CUB 10319
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
March 27, 1986
Docket:
A-381-85
Umpire's Decision:
CUB 10319
CORAM :
THE HONOURABLE MARCEAU
THE HONOURABLE STONE
THE HONOURABLE MacGUIGAN
IN THE MATTER OF an application under section 28
of the Federal Court Act
IN THE MATTER of the Unemployment Insurance Act, 1971, S.C. 1971, Chapter 48, as amended,
AND IN THE MATTER OF a Decision of the Honorable Mr. Madam Justice Reed, appointed as an Umpire pursuant to Section 92 of the Unemployment Insurance Act, 1971;
AND IN THE MATTER OF an application pursuant to Section 28 of the Federal Court Act, R.S.C. 1970, (2nd Supp.), Chapter 10, to review and set aside the Decision of the Umpire.
BETWEEN :
THE ATTORNEY GENERAL OF CANADA,
applicant,
-and-
FRANCINE TUCKER,
respondent.
REASONS FOR JUDGMENT
(Delivered from the bench at Ottawa,
on Thursday, March 27, 1986)
THE HONOURABLE MR. MacGUIGAN:
This Section 28 application is taken against a decision of Madam Justice Reed acting as an Umpire under Section 95 of the Unemployment Insurance Act, 1971, ("the Act").
The claimant in this case, a flight attendant with C.P. Air, was suspended by her employer for four months for having been impaired during the course of a flight as a result of taking tranquilizers not prescribed for her. She was disqualified under Section 41 of the Act by the Unemployment Insurance Commission ("the Commission") from receiving unemployment insurance benefits for four weeks. A Board of Referees unanimously upheld her disqualifications from benefits but reduced it from four weeks to three. Reed, J. allowed her appeal against the disqualification.
The grounds of an appeal to an Umpire under Section 95 are substantially identical with those under Section 28 of the Federal Court Act. Having found an error in law by the Board of Referees under paragraph 95(b), Reed, J. exercised her powers under Section 96 to give the decision on the facts that in her opinion the Board of Referees should have given.
Subsection 41.(1) of the Act under which the disqualification was imposed is as follows:
"A claimant is disqualified from receiving benefits under this Part if he lost his employment by reason of his own misconduct or if he voluntarily left his employment without just cause."
The relevant part of Reed, J.'s decision was as follows:
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.
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..."
While the second excerpt above does not relate to the Canadian Unemployment Insurance Act, it is, I think, a correct statement of our law in so far as it indicates that in order to constitute misconduct the act complained of must have been willful or at least of such a careless or negligent nature that one could say the employee willfully disregarded the effects his or her actions would have on job performance. No such wilfulness was present in this case."
The applicant argues, on the authority of Lord Reid in Brutus v. Cozens, (1973) A.C. 854, 861 that "the meaning of an ordinary word of the English language is not a question of law," that the ordinary meaning of the word "misconduct" does not require that the misconduct be wilful, and that the Umpire therefore erred in law in defining the word misconduct as she did.
It seems to me, however, that this question was put to rest by this Court in Attorney General of Canada v. Bedell, A-1716-83, decided July 8, 1984, unreported, where Stone, J. for the Court said of the very same subsection under consideration here that "the construction of the word "misconduct" is a question of law." Moreover, Stone, J., in delivering the reasons for decision of this Court in the more recent case of Deputy Minister of National Revenue for Customs and Excise v. Gte. Sylvania Canada Limited, decided December 11, 1985, puts in perspective the words of Lord Reid in the Brutus case:
The contextual approach to statutory construction is firmly established. It was put in this way by Stamp, J. in Bourne v. Norwich Crematorium, Ltd. (1967) 2 All E.R. 576 (Ch.D.) at page 578.
"English words derive color from those which surround them. Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which you have assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language."
Its application is well illustrated by the case of R. v. National Insurance Commissioner et al (1974) 3 All E.R. 522 (Q.B.D. Div. Ct.) There, a statutory tribunal had to construe the word "night" in a context which reads: "... he is so severely disabled physically or mentally that he requires from another person, in connection with his bodily functions, frequent attention throughout the day and prolonged or repeated attention during the night ...". Two years earlier, in Brutus v. Cozens (1972) 2 All E.R. 1297, (1973) A.C. 854, the House of Lords had decided (per Lord Reid at page 861) that the meaning of an ordinary word of the English language is not a question of law although the proper construction of a statute is such a question. The reasoning of Lord Widgery C.J., speaking for the Court (at page 526), commends itself to me:
"Now as to the construction of the Section, it is important to remember the words of Lord Reid in Brutus v. Cozens (1972) 2 All E.R. 1297, (1973) A.C. 854. In that case Lord Reid was considering the meaning of the word "insulting in a statute with which this court is more familiar than the statute now under consideration. We observed that the giving of a meaning to an ordinary English word is not a question of law at all, but of course the construction of a statute is a question of law. In regard to those matters, I take warning from what Lord Reid said that in considering here what is on the face of it an ordinary English word "night" prima facie the giving of a meaning to that word is not a matter of law at all. However, though "night" is one of the commonest English words in its ordinary usage, it does have different shades of meaning and the decision of the correct shade of meaning to give to the word in a particular context requires consideration of the context and thus becomes a matter of construction and therefore a matter of law." (Emphasis added)
A Court is not a lexicographer and is no greater authority on ordinary usage than any other student of language. But it is an official interpreter of statutes, and when a word appears in a statutory context, it is for a Court to interpret that word as a matter of law. Of course, as Stone, J. wrote in the Bedell case, supra, "whether a particular act or omission on the part of an employee is of such a nature as to fall within it is a question of fact," but that is to say that a complete judgment as to the application of the statute in a particular instance is a question of mixed law and fact, not that it is a question of fact alone. The construction of a statutory word is a matter of law; its application to particular facts a matter of fact.
In the case of subsection 41(1) of this Act, all of the considerations I have been able to isolate support Madam Justice Reed's interpretation. There is, first, the definition from Black's aw Dictionary with its emphasis on "willful or wanton disregard of employer's interest." There are the modifying personal pronouns "his own" before misconduct, which imply responsibility and so intentionally or recklessness. There is the parallelism with the requirement of "voluntarily" leaving his employment without just cause. There is the French phrase sa propre inconduite, with a similar connotation to that of the English phrase. Finally, and perhaps most important, there is the rationale of the whole provision, which is to impose a disqualification as a kind of "punishment" for undesirable conduct which falls short of the true unemployment the Act intends to benefits. The most the applicant was able to come up with on the other side was one dictionary definition that was ambiguous on the point. I have no hesitation in concluding that Reed, J. correctly interpreted subsection 41(1) as requiring for disqualification a mental element of willfulness, or conduct so reckless as to approach willfulness.
The applicant argues, alternatively, that the Board of Referees committed no error of law in its decision. The operative part of that decision is as follows:
"STATEMENT OF FACTS:
The claimant was present as was Mr. Day, representative of the Union. The claimant agreed that she had been impaired during the flight in question and that she had not been capable of performing her duties. She said she had not been relieved of her duties during the flight and had not been approached about her behaviour by her supervisor until the return flight home the next day. The claimant said her attendance record had been poor but it had all been occasions for which she had submitted doctors letter (sic) and for which she had been granted leave. The claimant claimed that she had used poor judgment in taking medication not prescribed to her which had caused her impairment. She asked that her foolish behaviour not be judged too severely as she had not intended to neglect her duties.
CONCLUSION:
The Board weighed all the evidence presented and considered that absenteeism with medical excuses could not be considered misconduct. The Board considered the admission of impaired performance during a flight as "admission of misconduct". The Board considered the circumstances surrounding the event and felt there were some extenuating circumstances involved.
DECISION:
It is the unanimous decision of the Board that the appeal be DISALLOWED, however, the disqualification imposed under Sec. 41 & 43 of the Unemployment Insurance Act, 1971 to be reduced to 3 weeks."
The material facts upon which the Board makes it clear that it founds its conclusion appear to be as follows: (1) the claimant's admission of impairment during the flight in question; (2) her denial of incapacity to perform her duties during that flight; (3) her admission of poor judgment in taking medication not prescribed to her; (4) her plea that her foolish behaviour not be judged too severely. In sum, she admitted the fact of impairment but denied the requisite mental element of misconduct ("she had not intended to neglect her duties").
On the basis of these facts the Board concludes that her admission of impaired performance during a flight was an admission of misconduct. Since her admission was an admission of a fact only, and not of the requisite mental state, the only meaning that can be given to the Board's conclusion is that the Board considered proof of a mental element unnecessary. This is to read subsection 41(1) as the applicant urged, as not requiring willfulness or recklessness. As I have already indicated this is a misinterpretation of subsection 41(1) and is thus an error of law on the part of the Board.
Once the Umpire has correctly found an error of law by the Board, the question as to whether there was evidence before the Board which could reasonably allow it to come to the conclusion it did not longer arises. Under Section 96 of the Act the Umpire is herself entitled to give the decision she believes the Board should have given.
I would therefore dismiss the appeal.
"Mark R. MacGuigan"
J.F.C.C.
"I agree.
A.J. Stone, J."
THE HONOURABLE MR. MARCEAU:
This is an application by the Attorney General, pursuant to Section 28 of the Federal Court Act, to review and set aside the decision of Madame Justice Reed, sitting as an Umpire under the Unemployment Insurance Act, 1971, allowing an appeal brought by the Respondent against a decision of the Board of Referees. The facts may be quickly summarized but, to appreciate the issues, it will be necessary to look at the words used by the Referees in certain passages of their decision and then review closely the reasons given by the Umpire in support of her conclusion.
On October 27, 1982, the Respondent, who was employed by Canadian Pacific Airlines as a flight attendant, was suspended without pay pending an investigation into her conduct while at work. The investigation revealed that indeed she had been intoxicated during a flight and incapable of performing her duties. As a result of negociations between the employer and a union representative, it was finally agreed that the Respondent would not be discharged but would serve a suspension of four months. The Respondent, thereupon, applied for unemployment insurance benefits for the period of the suspension.
The Commission accepted the claim but notified the Respondent that the benefits would be suspended for the first four weeks for which they would otherwise be payable on the basis that she had lost her employment by reason of her own misconduct and a disqualification period had to be imposed under paragraph 41(1) of the Act which reads as follows:
"Sec. 41(1) A claimant is disqualified from receiving benefits under this Part if he lost his employment by reason of his own misconduct or if he voluntarily left his employment without just cause."
The Respondent appealed the Commission's ruling to the Board of Referees. Appearing before the Board, she pointed out, with respect to her poor attendance record to which the employer had alluded, that, at each occasion, she had submitted "doctors" letters" and went on to explain that her impairment on the flight in question was due to the fact that she had taken medication (tranquilizers) not prescribed to her, asking, in the words of the Board, "that her foolish behaviour not be judged too severely as she had not intended to neglect her duties." After a concise but complete statement of the facts they considered relevant, the Referees expressed their conclusion and decision as follows:
"CONCLUSION:
The Board weighed all the evidence presented and considered that absenteeism with medical excuses could not be considered misconduct. The Board considered the admission of impaired performance during a flight as "admission of misconduct". The Board considered the circumstances surrounding the event and felt there were some extenuating circumstances involved.
DECISION:
It is the unanimous decision of the Board that the appeal be DISALLOWED, however, the disqualification imposed under Sec. 41 & 43 of the Unemployment Insurance Act, 1971 to be reduced to 3 weeks."
The learned Umpire wrote lengthy reasons in support of her conclusion that the appeal of the Respondent against the decision of the Board was well founded but her reasoning can be reviewed and summarized by referring to the essential passages thereof.
The Umpire begins her analysis by raising the question of whether the Board had considered, in coming to its decision, "that there must be a willfulness in order to find misconduct." She notes that "the record does not disclose to me that the Board did address its mind to this crucial point ..." and that "there is no indication that the Commission drew to the Board's attention the fact that impairment alone might not be sufficient to demonstrate misconduct ..." (p. 4 of the Reasons), and then writes (p. 5):
"I cannot conclude from the record, as it stands, that the Board addressed itself to the claimant's mental intention. Accordingly, this is an appropriate case for me to consider the claimant's case, and render a decision pursuant to Section 96 of the Unemployment Insurance Act, 1971, R.S.C. 1970-71-72, c. 48, as amended."
Having thus concluded that it was open to her to give decision that should have been given by the Board of Referees, the Umpire speaks of the "foolishness", readily acknowledged by the Respondent herself, of the act of taking medication prescribed for someone else but points out that, nevertheless, the Respondent had become impaired unintentionally. There could be no misconduct therefore, since, she declares (p. 8):
"... in order to constitute misconduct the act complained of must have been wilful or at least of such a careless or negligent nature that one could say the employee wilfully disregarded the effects his or her actions would have on job performance. No such wilfulness was present in this case."
As her final disposition, the Umpire simply allows the appeal, meaning obviously that it was not only the decision of the Board that was thereby set aside but also the ruling of the Commission.
In his application herein, the Attorney General adopts two lines of attack against the decision of the Umpire. One is that the Umpire exceeded her jurisdiction in substituting her view of the facts of the case for that of the Board of Referees, and the other, that the Umpire erred in law in defining as she did the word "misconduct" in paragraph 41(1) of the Act. While the latter criticism does not appear to me completely justified, the former one, in my view, is definitely so.
1. The Appellant contends that in defining the word "misconduct" as used in paragraph 41(1), the Umpire has erroneously read into the provision a qualification that was not there, that of voluntariness or wilfulness. The word misconduct in itself does not require that the act referred to be voluntary, he says, and if it had been intended that it be so in this particular instance the phrase "wilful misconduct" would have been used. I disagree. It may be that the English word "misconduct" has no necessary connotation with voluntariness or wilfulness, but I do not think the same can be said of the corresponding word in the French version of the text, the word "inconduite". Besides, the context requires that the word be understood with such connotation, since the purpose of the provision is to impose a penalty, and no one would think of punishing an individual for something done without his free will.
I am of the opinion, however, that the Umpire went too far in her characterization of the voluntariness required when she said that "... in order to constitute misconduct the act complained of must have been wilful or at least of such a careless or negligent nature that one could say the employee wilfully disregarded the effects his or her actions would have on job performance." Not only does it appear clear to me that the spirit behind the statement was unduly influenced by preoccupations attached to the criminal law, I even have difficulty with the meaning of the statement itself, when the practical components of human behaviour are taken into account. It seems to me that one should not confuse a certain action and the effects thereof. Only the action needs to be wilful to constitute misconduct, and it may be so even if the effects are not intended. Impairment is not an action, it is the effect of an action. Besides, when reference is made to the "conduct" of an individual, most of time, what is referred to is not a single action but a series of actions somehow linked to one another, and the conduct itself may certainly be seen as wilful even if some of these interrelated actions come about as a necessary consequence of preceding ones and as such are not themselves dictated by volition. A few simplistic illustration will show what I mean. It was not my intention to bump into someone walking on the sidewalk, but it happened because, going out of the house, I rushed through the door without first making sure that the way was clear, or it happened because I had been running with my eyes closed. I failed to see, in everyday instances of this type, which act is the one referred to in the test suggested by the Umpire. In my view, the concept of misconduct is applicable to any behaviour, abnormal in itself or regrettable in its effects for which a person may be to blame; and its application requires the consideration of all surrounding circumstances, such as, in the case of an employee, the nature of his duties, his intention at the time of the incident, the certainty, probability or mere possibility, immediate or remote, that his ability to satisfactorily perform his duties would be affected or that unfortunate consequences would ensue, the gravity of those consequences, etc. So a practical and moral judgment based on totality of the circumstances is involved. And with this observation in mind, I pass on to my second and main point.
2. It seems to me, as I read the reasons of the Board, that the Referees did exactly what they were called upon to do, that is to say, give their opinion as to whether, in view of all the circumstances, the Respondent could incur reproaches for her unusual behaviour. It may be said that a question of law was involved in the sense that a word used in a provision of law had to be properly understood in context (see on this point the comments of Stone, J. in Deputy Minister of National Revenue and Gte Sylvania Canada Limited, a recent judgment of this Court, dated December 11, 1985, A-539-83). I do not think, however, that the word here was intended to be given any meaning other than its usual and ordinary one -- which renders the question of law quite an inconsequential one -- and, above all, I see nothing in the statements of the Board which could lead to the conclusion that it misunderstood the meaning of the provision. As seen above, the learned Umpire's censure is merely based on the fact that she "cannot conclude, from the record as it stands, that the Board addressed itself to the claimant's mental intention". One may very strongly disagree with such an assumption since the consideration of the mental disposition of the Respondent appears to be the only possible reason for which the Board could intervene as it did to reduce, from four to three, the number of weeks of disentitlement. But, in any event, what the Umpire in effect says is that she cannot be sure that the Board had not committed an error. This appears to me a complete reversal of the presumption of validity that must attach to all decisions of first instance particularly those open to only limited review such as the decisions of the Boards of Referees under the Act. 1 The mere possibility or even concern that an error may have been committed by the Board does not entitle the Umpire, in my respectful opinion, to proceed to a reconsideration of the facts and to substitute his or her appreciation for that of the Referees. To be able to infer, from a mere lack of clear explanation as to their understanding of the law, that the Referees had committed an error, the Umpire, I think, had to be satisfied that, on the facts of the case, no reasonable person apprised of the law could have reached the conclusion they arrived at. It is to me obvious (as it was, no doubt, to the union representative who negotiated the four month suspension) that that was not the case.
With all due respect for the opposite view, I think that the Umpire was not entitled to intervene here and that her decision should not be allowed to stand. The matter should be referred back to her for reconsideration on the basis that there is no ground on which the decision of the Board could be impeached.
"Louis Marceau"
J.F.C.C.