CUB 36064
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
September 16, 1997
Docket:
A-1036-96
Umpire's Decision:
CUB 36064
"TRANSLATION"
CORAM :
THE HONOURABLE MR. JUSTICE MARCEAU
THE HONOURABLE MR. JUSTICE MacGUIGAN
THE HONOURABLE MADAM JUSTICE DESJARDINS
BETWEEN :
MARIO GUAY,
applicant,
-and-
THE CANADA EMPLOYMENT
AND INSURANCE COMMISSION,
respondent,
-and-
THE DEPUTY ATTORNEY GENERAL OF CANADA,
mis en cause.
Hearing held in Montréal, Quebec, Tuesday, September 16, 1997.
REASONS FOR JUDGMENT OF THE COURT
(Pronounced at the hearing in Montréal, Quebec,
Tuesday, September 16, 1997)
MARCEAU J.A.:
We are all of the opinion, after this lengthy exchange with counsel, that this application for judicial review of a decision of an umpire acting under the authority of the Unemployment Insurance Act is entitled to succeed. It is our view, in fact, that in contradicting as he did the unanimous decision of the Board of Referees, the Umpire failed to remain within the limits of his power of review and supervision under the Act.
The reasoning underlying the umpire's conclusion is, briefly put, the following. Notwithstanding that the employee's breaches, as alleged by his employer, were in reality of little or no significance, as the Board of Referees held, they were employment-related breaches bearing on points to which the employer attached some importance. Such reasoning, in our view, would in no time reduce us to the thesis that the presence of misconduct entailing disqualification under section 28 of the Act can be left to the judgment and subjective appreciation of the employer, a thesis that this Court has on many occasions gone out of its way to denounce. 1 It is undeniable that successive breaches, albeit minor, can constitute misconduct, but it is more doubtful that "peccadillos" will become misconduct through repetition. In any event, it is the Board of Referees - the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts - that must make this assessment.
In this case the Board of Referees, on the basis of the facts it had found and the testimony it had heard, refused to concede that the applicant's breaches, even when considered in conjunction, could constitute misconduct within the meaning of section 28 of the Act, even though the employer may have thought these were sufficient to merit dismissal. The umpire, in our opinion, could not dismiss this finding by the Board solely on the basis of reasoning that, when all is said and done, simply gives unfettered priority to the view of the employer.
The respondent argues that to dismiss the umpire's approach in favour of the Board's may create a precedent that could deprive section 28 of the Act of any content. We do not really see how this could be the case, since misconduct judgments are not infrequent in the Board of Referee's precedents, but the observation does prompt us to say in reply that it is precisely the umpire's approach that could seal the fate of section 28 : it is hard to see how an employer, having fired his employee for work-related conduct, would confess that the breach on which his reaction was based was not connected with the contract of employment and was not of such importance to him.
The application for judicial review will therefore be allowed and the matter returned to the umpire for a redetermination on the presumption that the Board of Referee's decision, as presented, is not subject to his intervention.
Louis Marceau
J.A.