JUDGMENT OF THE FEDERAL COURT OF APPEAL
February 6, 1995
THE ATTORNEY GENERAL OF CANADA,
HEARD at Toronto, Ontario, Monday, February 6, 1995.
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario
Monday, February 6, 1995)
We are all of the view that this section 28 application should be allowed. There was evidence that the respondent "wilfully" changed manually her time card without management approval for a second time after having been previously warned that there was a company policy and procedure to follow. Such behaviour amounted to misconduct under subsection 28(l) of the Unemployment Insurance Act (the "Act").
The learned Umpire, R. J. Marin, made two errors. First he concluded that there was no wrongful intent on the part of the respondent and therefore no intent to defraud. It is not necessary for a behaviour to amount to misconduct under the Act that there be a wrongful intent. It is sufficient that the reprehensible act or omission complained of be made "wilfully", i.e. consciously, deliberately or intentionally 1 in the present instance, the respondent knew that she could not manually alter her time card as she had been warned previously. Yet she consiously and deliberately did it.
Second, the learned Umpire looked at the reasonableness of the sanction imposed by the employer and, while not saying so in clear terms, came to the conclusion that she had been wrongfully dismissed. This appears from the following excerpt of his decision:
While there is a vague suggestion that there was fraud, it is certainly not suggested by the Board that there was fraud in this case. To my mind, there were a number of alternatives available, such as suspension, discipline or warning, instead of reaching for the ultimate decision, to dismiss her.
This was not the proper question to be addressed 2 and his personal convictions that the sanction was disproportionate appears to have influenced his final decision.
The Board of Referees had properly applied the relevant jurisprudence of this Court with respect to misconduct and its finding should not have been disturbed.
This section 28 application will be allowed, the decision of the Umpire set aside and the matter referred back to the Chief Umpire or the person by him designated for reconsideration on the basis that the appeal from the decision of the Board of Referees, rendered on February 11, 1993, be dismissed.
1 Canada (Attorney General) v. Tucker  2. f.c. 329 (Fed. C.A.).
2 Canada (A. G.) v. Summers Fed. C.A., no A-225-94, December 1, 1994, Canada (A.G.) v. Jewell, Fed. C.A., no. A-228-94, October 4, 1994.2011-01-10