Docket: T-1184-16
Citation:
2017 FC 120
[ENGLISH TRANSLATION]
Ottawa, Ontario, January 31, 2017
PRESENT: The Honourable Mr. Justice Roy
BETWEEN:
|
ATTORNEY
GENERAL OF CANADA
|
Applicant
|
and
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YOLANDE BERNIER
|
Respondent
|
JUDGMENT AND REASONS
[1]
The Attorney General of Canada [the applicant]
is seeking a judicial review of a decision by the Social Security Tribunal’s Appeal
Division [SST-AD]. This decision relates to the SST-AD’s refusal to allow the
appeal of a decision rendered by the Social Security Tribunal’s General
Division [SST-GD]. The application for judicial review is made pursuant to
sections 18 and 18.1 of the Federal Courts Act (R.S.C. (1985), c. F-7):
I.
Statutory framework
[2]
First, it is important to place the recourse
into its proper context. Had the SST-AD made an appeal decision on Ms.
Bernier’s application for employment insurance benefits, the appropriate
recourse would have been before the Federal Court of Appeal, which has
jurisdiction to hear applications for judicial review involving the SST-AD,
except for decisions on leave to appeal. This is exactly what is at issue here.
The Attorney General is seeking judicial review of the SST-AD’s refusal to
allow the SST-DG’s decision to be appealed.
[3]
Section 58 of the Department of Employment
and Social Development Act (SC 2005, c. 34) stipulates that leave to
appeal an SST-GD decision is refused if the Appeal Division is satisfied that “the appeal has no reasonable chance of success” (subsection
58(2)). The same Act also states the only grounds of appeal. I reproduce
subsections 58(1) and (2):
Grounds of appeal
|
Moyens d’appel
|
58 (1) The only grounds of appeal are
that
|
58 (1)
Les seuls moyens d’appel sont les suivants :
|
(a) the General Division failed to
observe a principle of natural justice or otherwise acted beyond or refused
to exercise its jurisdiction;
|
a) la
division générale n’a pas observé un principe de justice naturelle ou a
autrement excédé ou refusé d’exercer sa compétence;
|
(b) the General Division erred in law
in making its decision, whether or not the error appears on the face of the
record; or
|
b) elle
a rendu une décision entachée d’une erreur de droit, que l’erreur ressorte ou
non à la lecture du dossier;
|
(c) the General Division based its
decision on an erroneous finding of fact that it made in a perverse or
capricious manner or without regard for the material before it.
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c) elle a fondé sa décision sur une
conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans
tenir compte des éléments portés à sa connaissance.
|
Criteria
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Critère
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(2) Leave to appeal is refused if the
Appeal Division is satisfied that the appeal has no reasonable chance of
success.
|
(2) La division d’appel rejette la demande de
permission d’en appeler si elle est convaincue que l’appel n’a aucune chance
raisonnable de succès.
|
[4]
The SST-GD found that Ms. Bernier did not lose
her employment for misconduct within the meaning of section 30 of the Employment
Insurance Act (SC 1996 c. 23). In the applicant’s opinion, however, the
respondent apparently did lose her employment as a result of misconduct, which
prevents her, under the Employment Insurance Act, from receiving employment
insurance benefits. Subsection 30(1) of the Act reads as follows:
Disqualification — misconduct or leaving without just cause
|
Exclusion : inconduite ou départ sans justification
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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
|
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) 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
|
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) the claimant is disentitled under
sections 31 to 33 in relation to the employment.
|
b)
qu’il ne soit inadmissible, à l’égard de cet emploi, pour l’une des raisons
prévues aux articles 31 à 33.
|
[…]
[5]
The SST-AD, at the leave to appeal stage, should
not weigh the evidence and thus make a decision on the merits. It should
instead be satisfied that the appeal has no reasonable chance of success, a bar
that is significantly lower than establishing that the appeal should be allowed.
[6]
Moreover, the role of this Court is also
limited. On judicial reviews, the Federal Court only reviews the legality of
the decision rendered by the Appeal Division on leave to appeal. In other
words, this Court does not consider the case on the merits generally. Depending
on the applicable standard of review, the role of the Federal Court is to
determine whether the decision under review is correct, particularly with
respect to procedural fairness, or reasonable, depending on the issue to be
decided.
II.
Standard of review
[7]
In the case at hand, the applicant agrees that
the standard of review is reasonableness and not correctness, which is more
favourable to applicants. Most recently, my colleague Justice Richard Mosley
documented the case law from this Court to find that decisions on leave to
appeal are subject to judicial review on the basis of reasonableness (Paradis
v Attorney General of Canada, 2016 FC 1282 [Paradis], referring to Canada
(Attorney General) v Hines, 2016 FC 112, at para 28; Griffin v Attorney
General of Canada, 2016 FC 874, para 13; Canada (Attorney General) v
Hoffman, 2015 FC 1348, at paras 26 and 27 and Bergeron v Canada (Attorney
General), 2016 FC 220 at para 6).
[8]
Therefore, this Court must show deference to the
SST-AD’s decision to deny leave to appeal. As the Supreme Court of Canada noted
in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir],
“[c]ertain questions that come before administrative
tribunals do not lend themselves to one specific, particular result. Instead,
they may give rise to a number of possible, reasonable conclusions. Tribunals
have a margin of appreciation within the range of acceptable and rational
solutions.” Thus, even if this Court favoured one solution over another,
it cannot favour its solution over that of an administrative tribunal, unless
it has been established that the administrative tribunal’s is unreasonable.
This reasonableness has a procedural aspect since the Court states in the same
paragraph 47 of Dunsmuir that “reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process.” With respect to the
quality of the decision itself, the Court teaches that if the decision falls
within a “range of possible, acceptable outcomes which
are defensible in respect of the facts and law,” then the decision is
reasonable.
[9]
In this case, the Attorney General must
establish that it was unreasonable for the SST-AD to find that her appeal’s
chance of success was such that there was no reasonable expectation of success.
[10]
There must therefore be a presentation of the
detailed facts that led to Ms. Bernier’s loss of employment. Once these facts
have been established, the reasons that the SST-GD found that the loss of employment
was not a result of misconduct under section 30 of the Employment Insurance
Act will have to be considered. It is from this decision that leave to
appeal was not granted because the SST-AD held that the appeal allegedly did
not have a reasonable chance of success.
III.
The facts
[11]
Ms. Bernier was a program officer with
Correctional Services Canada. She began her employment there in 2008. She had
to be suspended without pay on March 4, 2014, and was subsequently dismissed on
July 8, 2014. It is common ground that Ms. Bernier acted inappropriately by
having a personal relationship with an inmate while he was on parole, nor is it
disputed that the employer’s code of conduct specifically states that employees
shall not have a relationship with an inmate outside their hours of work. Although
the code reportedly states that employees must inform their employer of any
such relationship, Ms. Bernier never did so.
[12]
According to the SST-GD’s decision, the
respondent received at her home on one occasion an individual who was on parole
and for whom she had been a caseworker. According to the respondent, she
provided career coaching to this parolee two afternoons a week. She argues that
the meeting at her residence that led to her dismissal was limited to a coffee
and a discussion of approximately two hours and that, during this meeting, they
allegedly visited two antique stores because the parolee was looking for an
item. This visit and the [translation] “shopping session,” as it was called, were apparently
a one-time event.
[13]
Upon her return from a 6-week vacation after the
meeting in question, the respondent found out that this individual’s situation had
become more problematic. It would appear that this person made threatening
remarks that were the subject of [translation]
“restrictive measures against his spouse”
(respondent’s memorandum of fact and law, para 19). This led to his
reincarceration and, as claimed by the respondent, this individual allegedly
decided to take revenge by referring to his visit at Ms. Bernier’s residence
and exaggerating what occurred, claiming that there was a special relationship.
The respondent denied the alleged nature of this relationship. Furthermore, the
respondent denies using marijuana with this individual during this visit.
[14]
An investigation into Ms. Bernier’s actions was
ordered. The document on record indicates March 18, 2014, as the date on which
the investigation was ordered, but Ms. Bernier had already been suspended since
March 4. The investigation report, dated April 30, 2014, tends to be
significantly more critical of Ms. Bernier than she is willing to accept. Thus,
Ms. Bernier’s comments on the investigation report are accompanied by a series
of concessions on her actions, which are also reproduced in the letter of
disciplinary dismissal that was sent to her on July 8, 2014. Both the
investigation report and the respondent’s comments note that sometimes her
employer did not trust her. Specifically, she indicated the following on page 7
of 9 in her comments on the investigation report: [translation] “Will my employer be
able to trust me again?” The report itself concluded with the following
sentence: [translation] “The biggest question that remains unresolved today is
whether the employer can still trust her.” The letter of disciplinary
dismissal, which was issued on July 8, 2014, considers that Ms. Bernier
allegedly [translation] “had unprofessional dealings with the offender over a period
of four months” and provides more specific details of the accepted facts
against her:
• Followed the offender on Facebook
• Invited the offender to your residence.
After this meeting, you asked the offender to contact the Ogilvy CCC halfway
house and told him to use a payphone so that the call would not be traced to
your residence
• Went shopping at an antique store with the
offender
• Shared information from your private life
with the offender
• Recognized wearing inappropriate clothing
during sessions with the offender
• Admitted using marijuana
Other allegations that were investigated were
clearly dismissed.
[15]
The respondent filed a grievance against her
dismissal. This grievance was settled through a memorandum of understanding
between the respondent and her employer and was considered by the SST-GD. The
considerations put forward in paragraph 53 of the SST-GD’s decision:
[translation]
53. When I consider Exhibit GD-17,
which is a copy of the memorandum of understanding between the applicant and
her employer, I find that there are mitigating factors to explain the
applicant’s professional error, including: [sic]
a) Absence of bad faith on the complainant’s
part;
No personal interest in the fault committed;
Particular family situation;
Years of experience;
Performance evaluation;
The complainant promptly notified the
authorities of the offender’s high risk of violence while he was taking the
program.
[16]
Ms. Bernier was suspended without pay on
March 4, 2014, and her employment insurance benefits claim was denied by
the Employment Insurance Commission [the Commission] on May 14, 2014. The
application for review was also unsuccessful, with the Commission upholding its
initial decision on November 6, 2014. Ms. Bernier then appealed to the Social
Security Tribunal on December 5, 2014. The SST-GD heard the matter on
October 14, 2015, and made its decision on February 6, 2016. In that
decision, the SST-GD agreed with Ms. Bernier. Finally, the SST-AD’s decision
refusing to allow the appeal was made on July 11, 2016.
IV.
Decisions by the Social Security Tribunal
[17]
The decision under review is that which denied
leave to appeal because, according to the SST-AD, an appeal would have no
reasonable chance of success. This Court must show deference in this respect.
[18]
What makes the matter somewhat different from
judicial reviews of decisions made on the merits is that the bar is much lower
than for reviews based on the merits. It is
not necessary to satisfy the SST-AD that the alleged misconduct meets the
jurisprudential definition of “misconduct”
within the meaning of section 30 of the Employment Insurance Act, but
rather to establish whether there is “some arguable
ground upon which the proposed appeal might succeed” (Osaj v Canada (Attorney
General), 2016 FC 115 at para 12; Paradis at para 34). The
SST-AD should not decide the case at this stage; rather, it must determine if it
is satisfied that there are no such arguable grounds. The SST-AD’s decision, to
use the wording of the Supreme Court in Dunsmuir, was that there were no
arguable grounds. If there were any, the decision would be unreasonable.
Furthermore, the SST-AD should make a decision that is transparent and
intelligible and provides a justification to satisfy the reasonableness of the
decision. Insofar as the decision has the attributes of reasonableness, there
is no need for the Court to intervene.
[19]
If I understand the applicant’s position
correctly, which is not always easy due to her complex argument, it was not up
to the SST-GD to decide, even implicitly, on the severity of the penalty for
misconduct. It is argued that this is what was done. The only question that had
to be answered was whether Ms. Bernier lost her employment due to her
misconduct. Since the issue is leave to appeal that was denied, merely
examining the SST-AD’s decision is insufficient. The context of this decision
is established based on the decision for which an appeal was denied.
A.
The SST-GD’s decision
[20]
The initial decision, that of the General
Division, was made on February 8, 2016. The basic facts that led to the
disciplinary dismissal on July 8, 2014, are undisputed. However, the
SST-GD received in evidence circumstances that could only have been submitted
as mitigating. Furthermore, some of the inmate’s allegations (Ms. Bernier’s use
of drugs with the parolee, sexual relations) are denied by the respondent (who
does not otherwise deny using marijuana).
[21]
The Commission claimed misconduct within the
meaning of section 30, while the respondent spoke of a one-time event, diminished
by her personal situation at the time, which would not constitute misconduct
within the meaning of section 30.
[22]
For the Commission, according to the SST-GD,
based on the investigation conducted by the employer, Ms. Bernier [translation] “did
indeed commit the acts of which her employer accused her, that these actions,
considered to be deliberate, were committed despite the foreseeable consequence
of losing her employment, and they constitute misconduct within the meaning of
the Act” (para 37d) of the SST-GD’s decision).
[23]
The problem, one which is present throughout
this case, is that the SST-GD’s decision is unclear. Twice in the 22 paragraphs
that comprise the analysis, the SST-GD stresses that all reprehensible conduct
does not necessarily constitute misconduct. For the SST-GD, [translation] “misconduct
is a breach by a party such that the originator would normally foresee that it
would likely result in dismissal” (para 39). Thus, the SST-GD must be
satisfied that the misconduct is the reason, and not the excuse, for the
dismissal. But what exacerbates the problem is that the SST-GD provides a
serious of propositions in the form of a template. They are propositions drawn
from the case law, but it is not clear how these propositions relate to the
facts of the case.
[24]
Having established certain jurisprudential
principles specific to the notion of misconduct, the SST-GD appears to find it sufficient
to simply be informed. It is not said how these principles apply and how they
pertain to the case at hand. Rather, the SST-GD continues its analysis to
accept the respondent’s mitigated version. It must be concluded that the SST-GD
accepts Ms. Bernier’s version, which is less damning than the employer’s
investigation report.
[25]
In my view, the core of the decision appears in
paragraphs 56, 57, and 58. I reproduce them below:
[TRANSLATION]
[56] Should we find that there was
misconduct? This is not my opinion. I accept that the applicant was going
through a difficult period in her life and that her judgment could have been
altered. Had there been repeated meetings outside of work or evidence of other
professional misconduct, The tribunal could have found that the applicant had
voluntarily decided to ignore the consequences of her actions on her
employment.
[57] The evidence, however, suggests
otherwise. I therefore find that there was no such willingness in this case. I
consider that there was an error of judgment that in the employer’s view
warranted dismissal.
[58] Case law tells us that reprehensible
conduct does not necessarily amount to misconduct. The applicant unquestionably
erred, but I find that she did not commit all the misconduct of which she was
accused at first glance. I accept the applicant’s comments that she was not
aware that the breach was so severe that she could normally foresee being
dismissed.
The lack of connection between the
jurisprudential principles raised, without more, and the decision does not
facilitate an understanding. The concept of misconduct adopted by the SST‑GD
is not developed. The SST-GD appears to be seeking willingness on the
respondent’s part to disregard the consequences of her actions for there to be misconduct.
It would therefore be the intent of the claimant that prevails. Did she
voluntarily decide to ignore the consequences?
[26]
But the SST-GD does not appear to explain why
the dismissal for professional misconduct does not constitute misconduct within
the meaning of section 30. Rather, there is a kind of amalgam between the
unwillingness to ignore the consequences of the behaviour and the presence of
an error of judgment (which warrants dismissal in the employer’s view) that
leads, without further explanation, to a lack of misconduct.
B.
The SST-AD’s decision
[27]
The only question before the SST-AD was
therefore whether an appeal of this decision had no reasonable chance of
success. In its decision from July 11, 2016, it found that there was no chance
of success. As required by subsection 58(4) of the Department of Employment
and Social Development Act, a reasoned decision has been made, and this is
the decision that is subject to the judicial review.
[28]
The SST-AD’s decision is also not readily
accessible. Recognizing that the appeal deals with alleged errors of law and
erroneous finding of fact, made in a perverse or capricious manner, the SST-AD
dealt with it without really providing a comprehensive articulation of its
thinking.
[29]
First, with respect to the mistake of fact
issue, the SST-AD describes it as [translation]
“the finding that the respondent’s alleged act
did not constitute misconduct” (para 16).
[30]
There follows a series of paragraphs that seek
to dismiss this claim. We are told that the respondent recognized that she made
an error in judgment and that the employer [translation]
“agreed not to make any submissions in the
Tribunal record” (para 17). However, that is not correct. At best, the
memorandum acknowledges that [translation]
“if submissions are made, they would comply with
this memorandum.” All that the employer attests is that it [translation] “does
not undertake to make submissions in the employment insurance record,”
which is not a commitment not to make submissions. In
this context, the employer declares that it will not intervene in favour of the
claimant, but that if submissions are made, they will not depart from the
content of the memorandum.
[31]
The SST has evidence that the disciplinary
dismissal in July 2014 is now characterized as a professional error that
results in the parties agreeing that it is impossible for the employer to
reinstate Ms. Bernier. The mitigating factors are duly noted.
[32]
It seems to me that the irresistible inference
to be drawn from the memorandum is that the employer did not want to interfere
with Ms. Bernier’s chances of receiving employment insurance benefits. However,
the memorandum in fact states that the professional error is the reason that
Ms. Bernier could not be reinstated. Despite the circumlocution, the issue is whether
she lost her employment due to her misconduct.
[33]
The SST-AD states that its role is not to assess
and reassess the evidence. It is correct that it must instead determine the
reasonable chances of success of an appeal. One might have thought that it would
follow from this finding that an examination of the merits is not appropriate,
that the bar is lower because the test for allowing an appeal is the belief
that the appeal has no reasonable chance of success.
[34]
The SST-AD accepts that a mistake of fact is
alleged. For this error to be decisive within the meaning of paragraph 58(1)(c),
the GD’s decision would have to have been based on a finding of fact made in a
perverse or capricious manner. The erroneous finding of fact must therefore
have a quality of specific evidence; mere disagreement on the finding of fact
will not suffice. The decision must be based on the mistake of fact, and the
finding of fact is made in a perverse or capricious manner. But its explanation
for finding that there was no reasonable chance of success in this regard is
unintelligible. The error of fact to which the SST-AD is attempting to respond
would be [translation] “[the] finding of fact stated, according to the applicant, is
the finding that the respondent’s alleged act did not constitute misconduct.”
This was the proposition suggested by the Commission.
[35]
If the SST-AD sought to answer this assertion as
a mistake of fact, it was difficult to succeed because it is not an error of
fact. This obviously makes the decision impossible to understand. The issue is
not a finding of fact; it is at least a question of mixed fact and law—namely,
do the facts as found constitute misconduct? The notion of misconduct, which is
not defined in the Act, found its legal content in the case law that has sought
over the years to circumscribe it. The finding that there allegedly was no
misconduct is not an erroneous finding of fact; it is a conclusion of law drawn
from the facts. The content of the notion of misconduct would be a question of
law. Applying facts to the law is a mixed question.
[36]
In the case at hand, an erroneous finding of
fact could have been, for example, that Ms. Bernier did not receive the parolee
at her residence. Such a finding of fact could be viewed as perverse or
capricious since even Ms. Bernier conceded that such a meeting occurred. Conversely,
it would be difficult for the Commission to claim a perverse or capricious
mistake of fact if it alleged that its more damning evidence should have
accepted, even though it did not even attempt to cross-examine the respondent,
whose testimony was ultimately favoured. If there was a mistake of fact, it
could hardly be perverse or capricious when the testimony was not challenged. It
is not impossible that such an argument is made, for example in cases where the
testimony is so fantastic or implausible that it could not possibly and
rationally be given any credibility. Under such circumstances, favouring such
testimony could be capricious or arbitrary. But this was not what was pleaded
in the case at hand; rather, it is a choice that may displease, but nothing
more.
[37]
The same argument was made in the judicial
review, and there is the same confusion. In fact, the Attorney General appears
to me to be arguing that there was both a mistake of fact and an error of law. She
describes the mistake of fact as [translation]
“the application of the facts to the notion of
misconduct which causes the SST-GD to base its decision on an erroneous finding
of fact, made in a perverse or capricious manner without regard for the
elements brought to its attention” (para 36, memorandum of fact and
law). Paragraph 53, however, states that [translation]
“by misapplying the facts to the legal concept
of misconduct, the SST-GD made a decision vitiated by an error of law.”
[38]
I am afraid that a mistake of fact and an error
of mixed fact and law have also been confused. It has not been properly argued,
much less demonstrated, that there was a mistake of fact by the SST-GD within
the meaning of paragraph 58(1)(c) of the Department of Employment and
Social Development. What is alleged is that the SST-GD should have found
misconduct based on the facts. This is not an issue of fact. The Commission and
the SST-AD were chasing a ghost. If the right question is not asked, it is
hardly surprising that the answer is not optimal. It was not raised that the
decision was based on a finding of fact made in a perverse or capricious
manner.
[39]
The real issue, rather, is the alleged error of
law. Remarkably little is articulated in this respect in the SST-AD’s decision.
It comes down to two paragraphs:
[TRANSLATION]
[28] The GD found that there was no
intention to “disregard the consequences of her actions on her employment,”
that the applicant “realized the breach was severe enough that she could reasonably
foresee that she would be dismissed” and that “she did not act deliberately or
voluntarily or demonstrate such carelessness or negligence that she herself
caused her dismissal.”
[29] The GD applied the principles set out
in A.G of Canada v. Tucker, A-381-85 and Locke v. Canada (A.G.),
2003 FCA 262, among other decisions, to the applicant’s situation. The decision
was not vitiated by an error of law.
V.
Analysis
[40]
In my opinion, this matter should be returned to
a different panel for a reconsideration on the reasonable chance of success of
an appeal based on an error of law.
[41]
What is clear from paragraph 28 of the SST-AD’s
decision is that the misconduct is defined by a subjective test that is based
solely on the claimant’s state of mind. If she improperly assessed the
consequences of her actions, this would not amount to misconduct.
[42]
At paragraph 29, the only claim, without
explanation or articulation, is that the SST-GD allegedly followed the case
law.
[43]
In the case at hand, the applicant raises three
reasons for which this would constitute and error of law:
a)
It is not a subjective test as to the
foreseeability of the loss of employment;
b)
The claimant’s justification is taken into
account. This is a mistake. What matters is the loss of employment as a result
of the misconduct;
c)
The legitimacy of the dismissal is challenged by
ruling on the severity of the penalty. It is inappropriate to do so.
[44]
Relying on considerable case law from the
Federal Court of Appeal, the applicant argues that these errors of law must be
corrected and that, therefore, an appeal before the SST-AD would have an
excellent chance of success: the SST-AD could not be satisfied that the appeal
had no reasonable chance of success.
[45]
It is not within the jurisdiction of the Federal
Court to rule on the definition of misconduct within the meaning of section 30
of the Employment Insurance Act. I therefore have no intention of attempting
to establish whether there is misconduct in the case at hand. The Court’s role
is limited to determining the reasonability of the SST-AD’s finding that the
case had no reasonable chance of success.
[46]
To do so, the Court consulted all the case law
submitted by the parties. In my opinion, it is far from clear that only Locke
and Tucker dispose of the case as the SST-AD indicates in paragraph
29. At the very least, the SST-AD should have explained how these decisions
dispose of the case at hand. The case law subsequent to these decisions may
well provide a different perspective and should have been considered. The three
arguments put forward, as set out in these reasons, seem to me to warrant
consideration to determine whether they are so devoid of value that they do not
have a reasonable chance of success when the subsequent case law is considered
and to which no reference is made.
[47]
I recognize from the outset that even on a
question of law, the reviewing court must show deference to the tribunal that
is responsible for applying these provisions (Alberta (Information and
Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011]
3 SCR 654 at para 39). In my opinion, the SST-AD’s decision is unreasonable
because it does not have the prerogative. The Supreme Court, in Dunsmuir,
stated that “[t]ribunals have a margin of appreciation
within the range of acceptable and rational solutions” (para 47). Here,
justification is completely lacking. If “reasonableness
is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process,” the SST-AD’s
decision is obviously very brief, to the point of not knowing whether an appeal
would have a reasonable chance of success. It is not so much the insufficiency
of the reasons as their absence that is problematic. Deference to the decisions
of administrative tribunals requires respectful attention to the reasons
offered or which may be offered (Newfoundland and Labrador Nurses’ Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para 12) [Newfoundland].
But still, there must be reasons. In Newfoundland, the Court noted the
following at para 16:
In other words, if the reasons allow the
reviewing court to understand why the tribunal made its decision and permit it
to determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are met.
[48]
Having been exposed to the case law of the
Federal Court of Appeal, the basis of the SST-AD’s decision is quite uncertain,
and the reasons do not make it possible to know, much less understand, the
basis of the decision and whether the refusal to allow an appeal because it has
no reasonable chance of success is a possible acceptable outcome in view of the
alleged errors of law.
[49]
As noted above, while the applicant claimed in
paragraph 36 of her memorandum that applying the facts to the concept of
misconduct involved a mistake of fact, which was a source of confusion, she
also claims in paragraph 53 that [translation]
“by misapplying the facts to the legal concept
of misconduct, the SST-GD rendered a decision vitiated by an error of law.”
This is, in my opinion, the best question that has not been answered, other
than to invoke Tucker and Locke, which allegedly deals with the
question. We do not know how these decisions would deal with the question.
[50]
The SST-AD should have offered reasons allowing
this Court to understand why an appeal on a question of law did not have a
reasonable chance of success, particularly in light of the most recent Federal
Court of Appeal case law. The question of whether the tests applied to
determine if there was misconduct outlined in paragraph 28 of the SST-AD’s
decision (these passages are directly from paragraphs 56, 58 and 59 of the
SST-GD’s decision) suggests that the test is only subjective. It is not clear
from both decisions, that of the GD and that of the AD, how and why it should
be so. A different panel from the SST-AD should consider the issue of leave to
appeal.
[51]
Finally, the applicant presents, for the first
time during the judicial review of the SST‑AD’s decision, an allegation
that, in any event, the claimant would have left her employment without just
cause had she not lost it due to her misconduct, which also excludes her from
receiving benefits under section 30 of the Employment Insurance Act. This
attempt is inappropriate and belies a misunderstanding of the nature of
judicial review.
[52]
In judicial review, the reviewing court seeks to
determine the legality of an administrative tribunal’s decision. This is the
only decision that can be at issue. If the administrative tribunal’s decision
does not relate to a given issue, then it cannot be reviewed in any court:
there is nothing to review. An applicant cannot butt in and make new
allegations in a judicial review of an entirely different decision. Throughout
the proceedings, what has been discussed is the loss of employment due to
misconduct. At the hearing, I asked where I would find in the record the
alternative reason invoked. It does not appear anywhere. A judicial review
hearing is not a trial de novo (Paradis, at para 22), nor does it
deal with the merits because matters on the merit are entrusted by Parliament
to administrative tribunals created for this purpose (Bernard v Canada (Revenue
Agency), 2015 FCA 263; 479 NR 189).
[53]
The new allegation is simply inappropriate. It
demonstrates a poor understanding of judicial review and must be dismissed, nothing
more.
[54]
The applicant wanted the matter to be returned
to the SST-AD so that it could be dealt with as if the decision had been made
that the appeal had a reasonable chance of success and that it was now sufficient
to hear the case on the merits. I do not believe that this is the correct
approach.
[55]
This case was somewhat confusing. It appears
that questions of law have been presented as questions of fact. The questions
of law have therefore been improperly assessed. Furthermore, the reasons
offered for denying leave to appeal are themselves deficient, so it is unclear
whether the appeal has a reasonable chance of success. However, the Parliament
has entrusted the SST-AD with the task of determining whether there can be an
appeal.
[56]
Accordingly, the application for judicial review
is allowed on the sole issue of determining whether there was an error of law
in the SST-AD’s decision on the question of the loss of employment due to
misconduct within the meaning of section 30 of the Employment Insurance Act.
The SST-AD will therefore have to determine, with reasons, if the allegation
of an error of law on the notion of misconduct committed by the SST-GD could
have a reasonable chance of success. Given the confusion surrounding this case,
the parties should be allowed to resubmit their arguments in light of these
reasons.
[57]
There will be no costs awarded.