IN THE MATTER of the Employment Insurance Act
- and -
IN THE MATTER of a claim for benefits by
GARTH GRANSTROM
- and -
IN THE MATTER of an appeal by the Commission to an
Umpire from a decision by the Board of Referees given at
Kelowna, British Columbia, on September 28th, 2001.
CORRESPONDING FEDERAL COURT DECISION: A-444-02
DECISION
Heard at Kelowna, British Columbia, on May 10th, 2002.
W.J. HADDAD, Q.C., UMPIRE:
The issue in this appeal, filed by the Employment Insurance Commission, is whether claimant lost his employment due to his misconduct.
The claimant employed by An-Mar Concrete Pumping Co. Ltd., as the driver of a concrete pump truck, lost his employment on July 21, 2001, after he was charged with driving a motor vehicle while his ability to drive was impaired by alcohol - due to the fact that his license was suspended pursuant to a provincial statute for a period of three months. His employer was unable to employ him in another capacity pending reinstatement of his driving privileges.
The essential portions of the Board's decision reads as follows:
"At the oral hearing the appellant stated that he lost his license due to an Alberta provincial requirement that his license be suspended for three months pending the outcome of an impaired driving charge. The appellant admitted to have alcohol in his system, but a guilty or innocent verdict has not been established yet under Alberta law...
The Board has established as fact the following:
1. The appellant had his drivers license suspended for three months.
2. The appellant admitted to drinking, but states that the amount of blood alcohol has not been established.
3. The appellant lost his position because he did not have a valid drivers license for three months.
The appellant's argument is that the license was suspended but what has not been proven to date is his guilt or innocence for driving while under the influence.
All jurisprudence that the Board is aware of states that if an appellant loses his license due to a wrongful act and the loss of the license results in job lost then it is misconduct.
The Board finds that the misconduct has not been proven as a wrongful act has not yet been proven. Until it has been shown that wrongful act has occurred, the appellant has not committed an act that is reckless and willful to approach misconduct."
It will be observed that evidence received by the Board is that claimant's license was suspended under an Alberta provincial requirement. The "requirement" under which the suspension was made was not produced or cited. In its representations to the Umpire in support of this appeal the Commission said that the suspension was made under the British Columbia Administrative Driving Prohibitions without citing the relevant provisions thereof. There is no evidence in the material to indicate the province in which claimant committed the alleged offence of impaired driving. The Board of Referees statement to the effect that there has been no verdict under Alberta law suggests that claimant was charged while driving in Alberta but that is not confirmed in the material filed.
The provisions of the provincial statute pursuant to which the suspension was made has not been produced to permit the Board of Referees or the Umpire to examine the reason for the suspension for the purpose of determining whether claimant committed an act which may be considered misconduct.
The Commission proceeded on the promise that the charge of impaired driving without more, consists of misconduct. I am in accord with the view adopted by the Board of Referees that unless a conviction of the charge has been recorded no wrongful act has been proven.
The claimant admitted to drinking alcohol but there is no evidence as to the amount he consumed. The act of consuming alcohol does not consist of an act of misconduct unless it can be shown that the consumption was excessive.
The act of misconduct upon the Commission relied has not been identified. The Commission's submission that the Board of Referees erred in law has not been established.
The appeal is dismissed.
"W.J. Haddad"
W.J. Haddad, Q.C. - Umpire
Dated at Edmonton, Alberta,
June 12th, 2002.