CORRESPONDING CUB: 24234A
JUDGMENT OF THE FEDERAL COURT OF APPEAL
October 24, 1994
THE ATTORNEY GENERAL OF CANADA,
- and -
Heard at Toronto, Ontario, October 24, 1994.
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
Monday, October 24, 1994)
This judicial review application bears upon certain punitive aspects of the Unemployment Insurance Act (the "Act") applicable in the context of a claimant whose employment has been terminated by reason of his or her own misconduct. In the present case, it was found by the Unemployment Insurance Commission (the "Commission") and the Board of Referees (the "Board") that the respondent's term of contract of employment had not been renewed by his employer because of a "profanity" he uttered to a third party. The accepted evidence is that the respondent was confronted, in a college setting, with a student conducting himself in an obnoxious manner. In retaliation the respondent verbally chastised the student, calling him an "asshole".
Because the respondent's employment was terminated for what it characterized as misconduct, the Commission disqualified the respondent from securing benefits for eight weeks and reduced the rate of benefits from 50% to 60% of his average weekly earnings. The disqualification were imposed pursuant to subsection 28(1) of the Act, which reads as follows:
28(1) A claimant is disqualified from receiving benefits under this Part if he lost his employment by reason of his own misconduct of if he voluntarily left his employment without just cause.
The respondent's appeal the Board was dismissed on the basis that his behaviour amounted to misconduct:
The question is was his loss of employment due to his own misconduct? The reason given by the employer that he called a student an "asshole" (Exhibit 14.1) and this was unacceptable conduct for a teacher does to the board's mind constitute misconduct. The board does note that there were certainly several factors in the case (Exhibit 16.1 - 16.9) but those facts were taken into account by the Commission as extenuating circumstances in setting the period of disqualification at only 8 weeks (Exhibit 14.3).
The respondent's further appeal to an Umpire was allowed. Applying section 80 of the Act, the learned Umpire considered the utterance of the profanity which led to the respondent's termination and held that it was "not just cause for dismissal". At p. 3 of his reasons he stated:
In this case, the evidence is of only one incident, the teacher was provoked. The student involved was male and the environment was an industrial art shop. There is no suggestion that this was not the first occurrence of this type for the claimant. This was the evidence before the Board of Referees. In my opinion, in these circumstances, what occurred had no material bearing on the claimant's efficacy in his job performance and was not detrimental to the employer's interest. The incident was minor and insignificant and was not just cause for dismissal... My finding is that the Board of Referees must have arrived at this decision without regard to this evidence before it.
In short, the learned Umpire concluded that the respondent was wrongfully dismissed.
We are all of the view that this judicial review application must succeed. In setting aside the decision of the Board the learned Umpire addressed the wrong question. The proper question asked by the Commission and the Board was whether the respondent lost his employment because of his own misconduct. The jurisprudence of this Court as to what constitutes misconduct is set out in Canada v. Bedell, (1985) 60 N.R. 116 (F.C.A.), Canada v. Brissette,  1 F.C. 684. Collectively these cases stand for the proposition that if the necessary mental element is absent the conduct complained of will not be characterized as misconduct within the contemplation of section 28 of the Act.
On the other hand, the Umpire asked whether the respondent's misconduct constituted "just cause" for dismissal. In so doing he erred in light of an earlier decision of this Court. In Attorney General of Canada v. Namaro, (1983) 46 N.R. 541 (F.C.A.) it was held at p. 544:
In my view, the Board asked themselves the wrong question. The question they should have asked and answered was whether the claimant was dismissed for misconduct. Instead, they directed themselves to the question as to whether the attendant circumstances justified dismissal for misconduct. (For a similar view, see the Judgement of the Le Dain, J., in Davlut v. A.G. of Canada (1982), 46 N.R. 6).
Thus, as the law stands today, section 28 is applicable so long as the employer was satisfied that the misconduct complained of warranted dismissal, even if that subjective assessment could not be sustained as a defence in a wrongful dismissal action. For this reason, this section 28 application will be allowed and the decision of the Umpire dated March 4, 1994 set aside.