Date: 20090318
Docket: A-62-08
Citation: 2009 FCA 91
CORAM: EVANS J.A.
RYER J.A.
TRUDEL J.A.
BETWEEN:
THE
ATTORNEY GENERAL OF CANADA
Applicant
and
RONALD
BIGLER
Respondent
Heard at Winnipeg, Manitoba, on March 17, 2009.
Judgment delivered at Winnipeg, Manitoba, on March 18, 2009.
REASONS FOR JUDGMENT BY: TRUDEL
J.A.
CONCURRED
IN BY: EVANS
J.A.
RYER
J.A.
Date:
20090318
Docket: A-62-08
Citation: 2009 FCA 91
CORAM: EVANS
J.A.
RYER
J.A.
TRUDEL
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
RONALD BIGLER
Respondent
REASONS FOR JUDGMENT
TRUDEL J.A.
[1]
The Employment
Insurance Commission (the Commission) denied
Mr. Bigler regular employment insurance benefits because it found that he had left his employment or been dismissed for misconduct. Consequently, pursuant to sections 29 and
30 of the Employment
Insurance Act, S.C.
1996, c.23 (the Act), it imposed on Mr. Bigler (the respondent or claimant) an
indefinite disqualification for regular benefits. The Board of Referees (the
Board) disagreed and found that the respondent’s conduct was a symptom of his
alcoholism, and not wilful misconduct as he "did not leave his employment but rather an illness prevented
him from going to work and contacting the employer about the illness" (applicant's record at
page 118). Umpire Goulard agreed with the Board (CUB 69656).
[2]
This is the Commission's application for
judicial review of the Umpire’s decision. Mr. Bigler was not in front of the
Umpire, but he had appeared in front of the Board and was permitted to make
oral submissions at the hearing of this application
for judicial review, despite
the absence of a respondent’s record.
[3]
Misconduct, under section 30 of the Act,
has been defined as conduct that is wilful, meaning conscious, deliberate or
intentional. When an employee has been dismissed for alcoholism-related
misconduct, he or she will not be disqualified from receiving unemployment
benefits pursuant to subsection 30(1), if both the fact of the alcoholism and
the involuntariness of the conduct in question are established.
[4]
The relevant
facts are straightforward.
The respondent's employment was terminated on June 2, 2006 because he had
failed to report to work or to contact his employer from June 3, 2006 to June
13, 2006. The evidence revealed that the respondent had gone on a drinking
binge from June 3rd to June 8th. On the 9th, he admitted himself into a detox
program where he remained for 10 days. The employer had assumed that the
respondent had abandoned his employment but was willing to discuss the
possibility of his reinstatement once the respondent had received a clean bill
of health. Unfortunately, several health issues deprived the respondent of that opportunity.
[5]
The key evidentiary findings supporting
the Board's decision that the "claimant’s conduct was not wilful but
simply a symptom of his illness" (Board’s decision, applicant’s
record at page 118) were as follows:
The Board found that the
claimant was let go by the employer. He was clearly ill during the 1 week
period that he was away from work and did not notify his employer of his
absence from work because of his
illness. The claimant has a history of mental illness and has been diagnosed
as an isolation drinker, meaning that when he becomes depressed and binge
drinks he completely isolates himself from the rest of society. His shame of
his behaviour is such that it prevents him from speaking or contacting others.
In this case, the landlord forced his way into the claimant’s apartment and
took charge of the situation,
forcing the claimant to get help. (Ibid.)
[6]
The Umpire accepted the Board's view that "the claimant suffered from a serious problem of alcoholism
which led him to act the way he did" (Umpire's decision, applicant’s
record at page 18) and upheld its decision
stating that "although in the case at bar there is no medical report to confirm that the claimant suffered from alcoholism, this can be deducted from the
evidence" (ibid.) (emphasis added). Having said this, the Umpire concluded
that the Board’s decision was entirely compatible with the evidence presented,
and was therefore not unreasonable. I disagree.
[7]
The Board's finding
that the claimant was an alcoholic was not dispositive of the issue as it was
not in itself sufficient to displace the voluntariness of his consumption of alcohol and to make the exclusion contained in
subsection 30(1) of the Act inapplicable to the respondent.
[8]
There was no medical
evidence relating to the respondent’s alcoholism or to whether the
circumstances in which Mr. Bigler started to drink following his mother’s death
effectively made his consumption of alcohol at that time involuntary.
[9]
Although sympathetic to the respondent’s
plight, I am of the view that the Umpire committed a reviewable error when he
dismissed the Commission’s appeal, and
upheld the Board’s decision.
I agree with the applicant that in the case at bar, there was no evidence to
support the Board’s conclusion that the claimant’s action were not wilful.
[10]
Consequently, I would allow the
application for judicial review without costs, set aside the Umpire’s decision
and refer the matter back to the Chief Umpire or an Umpire designated by him
for redetermination in accordance with these reasons.
"Johanne
Trudel"
“I agree
John
M. Evans J.A.”
“I agree
C.
Michael Ryer J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-62-08
STYLE OF CAUSE: The
Attorney General of Canada v.
Ronald Bigler
PLACE OF HEARING: Winnipeg,
Manitoba
DATE OF HEARING: March 17, 2009
REASONS FOR JUDGMENT BY: TRUDEL J.A.
CONCURRED IN BY: EVANS J.A.
RYER J.A.
DATED: March 18, 2009
APPEARANCES:
|
Kim Palichuk
|
FOR THE APPLICANT
|
|
Ronald
Bigler
|
SELF-REPRESENTED RESPONDENT
|
SOLICITORS
OF RECORD:
|
Department of Justice
Edmonton Office
Prairie Region
|
FOR THE APPLICANT
|
|
|
FOR THE RESPONDENT
|
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