CUB 41931
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
19991125
Docket:
A-582-98
Umpire's Decision:
CUB 41931
"TRANSLATION"
CORAM :
DÉCARY, J.A.
LÉTOURNEAU, J.A.
NOËL, J.A.
BETWEEN :
ATTORNEY GENERAL OF CANADA,
plaintiff,
-and-
MICHEL TURGEON,
defendant.
Hearing held at Montréal, Quebec, November 25, 1999.
REASONS FOR JUDGMENT
(Delivered from the bench at Montréal, Quebec
on Thursday, November 25, 1999)
DÉCARY, J.A.:
[1] The board of referees stated that in its opinion the claimant ("the defendant") had not lost his employment because of his misconduct within the meaning of s. 28(1) of the Unemployment Insurance Act because that misconduct was caused by his problems with alcoholism. The umpire, though he found that in the case at bar the alcoholism was not [TRANSLATION] "well documented by extensive medical evidence", did not intervene in the board of referees’ decision as the latter was [TRANSLATION] "responsible for the facts".
[2] On the contrary, the umpire should have intervened. Even admitting purely for the sake of argument that alcoholism could be relied on to justify misconduct within the meaning of s. 28(1), there was no evidence before the board of referees in the case at bar allowing it to conclude that the alcohol problem alleged by the claimant was such as to allow him to argue this justification. The mere fact of having an alcohol problem is not in itself sufficient to make the exclusion contained in s. 28(1) inapplicable to a claimant.
[3] The application for judicial review will be allowed with costs, the decision of the umpire quashed and the matter referred back to the chief umpire of such umpire as he shall appoint to be decided on the basis that the Commission’s appeal should be allowed and the board of referees’ decision on March 12, 1996 set aside.
Robert Décary
J.A.