Date: 20170131

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

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):

[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:

[…]

[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.

JUDGMENT

THE COURT’S DECISION is that

1.      The application for judicial review is allowed.

2.      No costs.

“Yvan Roy”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:		T-1184-16
STYLE OF CAUSE:		ATTORNEY GENERAL OF CANADA v YOLANDE BERNIER
PLACE OF HEARING:	Montréal, QuEbec
DATE OF HEARING:	january 16, 2017
JUDGMENT AND DECISION:	ROY J.
DATED:	january 31, 2017

APPEARANCES:

Carole Vary	FOR THE APPLICANT
Yolande Bernier	FOR THE RESPONDENT (ON HER OWN BEHALF)

SOLICITORS OF RECORD:

William F. Pentney Deputy Attorney General of Canada Montréal, Quebec

FOR THE APPLICANT