Date: 20060525
Docket: A-315-05
Citation: 2006 FCA 199
CORAM: RICHARD C.J.
NADON J.A.
PELLETIER J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
BRENT PEARSON
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1] After more than 18 years of employment with Craig Manufacturing Ltd., the respondent was dismissed on March 10, 2004. As a result, the respondent applied for employment benefits on March 30, 2004, and on June 28, 2004, he was advised by the Employment Insurance Commission (the Commission) that he was disqualified from receiving benefits due to his misconduct.
[2] The respondent appealed the Commission's decision to the Board of Referees (the Board) which, on November 25, 2004, dismissed his appeal, concluding that he had lost his employment by reason of his misconduct.
[3] The respondent then challenged the Board's decision before the Umpire who, on May 16, 2005 (CUB 63538), overturned the Board's decision, finding that since the respondent had adduced sufficient medical evidence to demonstrate that he was suffering from an alcohol addiction at the time of his dismissal, he had not lost his employment because of his misconduct.
[4] This is the decision which the Attorney General, by his application for judicial review, seeks to set aside. For the reasons that follow, I would allow the application.
[5] It is not disputed that at all times material herein, the appellant had a serious problem with alcohol. However, that is not the issue before us, nor was it the issue before the Umpire and the Board. Rather, the issue is whether the respondent was dismissed from his employment by reason of his misconduct. If so, the Commission's decision must stand.
[6] Section 30(1) of the Employment Insurance Act, 1996, c. 23, on which the Commission relies for its decision, reads as follows:
| 30. (1) A claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause, unless
(a) the claimant has, since losing or leaving the employment, been employed in insurable employment for the number of hours required by section 7 or 7.1 to qualify to receive benefits; or
(b) the claimant is disentitled under sections 31 to 33 in relation to the employment.
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30. (1) Le prestataire est exclu du bénéfice des prestations s'il perd un emploi en raison de son inconduite ou s'il quitte volontairement un emploi sans justification, à moins, selon le cas :
a) que, depuis qu'il a perdu ou quitté cet emploi, il ait exercé un emploi assurable pendant le nombre d'heures requis, au titre de l'article 7 ou 7.1, pour recevoir des prestations de chômage;
b) qu'il ne soit inadmissible, à l'égard de cet emploi, pour l'une des raisons prévues aux articles 31 à 33.
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[7] The relevant facts are not in dispute. Prior to his dismissal on March 10, 2004, the respondent was given a number of warnings by his employer to the effect that his repeated absences from work, his failure to get to work on time and his overall attitude were becoming a problem and that this situation had to be corrected. Further, in November 2003, his employer specifically met with him in order to help him find a solution to his alcohol problem. At the meeting, the respondent made it clear to his employer that he was not receptive to any offers of help.
[8] When the respondent failed to follow through on a major contract, the employer decided that enough was enough and that he would dismiss him on Monday, March 8, 2004. As the respondent failed to show up on March 8 and on March 9, the employer dismissed him, without further notice, on March 10, 2004.
[9] It was on the basis of these facts that the Board dismissed the respondent's appeal from the Commission's decision in the following terms:
The Claimant has not proven that his conduct was anything other than reckless to a point so as to be deliberate within the meaning of the Act. The Claimant knew as early as April 2003 that his absences were intolerable yet he refused to address the problem of his addiction even after his employer specifically met with in November 2003 to address the problem. The addiction to alcohol in this case does not exempt a Claimant from his obligations with regards to his employment nor does it excuse his actions in violating the contract of employment.
[10] As I indicated earlier, the Umpire took a different view. After stating, correctly in my view, that generally, "... absenteeism or other conduct of an employee resulting from the voluntary consumption of alcohol is misconduct within the meaning of the Employment Insurance Act", the Umpire then opined, based upon this Court's decision in Canada (Attorney General) v. Turgeon, [1999] F.C.J. No. 1861 (QL), that the respondent's alcohol problem allowed him to argue justification for his misconduct, which justification the Umpire found in the opinion letter of Dr. Ghanem, dated February 22, 2005, where she states, in part, that the respondent's "... poor job performance and absenteeism is directly linked to his alcoholism". As a result, the Umpire concluded that the respondent had not lost his employment by reason of his misconduct.
[11] The Umpire's decision cannot stand. First, I see no basis on which the Umpire could interfere with the Board's decision. On the evidence before it, the conclusion reached by the Board is, in my view, unimpeachable. Although the respondent's problems in the workplace were related to his alcoholism, it is clear that he was not dismissed on that ground. It was his overall conduct, including his absences and late arrivals, which led to his dismissal. I again point out that in addition to giving him ample warning that his conduct was unacceptable, the employer made attempts to resolve his problems, which offers he categorically rejected. On these facts, I cannot see how the Umpire could find fault with the Board's decision.
[12] I should add that Dr. Ghanem's opinion cannot support the Umpire. Although Dr. Ghanem stated that the respondent's problems at work were linked to his alcoholism, a point which no one disputes, that is not an answer to the question of whether the respondent lost his job by reason of his misconduct.
[13] Secondly, it is my view that the Umpire did not really address the issue that was before him, i.e. whether the respondent lost his job at Craig Manufacturing because of his misconduct. The Umpire's reasoning, as I understand it, is that because the respondent's absences and problems at work stem from his alcohol addiction, his failure to perform his duties in a manner acceptable to his employer cannot, as a result, be characterized as misconduct. In so concluding, the Umpire relied on Dr. Ghanem's opinion which, as I have already stated, is not truly helpful. I am satisfied that had the Umpire dealt with the question before him, he would have given an affirmative answer and would have upheld the Board.
[14] In Canada(Attorney General) v . Brissette, [1993] F.C.J. No. 1371 (QL), this Court explained the term "misconduct" as follows::
[10] Moreover, we have no hesitation in concluding that what he did, which was to commit a summary conviction or indictable offence and resulted in a conviction under the Criminal Code, is misconduct within the meaning of subsection 28(1) of the Act. The misconduct referred to in that section may manifest itself in a violation of the law, of a regulation or of an ethical rule, and may mean that an essential condition of the employment ceases to be met, resulting in dismissal. Such a condition may be express or implied and may relate to a concrete or more abstract requirement. [Emphasis added]
[15] In Canada(Attorney General) v. Secours, [1995] F.C.J. No. 210 (QL), Létourneau J.A., writing for the Court, explained that wrongful intent was not a necessary element of misconduct. He indicated that to the extent that the act or omission, relied upon by the employer in dismissing an employee, is willful, i.e. a conscious, deliberate or intentional act or omission, misconduct has been shown. This is how Justice Létourneau, at paragraph 2 of his reason, puts it:
[2] The learned Umpire, R.J. Marin, made two errors. First he concluded that there was no wrongful intent on the part of the respondent and therefore no intent to defraud. It is not necessary for a behaviour to amount to misconduct under the Act that there be a wrongful intent. It is sufficient that the reprehensible act or omission complained of be made "wilfully", i.e. consciously, deliberately or intentionally. In the present instance, the respondent knew that she could not manually alter her time card as she had been warned previously. Yet she consciously and deliberately did it. [Emphasis added]
[16] In Canada(Attorney General) v. Wasylka, 2004 FCA 219, June 1, 2004, Létourneau J.A., again writing for the Court, held that it was an error of law for an Umpire to conclude that a claimant's absence from work was not willful because of a drug addiction. At paragraphs 4 and 5 of his reasons, Létourneau J.A. wrote in the following terms:
[4] ... The consumption of drugs by the respondent, even though attractive or irresistible, was voluntary in the sense that his acts were conscious and that he was aware of the effects of that consumption and the consequences which could or would result. He did declare that he could "not focus on anything that matters" when he was taking the drug: see the Applicant's Record, page 51. The respondent's actions that day, i.e. the use of illegal drugs, were sufficiently serious and of such scope that he could normally foresee that it would be likely to result in his dismissal: see Canada (Attorney General) v. Langlois, [1996] F.C.J. No. 241 (QL).
[5] It would be fundamentally altering the nature and principles of the employment insurance scheme and Act if employees, who lose their employment as a result of abusing impairing substances such as alcohol or drugs, could be entitled to receive regular unemployment benefits. Section 21 of the Employment Insurance Act and 40 of the Employment Insurance Regulations already provide for sickness benefits and the respondent has been the recipient of such benefits.
[17] In the present matter, the respondent was not dismissed because of his alcohol problem, but rather because he was repeatedly absent from work and because his conduct and performance were not what his employer expected of him.
[18] The Umpire, in focusing on justification for the respondent's misconduct, relied, as I have indicated, on this Court's decision in Turgeon, supra. Recently, writing for this Court in Canada(Attorney General) v. Richard, 2005 FCA 339, October 19, 2005, a case with many similarities to the present one, Justice Létourneau indicated that in Turgeon, this Court had not decided that alcoholism could serve to justify misconduct under section 30 of the Act. In Richard, as here, the respondent lost his job by reason of repeated absences from his workplace, absences which were related to his alcohol problem. Although the respondent had been given numerous warnings by his employer, he refused to take any corrective action with respect to his problem. This led Justice Létourneau to make the following comments at paragraphs 5 and 6 of his reasons:
[5] Under the circumstances, the respondent could not have been unaware that the breach of his obligations under his employment contract was of such scope that it was normally foreseeable that it would be likely to result in his dismissal: see Attorney General of Canada v. Langlois and Attorney General of Canada v. Edward, [1996] S.C.J. No. 241, at paragraph 4.
[6] In this case, the respondent's loss of employment was the result of his misconduct and the community need not bear the consequences of that by paying him employment insurance benefits, as he is requesting.
[19] In the present matter, the Board found as a fact that since April 2003, the respondent knew that his repeated absences from work were unacceptable to his employer and notwithstanding his employer's offers to help him deal with his problem, he refused to take any steps in that direction. On those facts, paraphrasing Justice Létourneau in Richard, supra, the respondent must have been aware that his conduct was such that it could eventually lead to his dismissal.
[20] I am therefore of the view that the Umpire erred in concluding that the respondent had not lost his employment by reason of misconduct. I would therefore allow the Attorney General's judicial review application, set aside the Umpire's decision and return the matter to the Chief Umpire, or an Umpire designated by him, for redetermination on the basis that the respondent lost his employment because of his misconduct.
"M. Nadon"
"I agree.
J. Richard C.J."
"I agree.
J.D. Denis Pelletier J.A."
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