J.A.
LINDEN J.A.
EVANS
J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
DAVID TOMPSON
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Vancouver, British Columbia, on June 16,
2009)
EVANS J.A.
[1]
This is an
application for judicial review by the Attorney General of Canada to set aside
a decision of Umpire Teitelbaum (CUB 71295). The Umpire had allowed an
appeal by David Tompson from a decision of the Board of Referees dismissing his
appeal from a determination by the Employment Insurance Commission that he was
disqualified from receiving employment insurance benefits because he had been
dismissed from his employment for misconduct: see Employment Insurance
Act, S.C. 1996, c. 23, subsection 30(1) (“Act”).
[2]
The
Attorney General submits that the Umpire erred in law because he reweighed the evidence
and substituted his own findings of fact for those made by the Board. An Umpire
is only entitled to reverse a decision by a Board for error of fact when the
finding was made in a perverse and capricious manner or without regard for the
evidence before it: paragraph 115(2)(c) of the Act. The Attorney General
says that there was evidence before the Board that Mr Tompson left for vacation
when he knew that his employer had not approved his request for leave. Based on
this finding, the Attorney General argues, the Board could reasonably conclude
that Mr Tompson was dismissed for misconduct, and therefore disqualified from
receiving benefits.
[3]
The Umpire
held that there was no evidence supporting the Board’s finding of fact that Mr
Tompson left for vacation knowing that his request for leave had not been
approved. The Umpire’s view of the evidence led him to the view that there had
been a miscommunication between Mr Tompson and his employer, as a result of
which Mr Tompson assumed that his request had been approved because he had not
been advised that it had been refused.
[4]
The
evidence on the record is not altogether clear. However, it is agreed that Mr
Tompson requested vacation leave and that soon afterwards, before his request
for leave had been considered by the employer, he cancelled the request. The
operations manager of the employer said that Mr Tompson had spoken to him on
his cellular telephone to tell him that he was cancelling his request for
leave. Mr Tompson, on the other hand, says that he spoke to “dispatch” and
asked that the employer be informed that he had cancelled his request for
vacation leave.
[5]
Mr Tompson
says that he telephoned “dispatch” later that day to tell the employer that he
had changed his mind again and now wanted to reinstate his request for leave.
The operations manager says that he did not receive this message and that there
is no record of its receipt by “dispatch”. It is agreed, however, that the
employer did not approve a leave for Mr Tompson.
[6]
The Board
had before it the notes that an officer of the Commission had made of a
telephone conversation that she had had with Mr Tompson when investigating his
claim for employment insurance benefits. The notes stated:
I asked the claimant if his leave request
had been signed and the leave approved.
He said no. I asked why he wouldn’t have
contacted the employer to find out why.
He said it wasn’t disapproved and
everyone knew he was going.
The officer also recorded Mr Tompson’s allegation that the
employer was simply looking for an excuse to dismiss him because he had had a
grievance in the previous year.
[7]
In its
reasons, the Board stated that Mr Tompson confirmed that he went on vacation
knowing that his request had not been approved. This would appear to be a
reference to Mr Tompson’s oral evidence.
[8]
The Board
did not reject Mr Tompson’s uncontradicted evidence that he asked for his
request for leave to be reinstated and, hearing nothing, assumed that his leave
had in fact been approved, even though he had not received formal notification
in accordance with company policy. Mr Tompson told the Commission’s officer
that his assumption was based on the fact that he had ample accrued holiday
time and had the most seniority. In view of this evidence, it was unreasonable
for the Board to have concluded that he went on vacation “knowing it had not
been approved”.
[9]
The most
that the Board could have found on the evidence before it was that Mr Tompson
went on vacation when he knew that he had not received formal approval of his
leave request and he did not try to confirm that his request for leave had in
fact been approved. The Commission’s officer’s notes of her conversation with
Mr Tompson are not inconsistent with this view.
[10]
Leaving
for vacation without receiving written approval, but assuming that it had been
approved, is materially different from the Board’s finding that he left knowing
that his request had not been approved. While this conduct might warrant
disciplinary action by the employer, it is not clearly so serious a breach of
duty in the circumstances of this case as to constitute “misconduct” within the
meaning of the Regulations and thus to disqualify the employee from receiving
employment insurance benefits.
[11]
Accordingly,
we are not persuaded that the Umpire committed any reviewable error in setting
aside the Board’s decision on the ground that it was based on an unreasonable
finding of fact, namely, that Mr Tompson had gone on vacation “knowing it had
not been approved”.
[12] For these reasons, the Attorney General’s
application for judicial review will be dismissed.
“John M. Evans”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-636-08
(JUDICIAL
REVIEW OF AN ORDER OF MAX M. TEITELBAUM, UMPIRE, DATED NOVEMBER 7, 2008)
STYLE OF CAUSE: Attorney
General of Canada v. David Tompson
PLACE OF HEARING: Vancouver,
British Columbia
DATE OF HEARING: June 16, 2009
REASONS FOR JUDGMENT OF THE
COURT BY: (DÉCARY, LINDEN,
EVANS JJ.A.)
DELIVERED FROM THE BENCH BY: EVANS J.A.
APPEARANCES:
|
Lindsay Morphy
|
FOR
THE APPLICANT
|
|
David Tompson
|
On
his own behalf
|
SOLICITORS
OF RECORD:
|
John H. Sims, Q.C.
Deputy
Attorney-General of Canada
|
FOR THE APPLICANT
|
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