Canada (Attorney General) v. Caul, 2006 FCA 251

Date: 20060629

Docket: A-441-05

Citation: 2006 FCA 251

CORAM:        LÉTOURNEAU J.A.

                        SEXTON J.A.

                        MALONE J.A.

BETWEEN:

THE ATTORNEY GENERAL OF CANADA

Applicant

and

LINDA CAUL

Respondent

Heard at St. John's, Newfoundland, on June 29, 2006.

Judgment delivered from the Bench at St. John's, Newfoundland, on June 29, 2006.

REASONS FOR JUDGMENT OF THE COURT BY:                                      LÉTOURNEAU J.A.

Date: 20060629

Docket: A-441-05

Citation: 2006 FCA 251

CORAM:        LÉTOURNEAU J.A.

                        SEXTON J.A.

                        MALONE J.A.

BETWEEN:

THE ATTORNEY GENERAL OF CANADA

Applicant

and

LINDA CAUL

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at St. John's, Newfoundland, on June 29, 2006)

LÉTOURNEAU J.A.

[1]                We are of the view that both the Umpire and the Board of Referees (Board) erred in law when they concluded that theft from the employer by the respondent, who held a position of trust, was not "misconduct" within the terms of sections 29 and 30 of the Employment Insurance Act, S.C. 1996, c. 23 (Act).

[2]                The respondent worked as a cashier and shift supervisor. In need of money, she took $80.00 from her cash. She had been working for her employer for 32 years. She was dismissed from her employment as the employer had, in this respect, a policy of zero tolerance.

[3]                The Board found that the respondent acted on impulse, out of desperation and almost despair, not intentionally or maliciously.

[4]                With respect, the Board's decision ignores the rulings of this Court in Attorney General of Canadav. Brissette, [1994] 1 F.C. 684 and Canada(Attorney General) v. Johnson, 2004 FCA 100. It is sufficient for a misconduct to occur under the Act that the reprehensible act or omission complained of be made "wilfully", i.e. consciously, deliberately or intentionally. There is no doubt here that the act was conscious.

[5]                There is also no doubt that the act was of such a nature that the respondent could not have known or foreseen that her act would be likely to result in her dismissal: Attorney General of Canadav. Langlois, A-94-95, February 21, 1996.

[6]                The Umpire and the Board were of the view that the reaction of the employer was excessive in the circumstances and was tantamount to an "overkill". With respect, their role was not to determine whether a dismissal by the employer was justified or was the appropriate sanction. Their role was to determine whether theft of money while in a position of trust amounts to misconduct under the Act: see Attorney General of Canada v. Secours, A-352-94, February 6, 1995; Attorney General of Canada v. Marion, 2002 FCA 185. Had they focussed on that question as this Court did in Brissette, supra, their answer would have been and could only have been affirmative.

[7]                Finally, both instances concluded that the respondent's act was foolish. They then used foolishness as an excuse for her misconduct.

[8]                I agree with the applicant that this was an error. Neither a theft nor a misconduct ceases to be a theft or a misconduct because their author acted foolishly. While foolishness may render the case sympathetic, it does not alter the legal nature and implications of the act or omission committed.

[9]                For these reasons, this application for judicial review will be allowed without costs as the respondent did not challenge the application and the applicant did not seek them. The decision of the Umpire will be set aside and the matter will be referred back to the Chief Umpire, or a designated Umpire, for a new determination on the basis that the respondent's behaviour amounted to misconduct within the terms of sections 29 and 30 of the Act, thereby excluding her from the benefits of unemployment.

"Gilles Létourneau"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                             A-441-05

STYLE OF CAUSE:                                             THE ATTORNEY GENERAL OF

                                                                              CANADA v. LINDA CAUL

PLACE OF HEARING:                                       St. John's, Newfoundland

DATE OF HEARING:                                         June 29, 2006

REASONS FOR JUDGMENT                          LÉTOURNEAU J.A.

OF THE COURT BY:                                          SEXTON J.A.

                                                                              MALONE J.A.

DELIVERED FROM THE BENCH BY:           LÉTOURNEAU J.A.

APPEARANCES:

SOLICITORS OF RECORD: