(Pronounced at the hearing in Montreal, Quebec,
Tuesday, May 28, 1996)
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
May 28, 1996
Docket:
A-471-95
Umpire's Decision:
CUB 28142
"TRANSLATION"
CORAM:
MARCEAU, J.A.
MacGUIGAN, J.A.
DÉCARY, J.A.
BETWEEN:
DIANE CHOINIÈRE,
applicant,
- and -
CANADA EMPLOYMENT AND
IMMIGRATION COMMISSION,
respondent,
- and -
DEPUTY ATTORNEY GENERAL OF CANADA,
Mis en cause.
REASONS FOR JUDGMENT OF THE COURT
(Pronounced at the hearing in Montreal, Quebec,
Tuesday, May 28, 1996)
MARCEAU J.A.:
We are of the opinion that this decision of the umpire should not be upheld.
The umpire declined to re-examine the conclusion of the majority of the Board of Referees that the applicant had lost her employment "by reason of [her] own misconduct" within the meaning of section 28 of the Unemployment Insurance Act, noting that the Board, as master of the facts, was quite within its rights to adopt the employer’s version in preference to that of the employee. However, it appears from the record that this so-called decisive "version" of the employer was limited to a statement by one of its representatives recorded by an officer of the Commission in a text of a few lines in which it is tersely stated that the employee had been dismissed because she had taken the day off without leave. 1 Was it possible, using solely this "version" of the facts, to conclude that the Commission had satisfied its obligation to prove that the section 28 conditions were fulfilled?
We do not think so, in light of the decisions of this Court, which has gone to great lengths on many recent occasions to repeat that it was a mistake to think for one moment that the employer’s opinion concerning the existence of misconduct that would warrant dismissal might suffice to trigger the penalty, now so arduous, of section 28 and that on the contrary an objective assessment was needed sufficient to say that misconduct was in fact the cause of the loss of employment.
Neither the decision of the umpire nor the decision of the majority of the Board of Referees is, in our opinion, validly based on the evidence on the record. We are of the opinion that this Court, in the exercise of its judicial review function, is duty-bound to ensure that the applicable principles, as spelled out in its decisions, have been complied with and that the facts, as analyzed, could support the conclusions. In this case we do not have that assurance. That is why we think the matter should be re-examined on the basis of the evidence on the record or any other evidence that might be deemed necessary, an examination that the umpire could do himself or could, if he prefers, entrust to the Board of Referees, whose decision is being challenged before him.
The application will therefore be allowed, the impugned decision will be quashed and the matter will be returned to the umpire so that he may reconsider it or return it to the Board of Referees for reconsideration, taking into account the guidelines and observations contained in these reasons.
"Louis Marceau"
J.C.A.