TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
R.I.
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IN THE MATTER of an appeal to an Umpire by the claimant
from the decision of a Board of Referees given on
January 26, 2011, at Shawinigan, Quebec.
The Honourable R. J. Marin
The claimant’s appeal was heard in Trois-Rivières on February 9, 2012.
He appealed from the Commission’s decision that he lost his employment by reason of his own misconduct within the meaning of sections 29 and 30 of the Employment Insurance Act. The Board of Referees dismissed the appeal and its reasons can be found in Exhibit 17.
In its findings, the Board stated [last paragraph, Exhibit 17.6]:
[Translation]
[T]he appellant is the author of his own misfortune and he acted carelessly and negligently.
Counsel for the claimant stated that this finding ignores the law, which consistently holds that misconduct does not correspond to negligence or carelessness unless it is of such recurrence as to manifest wrongful intent.
Exhibit 5 in the appeal docket seems to summarize the facts given by the claimant, which did not change. His statements were consistent. The claimant’s testimony was reproduced and a transcript was submitted.
It seems that the claimant, after being informed that he was probably going to lose his driver’s licence because of unpaid tickets, did not receive the official notice informing him of his suspension, which was issued without his knowledge in January 2010. It was not until February 2010, following an accident, that the employer was informed of the notice, which had finally been brought to the claimant’s attention. The claimant’s employment was terminated.
The fact that the notice was delivered was not disputed. However, it was delivered to one of his roommates, who set it aside. Canada Post and one of his four roommates were to blame for the error. The notice was recorded as being sent by registered mail and, contrary to Canada Post’s requirements, it was not delivered to the recipient, but to a third party. One of the roommates allegedly signed for the notice and set it aside without giving it to the claimant. The Board did not comment on or dismiss this version of the facts.
The issue under appeal is whether, under the circumstances, the Société d’assurance automobile du Québec (SAAQ) fulfilled its obligation to issue the notice of suspension as required by the rules, and whether, in this case, the claimant was aware of the suspension.
He stated that he did not have a registered letter informing him that his licence would be officially suspended. This version is consistent and was not dismissed by the Board, which stated that he was careless and negligent. The claimant alleged that he would have taken the necessary measures to keep his employment. The evidence in the appeal docket shows that the claimant had had similar incidents with the SAAQ for unpaid fines. He was pushing the deadlines. He was then issued an official notice and it seems that he found the money needed to clear his file. Careless or negligent, it is difficult to determine. He was possibly delaying the inevitable. However, it is clear that the SAAQ issues an official warning before imposing a suspension on its clients. The warning is issued by registered mail.
The challenge of the issue is determining what constitutes misconduct and whether, in this case, the Board committed an error by failing to consider the nature of the act of misconduct, which must have been committed consciously, deliberately or intentionally. In this case, counsel for the claimant stated that the carelessness cited by the Board was not sufficient to constitute misconduct. Abundant case law was submitted, including the Federal Court of Appeal’s decision in Tucker (A-381-85), an excerpt of which is below:
In order to determine whether misconduct occurred in the present case, one must look to the general legal principles respecting that concept as it relates to employee-employer relationships. In this regard, I note that in the text by Innis Christie, on Employment Law in Canada (1980) it is stated, at page 361:
“It is clear that a breach of some of the implied obligations of the employee is more serious than the breach of others.
... Dishonesty aside, the courts seem to be prepared to accept that employees are human; they may-get ill and be unable to fulfill their obligations and they may make mistakes under pressure or through inexperience.”
Black’s Law Dictionary (1979, 5th, Ed.) says of misconduct:
“... its synonyms are misdemeanour, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.
(Emphasis added)
Misconduct, which renders discharged employee ineligible for unemployment compensation, occurs when conduct of employee evinces willful or wanton disregard of employer’s interest, as in deliberate violations, or disregard of standards of behavior which employer has right to expect of his employees, or in carelessness or negligence of such degree or recurrence as to manifest wrongful intent...”
(Emphasis added)
The claimant also supported his claims with the decision in Secours (A-352-94) and the decision of Umpire Haddad, who ruled similarly in CUB 61838:
The Board referred to the meaning of misconduct by Canada (A.G.) v. Tucker (1986) 2 F.C. 329 and specifically noted “that for actions to constitute misconduct under the EI Act, they must be willful or so reckless as to approach willfulness”. The Board of Referees, notwithstanding its awareness of the definition of misconduct failed, in reaching its conclusion to consider the existence on the part of the claimant of the mental element of willfulness. The Board’s conclusion simply states: ...
... The Board erred in law by its omission to consider the wilful element. The Court of Appeal has defined willful as “consciously, deliberately or intentionally”.
(Emphasis added)
Finally, the Federal Court of Appeal’s decision in Tompson (A-636-08) was brought to my attention, particularly paragraphs 10 and 11, which I note:
[10] Leaving for vacation without receiving written approval, but assuming that it had been approved, is materially different from the Board’s finding that he left knowing that his request had not been approved. While this conduct might warrant disciplinary action by the employer, it is not clearly so serious a breach of duty in the circumstances of this case as to constitute “misconduct” within the meaning of the Regulations and thus to disqualify the employee from receiving employment insurance benefits.
[11] Accordingly, we are not persuaded that the Umpire committed any reviewable error in setting aside the Board’s decision on the ground that it was based on an unreasonable finding of fact, namely, that Mr Tompson had gone on vacation “knowing it had not been approved”.
Without commenting further, the transcript [p. 20] shows the claimant’s careless nature. The Board seems to have erred with regard to the concept of misconduct requiring “misdemeanour, misdeed, misbehaviour, mismanagement, offense, but not negligence or carelessness.” Tucker (supra).
In light of the facts and the case law, I am satisfied that there was an error of law in the Board’s decision. My intervention is warranted. I rescind the Board’s decision and allow the claimant’s appeal, setting aside the finding of misconduct.
R. J. MARIN
UMPIRE
OTTAWA, Ontario
March 2, 2012