CORRESPONDING CUB: 29729
JUDGMENT OF THE FEDERAL COURT OF APPEAL
September 11, 1997
- and -
THE ATTORNEY GENERAL OF CANADA,
Heard at Ottawa, on Wednesday, September 3, 1997.
REASONS FOR JUDGMENT
(Judgment rendered at Ottawa, Ontario,
on Thursday, September 11, 1997)
The facts are not in dispute.
The applicant was charged, on July 9, 1993, with the offence of "driving while over 80". He obtained employment with Highland Drivers Limited from February 7, 1994, until May 14, 1994, as a truck driver. He was then on sick leave from May 16, 1994, until June 1, 1994. A condition of his employment was that he maintain a Class A driver's licence. On May 31, 1994, the Provincial Court (Criminal Division) ordered that the applicant's driving privileges be suspended for one year starting May 31, 1994. He informed his employer that he had lost his licence due to a drinking and driving offence and resigned voluntarily on June 4, 1994.
Both the Commission and the board of referees disqualified the applicant from unemployment insurance benefits on the basis that he did not have just cause for voluntary leaving contrary to subsection 28(1) of the Unemployment Insurance Act 1. The umpire confirmed those decisions. He added, however, a second ground, namely that "where a term of employment is the maintenance of a driver's licence, the loss of the driver's licence by the actions of the claimant is sufficient to constitute losing his employment by virtue of his own misconduct".
My colleague Marceau J.A. concludes that the applicant could not be declared disqualified on the basis of section 28 of the Unemployment Insurance Act, since the suspension of the applicant's licence was due to an offence committed before the employment occurred.
I do not agree.
The notions of "misconduct" and "voluntary leaving without just cause" are two distinct concepts which are treated distinctly under the Act although, as noted by Marceau J.A. in Canada (Attorney General) v. Easson 2, they are related and are sanctioned similarly by special disqualification. Both the Commission and the board of referees based their decisions on the ground of voluntary leaving the employer "without just cause".It is this concept that I will analyze first.
"Just cause" is undefined under the Act. Its meaning is one of law. In ,Tanguay v. Unemployment Insurance Commission 3 a group of employees had left their jobs so as to make room for younger ones. The board of referees accepted the reason given as amounting to "just cause" but the umpire rejected it Pratte J.A., for the Court, confirmed stating the following: 4
... it seems clear that the board decided as it did because it was of the view that the applicants had acted reasonably in leaving their employment. This indicates a complete misunderstanding of the words "just cause" in s. 41(1). In the context in which they are used these words are not synonymous with "reason" or "motive". An employee who has won a lottery or inherited a fortune may have an excellent reason for leaving his employment: he does not thereby have just cause within the meaning of s. 41(1). This section is an important provision in an Act which creates a system of insurance against unemployment, and its language must be interpreted in accordance with the duty that ordinarily applies to any insured, not to deliberately cause the risk to occur. To be more precise, I would say that an employee who has voluntarily left his employment and has not found another has deliberately placed himself in a situation which enables him to compel third parties to pay him unemployment insurance benefits. He is only justified in acting in this way if, at the time he left, circumstances existed which excused him from thus taking the risk of causing others to bear the burden of his unemployment.
Pratte J.A. cited with approval the following statement of Donaldson L.J. of the English Court of Appeal in Crewe et al. v. Social Security Commissioner: 5
... It is of the essence of insurance that the assured shall not deliberately create or increase the risk. 6
In the case at bar, the applicant voluntarily increased the risk of loosing his employment. He sought employment in the area of trucking while his driving licence was clouded with the likelihood of a suspension. Can he, in those circumstances, expect to share the unemployment insurance fund causing others to bear the burden of his unemployment? I do not think so. Under the basic principles of insurance, the applicant placed himself from the beginning in a situation of high risk in terms of loosing his employment without "just cause".
Subsection 28(4) of the Act 7 provides some understanding for the meaning of the phrase "just cause" for voluntarily leaving an employment. It provides for an examination of "all the circumstances", including those enumerated in that section, so as to determine if "the claimant had no reasonable alternative to leaving the employment". An examination of the enumerated circumstances indicate situations occurring independently from the will or participation of the claimant and beyond his control. This is true with regard to all the headings, but one should note in particular paragraph (j) which reads:
(j) antagonistic relations between an employee and a supervisor for which the employee is not primarily responsible;
This is not our case. Admittedly, the applicant in the case at bar had no other reasonable alternative but to leave his employment. But the reason of his leaving was the loss of his driving licence for which he was responsible, having been found guilty of a drinking and driving offence. This was not a "just cause".
The umpire referred to the misconduct of the applicant. This is not a case where the applicant lost his employment by reason of misconduct, since he voluntarily left his employment. But it was not an error on the part of the umpire to assert that where a term of employment is the maintenance of a driver's Class A licence, the loss of that licence by the actions of the applicant amounted to loosing his employment by reason of his misconduct. This statement is not contradictory to the decision of this Court in Attorney General of Canada v. Nolet 8 cited in Canada (Attorney General) v. Brissette. 9
In Nolet, the claimant, who had been hired as a school bus driver since January 4, 1989, was incarcerated for a period of around six weeks, during his employment, following accusations of sexual abuses on his daughter during the years 1979 to 1987. He was dismissed on his return to work on the basis that the employer could not retain persons who were not beyond reproach considering the nature of the work. The umpire and this Court held that the Commission and the board of referees had erred in concluding that section 28 of the Act could apply. The umpire 10, Denault J., noted that the facts retained by the employer to dismiss him had no relation with the accomplishment of his work, and had not been committed during the time of his employment. It is in this context that Pratte J.A. confirmed:
We are all of the opinion that the misconduct contemplated in subsection 28(1) of the Unemployment Insurance Act is such as would constitute a breach of a duty that is express or implied in the contract of employment. The umpire was therefore correct to conclude that criminal acts committed by an employee more than a year before he was hired did not constitute misconduct within the meaning of the provision.Accordingly, the application will be dismissed.
The essence of the ruling in Nolet is, therefore, the existence of a causal link between the misconduct and the employment. This is why the misconduct reproached must have occurred at the time of employment.
In Canada (Attorney General) v. Brissette, 11 the respondent was employed as a truck driver. Possession of a valid driver's licence was an essential condition of his employment. Brissette lost his driver's licence for driving while impaired outside working hours. The umpire held that the employee's conduct did not constitute misconduct within the meaning of section 28 of the Act, since misconduct implies a deliberate or voluntary act by an employee in regard to an employer. This Court allowed the Commission's appeal stating that the employee breached an express duty in the employment contract as a result of his wrongful act. Létourneau J.A. said the following:
... There must, first, be a causal relationship between the misconduct and the dismissal. It is not sufficient, in order for the disqualification to come into play, for the misconduct to be a mere excuse or pretext for the dismissal (see Raphaël Fuller, CUB-4503, February 4, 1977, Mahoney J.). It must cause the loss of employment and must be an operative cause. It is not necessary for the purposes of this case to determine whether it must be the only operative cause of the dismissal.
On this point, we would recall that counsel for the respondent contended that the loss of employment was caused by the loss of the driver's licence. In our view, concluding that the loss of employment resulted from the loss of the licence and not from the licence-holder's misconduct amounts to indulging in too narrow an analysis and interpretation of the situation and of subsection 28(1) of the Act. Take, for example, the case of an employee who deliberately and systematically violates the conditions of his or her employment, right in the workplace, with the result that the exasperated employer dismisses the employee. Can it seriously be argued that the employee was dismissed not for misconduct, but merely for failure to comply with the conditions of his or her employment? Clearly, we must examine the cause of the failure to comply with the conditions of the employment. An employee may fail to comply with the conditions of the employment because he or she is ill or incompetent, has no operating licence or is misbehaving.
In addition to the causal relationship, the misconduct must be committed by the employee while he or she was employed by the employer, and must constitute a breach of a duty that is express or implied in the contract of employment (Canada (Attorney General) v. Nolet, F.C.A., A-517-91, March 19, 1992).
He later concluded: 12
In the case at bar, the employee was required, as an essential concrete condition of his employment, to hold a valid driver's licence. By losing it as a result of his wrongful act, he breached an express duty in the contract of employment. This breach was a direct result of his misconduct.
The applicant, in the case at bar, was charged with a drinking and driving offence prior to his employment. He later found work in the trucking industry where possession of a valid driver's licence was an essential condition of his employment. 13 The fact that he could not retain his employment and had to resign following the loss of his licence is certainly a breach of duty which occurred during his employment. This breach was a direct result of his misconduct. To claim that the misconduct occurred prior to the employment and, therefore, is not a cause for disqualification is too mechanical an application of Brissette and Nolet. It fails to appreciate that the timing factor does not stand alone. It is but another facet of the causal link which must exist between the misconduct and the loss of employment.
I would dismiss this application for judicial review.
1 Subsection 28(1) of the Unemployment Insurance Act, R.S.C. 1985, c. U-1:
28.(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.
2 167 N.R. 232 at 233.
3 68 N.R. 154.
4 68 N.R. 154 at 156.
5  2 All E.R.745.
6 68 N.R. 154.
7 Subsection 28(4) of the Unemployment Insurance Act:
28.(4) For the purposes of this section, "just cause" for voluntarily leaving an employment exists where, having regard to all the circumstances, including any of the following circumstances, the claimant had no reasonable alternative to leaving the employment:(a) sexual or other harassment; (b) obligation to accompany a spouse or dependent child to another residence; (c) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act; (d) working conditions that constitute a danger to health or safety; (e) obligation to care for a child or a member of the immediate family; (f) reasonable assurance of another employment in the immediate future; (g) significant modification of terms and conditions respecting wages or salary; (h) excessive overtime work or refusal to pay for overtime work; (i) significant changes in work duties; (j) antagonistic relations between an employee and a supervisor for which the employee is not primarily responsible; (k) practices of an employer that are contrary to law; (l) discrimination with regard to employment because of membership in any association, organization or union of workers; (m) undue pressure by an employer on employees to leave their employment; and (n) such other reasonable circumstances as are prescribed.
8 (19 March 1992), A-517-91 (F.C.A.).
9  1 F.C. 684 at 688.
10 Clément Nolet (26 April 1991), CUB 19706 (Denault J.).
11 168 N.R. 60.
12  1 F.C. 684 at 691.
13  1 F.C. 684 at 688.
I have read the reasons of my colleague, Mr. Justice Marceau, and, with the greatest respect, I have come to the conclusion that I must disagree with his finding that the Umpire, the Commission and the Board of Referees erred in holding that the applicant was not entitled to benefits as he was disqualified under section 28 of the Unemployment Insurance Act., R.S.C. 1985, c. U-1.
In my opinion, in limited circumstances, misconduct occurring before the employment relationship begins can be considered under section 28 of the Act. These limited circumstances exist when the punishment for the misconduct arises during the employment relationship and prevents the employee from being able to fulfil an express condition of his or her employment contract. In coming to this conclusion, I am mindful of the fact that previous decisions have held that the misconduct must take place during the period of employment. 1 However, it is important to note that these decisions did not deal with a fact situation similar to the one currently before this Court. Moreover, I do not read these decisions as precluding misconduct occurring before the employment relationship begins from ever being considered under section 28.
As my colleague, Mr. Justice Marceau states, the facts of this case are simple and straightforward: On 9 July 1993, the applicant was charged with driving while under the influence of alcohol. On 31 May, 1994, after much delay, he was found guilty and his licence and driving privileges were suspended for one year (from 31 May 1994 until 31 May 1995). During the time he was charged with the offence and his being found guilty of the offence, the applicant sought and found employment as a truck driver. From 7 February, 1994 until 14 May, 1994, the applicant was employed as a truck driver by Highland Creek Drivers Limited ("Highland"). He therefore sought a job as a truck driver knowing he faced a charge that might result in the suspension of his licence. He was also aware that a condition of his employment was that at all times he must hold a valid Class A drivers licence.
On 16 May, 1994 the applicant went on medical leave and began to collect Workers' Compensation. He was off work and collecting compensation until 1 June, 1994, at which time he was expected back at work by his employer. On 6 June 1994, however, the applicant informed his employer that he would not be returning to his employment. The applicant explained that he had lost his driver's licence as a result of a criminal offence committed prior to his employment by Highland. The applicant applied for Unemployment Insurance benefits seven days later.
By letter dated 11 July 1994, an agent of Employment and Immigration Canada ("The Commission") informed the applicant that he had been disqualified from receiving unemployment insurance benefits because he had voluntarily left his employment without just cause.
The applicant appealed the decision of the Commission to the Board of Referees. By decision dated 26 August 1994, the Board unanimously dismissed the applicant's appeal, concluding that the applicant had voluntarily left his employment without just cause within the meaning of subsection 28(1) of the Unemployment Insurance Act.
The applicant appealed the decision of the Board of Referees to the Umpire. The Umpire dismissed the applicant's appeal on the basis that the applicant had lost his employment due to his own misconduct and the mere fact that he had quit voluntarily, rather than being fired, would not constitute "just cause". The reasons for his judgment have been reproduced by my colleague.
In coming to the conclusion that the Umpire erred in law, Mr. Justice Marceau found that the misconduct at issue in any case must take place during the employment relationship in order to qualify as a disqualifying measure under section 28 of the Act. In his opinion, if the misconduct occurs in the absence of an employment relationship, regardless of the circumstances, it can not be considered under section 28. He cites both the Brissette, supra and Nolet, supra cases as authority for this proposition. As previously mentioned, contrary to the opinion of my colleague, I do not read these cases as holding that a claimant can never be disqualified from receiving benefits for misconduct which occurred before the employment relationship began. Indeed, in my opinion the ratio of Nolet (which Brissette cites as authority for the above proposition) is that there must be a causal relationship between the misconduct and the loss of employment in order to be disqualified under section 28 and not that misconduct occurring before the employment relationship begins can never be considered under section 28. This becomes evident once the factual context in Nolet is made explicit.
In Nolet the claimant was convicted of sexually assaulting his daughter between 1979 and 1987 (before he was employed as a bus driver). When he was released from prison, he wished to return to work but his employer terminated him, claiming he did not have the necessary integrity to perform the job. The Commission and the Board of Referees disqualified the claimant from obtaining benefits on the basis that he had been terminated for his own misconduct. The Umpire, however, quashed the decision of the Board stating:
In the instant case the actions alleged against the claimant took place between 1979 and 1987, that is, well before he started working for his employer on January 4, 1989. Moreover, the facts alleged against the claimant have nothing to do with the actual performance of his job and were not committed as part thereof...
In short, while the employer may have been justified, in order to maintain its credibility with the clients, in discharging the employee of dubious morals, although this was a question that the Commission did not have to decide, this does not mean, on the other hand, that we are dealing with a case of misconduct within the meaning of section 28 of the Unemployment Insurance Act. 2
The court therefore was stressing the need for there to be a causal nexus between the misconduct and the termination. It recognized that if there were no such nexus, a claimant with a criminal record could never qualify for benefits under the Act, even if his or her loss of employment was unrelated to the criminal offences committed in the past. The case does not say that misconduct related to an event which occurred prior to the employment relationship, the punishment for which occurs during an employment relationship, and which causes the employee to be unable to perform his or her job can never be a cause for disqualification under section 28.
I reach my conclusion that in limited circumstances similar to the facts of this case, misconduct occurring before the employment relationship began can be considered as a disqualifying measure under section 28 because I am aware of the mischief that would result if my colleague's interpretation prevails: the result would be to encourage employees who are charged with reckless driving while employed to quit their jobs because if they were to hold on to their jobs they would not be entitled to unemployment benefits if convicted. However, those employees who immediately quit their jobs but then seek another job in the very same field knowing that, if convicted, they may not be able to fulfil an essential job requirement, will be able to receive unemployment insurance benefits for the sole reason that they quit their job and found another. In my opinion, it is this type of arbitrary distinction that led the court in Nolet to conclude that misconduct occurring after working hours but while in an employment relationship could be considered under section 28. Indeed, I draw support for my conclusion from the following remarks of Letourneau J., speaking on behalf of a unanimous court:
Contrary to the respondent's intention, it is not, in our view, necessary that this misconduct be committed at work, in the workplace or in the course of the employment relationship with the employer...It would be absurd and unrealistic to conclude that there is no loss of the licence unless it occurs when the wrongful act is committed by the employee during working hours.... Finally, what could we say about an employee who is sentenced to serve a six-month term of imprisonment and who is dismissed by his or her employer as a result, other than that the loss of employment resulted from the employee's own misconduct which prevents the employee from meeting a concrete condition of the contract of employment, the performance of services? Here again, it matters little whether or not the crime was committed by the employee against his or her employer or in the course of his or her employment relationship with the employer. 3
In this passage, it is clear that the court recognized how absurd the consequences would be if it were to hold that misconduct arising during working hours should be considered but conduct occurring after working hours should not be considered. The court understood that in either scenario, the penalty is the same: the employee can not continue in the employment relationship. The court therefore felt it would be incongruous to distinguish between the two situations and rejected this argument.
In my opinion, the reasoning of Nolet applies to this case. Parliament could not have intended that section 28 be interpreted in a manner that would encourage an employee to quit his or her job and seek an identical job from another employer so that if convicted of an offence he or she would be entitled to Unemployment Insurance benefits since the misconduct did not arise during the second employment relationship. Indeed, it would be "absurd and unrealistic to conclude" that all misconduct arising before the employment relationship began can not be considered under section 28. As was stated by the court in Brissette: "In the case at bar, the employee was required, as an essential concrete condition of his employment, to hold a valid driver's licence. By losing it as a result of his wrongful act, he breached an express duty in the contract of employment. This breach was a direct result of his misconduct." 4 It therefore follows that the Umpire was correct to hold that the applicant is disqualified under section 28 of the Act from receiving unemployment insurance benefits.
In stating my conclusion, however, I am careful to stress once again the limited nature in which misconduct occurring before the employment relationship begins can be used as a means for disqualification under section 28 of the Act. Misconduct occurring before the employment relationship may only be considered when the punishment for this misconduct impacts on the employment relationship in such a way as to cause the employee to breach an express provision of his or her employment contract. In this case, an express provision of the employment contract was that an employee have and maintain a class A drivers licence. The applicant's licence was suspended for a year as a result of his own misconduct. Thus, it was his own actions that caused him to break an express provision of his employment contract. It is also important to note that the requirement that there be a causal nexus between the misconduct and the loss of employment must still be met which thereby ensures that fact situations like those in Brissette will not be used as a means for disqualification under section 28.
I would therefore dismiss the application for judicial review, and affirm the decision of the Umpire, which up-held the determination by the Board of Referees that the applicant should be disqualified from receiving benefits under the Act. The Umpire did not make any reviewable error which would warrant interference by this Court.
1 See Canada (Procureur general) c. Brissette (1994), 168 N.R. 60; Tanguay et al v Unemployment Insurance Commission et al. (1994), 168 N.R. 155; A.G.C. v Clement Nolet, A-517-91, decision dates March 19, 1992, affirming CUB 19706 not reported.
2 CUB 19706 dated 15 September 1992, per Denault J., affirmed by the Federal Court of Appeal (unreported), A-517-91, 19 March, 1992.
3 Nolet, supra at 66-69.
4 Ibid., at 69.
This application for judicial review brought against a decision of an umpire acting under the authority of the Unemployment Insurance Act, R.S.C. 1985, c. U-1, raises once again a problem of the proper interpretation and application of section 28 of the Act. This is the well-known section that disqualifies a claimant from receiving benefits if he or she has lost his or her employment by reason of misconduct or has left his or her job voluntarily without just cause. 1 It may be surprising that a provision which has given rise to so much litigation over so many years can still present difficulties of basic understanding as to its actual scope. The facts cannot be more simple and the issue they raise more obvious.
The applicant started working as a truck driver for Highland Creek Drivers Limited in February of 1994. In June of 1994, he advised his employer that he could not carry on working as a driver because his driver's licence had just been suspended by a decision of a Court sanctioning, after much delay, an offence he had committed in July of 1993, seven months before he started working for Highland. The question obviously is whether the applicant is to be subject to the disqualification provision of section 28 of the Act.
The Commission ruled that the disqualification applied because the claimant did not have just cause for voluntarily leaving his employment and the Board of Referees upheld the ruling. As for the umpire, he was no less firm. He simply wrote:
The law is well settled where a term of employment is the maintenance of a driver's license the loss of the driver's license by the actions of the Claimant is sufficient to constitute losing his employment by virtue of his own misconduct. The fact that he voluntarily left his employment because of a loss of license can by no stretch of the imagination fit into the term of "just cause" within the meaning of the Act. It was the Appellant's own action, regardless of when the offense occurred, that led to his loss of license. The fact that the suspension itself took place after his employment, in my view, can no way alter the requirements of the Act and clearly he is precluded from benefits by virtue of section 28(1) of the Act.
* * *
The umpire's reaction is, at first blush, quite understandable. It obviously gives effect to the idea that a person should not be paid benefits if the loss of his or her employment is due to circumstances for which he or she can only be blamed. It is an idea, however, that loses strength with reflection and one that this Court, in any event, has always refused to adhere to without some qualifications. The last time that it had occasion to reiterate those qualifications, to which I will arrive at shortly, was in Canada (Procureur général) c. Brissette. 2
I have no difficulty with the finding that section 28 of the Act must be applied in the case of a claimant who becomes unemployed because, after suspension of his or her driver's licence, he or she can no longer satisfy a requirement of the employment. Technically speaking, the case is not one of rejection by the employer, nor is it one of the employee leaving voluntarily. Neither the employer nor the employee had any choice. It is the case of an employee becoming suddenly unable to carry on in his job. However, as Létourneau J.A., speaking for a unanimous Court, said in Brissette, supra, agreeing thereby with comments found in prior decisions, "... concluding that the loss of employment resulted from the loss of the licence and not from the licence-holder's misconduct amounts to indulging in too narrow an analysis and interpretation of the situation and of s. 28(1) of the Act". 3 It is now well settled that while the loss of the licence, the immediate cause of the employment coming to an abrupt end, is not in itself an act of the employee, it came about as a result of actions of the employee, and in the spirit of the provision, it is these actions, if reprehensible, that must be considered.
I also have no difficulty with the position taken by the umpire that it does not matter whether the employer or the employee took the initiative in severing the employment relationship. The employment is terminated by necessity, and if a reprehensible act is to be identified as the real cause of that sudden situation, it is misconduct exclusive of just cause whether you approach it from either of the two branches of subsection 28(1).
Where the umpire erred, and before him the Commission and the Board of Referees, was in giving the idea behind his reaction unlimited scope and in seeking to treat it as a sort of application of the civil law maxim ex turpi causa non oritur actio. 4 Such a rigid application could possibly be more acceptable in a purely social assistance scheme and with less drastic consequences. However, the scheme here is not purely social and the penalty is the loss of all regular benefits.
It is now well established 5 that two conditions are required for the coming into play of section 28: first, the reprehensible conduct, which may be identified as the cause of the loss of employment, must bear some relation to the duties of the employment if committed outside the place of work; and second, in all cases, the reprehensible conduct must have occurred during the period of employment. This last requirement is in keeping with the rationale behind subsection 28(1), which rationale Pratte J.A., speaking for a unanimous Court in Tanguay, supra, had occasion to state clearly:
This section is an important provision in an Act which creates a system of insurance against unemployment, and its language must be interpreted in accordance with the duty that ordinarily applies to any insured, not to deliberately cause the risk to occur. 6If the reprehensible act that renders an employee unable to satisfy the requirements of his employment was committed before the employment contract was entered into, the act cannot be said to be the misconduct of an insured employee by which the employee was increasing the risk of losing his job or was jeopardizing his employment contract.
The applicant, therefore, could not be declared disqualified on the basis of section 28 of the Act, the suspension of his licence being due to an offence committed before the employment on the basis of which he was claiming benefits.
The application, in my view, should only be allowed, the impugned decision of the umpire set aside and the matter referred back to him for a new adjudication quashing the ruling of disqualification taken by the Commission and upheld by the Board of Referees.
1 The first paragraph, which establishes the rules, reads thus:
28.(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.
2 Reported at (1994), 168 N.R. 60.
3 At p. 66.
4 This maxim is defined in Black's Law Dictionary, 5th ed. (H.C. Black, St. Paul Minn: West Publishing Co., 1979), as follows:
"Out of a base [illegal or immoral] consideration, an action does [can] not arise".
5 Apart from Brissette, supra, see Tanguay et al. v. Unemployment Insurance Commission et al. (1994), 168 N.R. 155; A.G.C. v. Clément Nolet, file no A-517-91, decision dated March 19, 1992, affirming CUB 19706, not reported; and in the umpire jurisprudence, Allen, CUB 23199, dated August 26, 1993, and my own decision in Gionet, CUB 4567, dated April 5, 1977.
6 See also the comments of Robertson J.A. in Attorney General of Canada v. McLaughlin, 121 D.L.R. (4th) 48, at 52.2011-01-10