CUB 29423
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
May 16, 1996
Docket:
A-732-95
Umpire's Decision:
CUB 29423
CORAM :
THE HONOURABLE MR. JUSTICE MARCEAU
THE HONOURABLE MR. JUSTICE MacGUIGAN
THE HONOURABLE MR. JUTICE ROBERTSON
BETWEEN :
HOSSEIN FAKHARI,
applicant,
-and-
THE ATTORNEY GENERAL OF CANADA,
respondent.
Heard at Vancouver, B.C. on Thursday, May 16, 1996.
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, B.C.
on Thursday, May 16, 1996)
ROBERTSON, J.A.:
The Unemployment Insurance Commission (the "Commission") had determined that the applicant had lost his employment with the North Vancouver Recreation Commission because of his own misconduct and, therefore, was disqualified under section 28 of the Unemployment Insurance Act from receiving benefits. On appeal, the Board of Referees (the "Board") concluded otherwise. In response, the Commission appealed that decision to the Umpire who set aside the Board's decision and restored the Commission's initial ruling. This judicial review application seeks to reinstate the Board's decision.
It cannot be denied that the applicant was less than forthright with his employer when confronted with the allegation that he held over-lapping employment with another recreation authority; other employment which could have prevented him from fulfilling all of his contractual obligations to the North Vancouver Recreation Commission. That being said, the Board was not prepared to hold that the applicant had lied. Alternatively, the Board held that his conduct did not amount to misconduct which would warrant dismissal. The learned Umpire took a different view of the facts and held that a denial of a "true fact" constitutes a lie and that the applicant's failure to be truthful constitutes misconduct within the meaning of section 28 of the Act. The Umpire also held that the Board erred in assessing whether the attendant circumstances justified the employer's decision to dismiss the applicant for such misconduct. In reaching that particular conclusion, the Umpire relied on the following passage from Canada (Attorney General) v. Jewell (1994), 175 N.R. 350 (F.C.A.):
.... s. 28 is applicable so long as the employer is satisfied that the misconduct complained of warranted dismissal, even if the subjective assessment could not be sustained as a defence in a wrongful dismissal action.
While the above passage represents an accurate distillation of the reasoning offered in two earlier decisions of this Court, we are of the view that it does not accurately reflect the jurisprudence which has grown up around the concept of misconduct as employed in section 28 of the Act. An employer's subjective appreciation of the type of misconduct which warrants dismissal for just cause cannot be deemed binding on a Board of Referees. It is not difficult to envisage cases where an employee's actions could be properly characterized as misconduct, but the employer's decision to dismiss that employee will be rightly regarded as capricious, if not, unreasonable. We do not believe that an employer's mere assurance that it believes the conduct in question is misconduct, and that it was the reason for termination of the employment, satisfies the onus of proof which rests on the Commission under section 28. Thus, our decision in Jewell can no longer be considered of any precedential value.
We are also of the view that in reaching its decision, the Board had proper regard to the evidence presented by both the Commission and the applicant and that the Board's finding with respect to the applicant's credibility could not be disturbed. The Umpire, in our view, was not entitled to substitute his appreciation of the evidence and his conclusion for that of the Board. Accordingly, it is our judgment that the application is well founded and that the decision of the Umpire must be set aside, and the matter remitted to the Chief Umpire or his designate for reconsideration on the basis that there are no grounds for interfering with the Board's decision.
(Sgd.) "J.T. Robertson"
J.A.