JUDGMENT OF THE FEDERAL COURT OF APPEAL
December 8, 1993
ATTORNEY GENERAL OF CANADA,
- and -
Hearing held at Montreal on Wednesday, December 8, 1993.
REASONS FOR JUDGEMENT
(Delivered from the bench at Montreal
on Wednesday, December 8, 1993)
1. Nature of the proceedings and issue
This is an application for judicial review of a decision of an umpire acting in that capacity under section 77 et seq. of the Unemployment Insurance Act, R.S.C. 1985, c. U-1.
The issue is whether an employee's breach of a duty under his or her contract of employment, which occurred while the employee was employed by his or her employer, constitutes misconduct within the meaning of subsection 28(1) of the Act 1 even if this breach took place outside working hours. More precisely, in the case at bar, the issue is whether the respondent, who failed a breathalyser test that he took on the weekend, while he was on leave, and who accordingly lost his driver's licence and his job as a truck driver with a transport company, can be disqualified from receiving unemployment insurance benefits because he lost his employment by reason of his own misconduct.
2. Arguments of the parties
Counsel for the respondent contended that the employer dismissed the employee because he had lost his driver's licence, that something done outside working hours cannot constitute misconduct and that misconduct requires "a mental element of wilfulness or conduct that is so reckless as to approach wilfulness". He based this argument on the decision of this Court in Canada (Attorney General) v. Tucker,  2 F.C. 329, at p. 342 (F.C.A.). He also argued that the Commission had the burden of proving that what the respondent did constituted misconduct within the meaning of the Act, and that the Commission failed in its attempt to prove this. He concluded that the umpire did not commit any error in law and did not make any arbitrary or unreasonable finding of fact which would justify this Court in intervening.
Counsel for the applicant submitted that the umpire erred in his interpretation of the expression "misconduct" which appears in section 28 of the Act, and that in the case at bar the respondent's breach "of a duty that is express or implied in the contract of employment" (Attorney General of Canada v. Nolet (F.C.A. no. A-517-91, March 19, 1992)), that is, the requirement that he hold a valid driver's licence, constitutes misconduct within the meaning of the Act. He added that the fact that what the respondent did was done outside working hours in no way altered the fact that it was misconduct, if it constitutes a breach of a duty that is express or implied in the contract of employment.
3. The decision of the umpire
It was clear in the umpire's mind that the Commission failed in its attempt to prove to the board of referees that what the respondent did constituted misconduct within the meaning of the Act. There is also no doubt that the umpire concluded that what the respondent did, that is, driving a motor vehicle outside working hours with a blood alcohol level that exceeded the allowable limit, did not constitute misconduct within the meaning of the Act. I would simply cite this passage from the decision which appears at page 28 of the appeal book:
In the case before us, the Commission has manifestly failed to provide such proof (misconduct justifying disqualification from receiving benefits) to the Board of Referees ... . Moreover, I think that the concept of misconduct implies a deliberate or voluntary act by an employee in regard to his employer or in his working relationship with his employer. The mere occurrence of an external fact that places the employment in jeopardy or justifies dismissal does not in itself constitute a form of misconduct.
4. Analysis of the decision of the Umpire and of the parties' arguments
Before embarking on an analysis of the legal issues raised in this case, it is important to recall an uncontested fact which is of primary importance in resolving this matter: the respondent was employed as a truck driver and possession of a valid driver's licence was an essential condition of his employment.
It is true, as counsel for the respondent contends, and as it was expressed in Tucker (supra), that in order for the conduct in question to constitute misconduct within the meaning of section 28 of the Act, it must be wilful or deliberate or so reckless as to approach wilfulness. The assertion made in Tucker, is not, however, as absolute as counsel contends, particularly when viewed both in the context of the actual facts of the case and in the context in which it appears in the judgment: it comes at the end of and summarizes a discussion of the issue in which considerably more nuance is apparent. This may be seen in the following passage, which precedes that assertion, at page 341:
"In the case of subsection 41(1) of the 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 Law Dictionary with its emphasis on "wilful or wanton disregard of employer's interest." There are the modifying personal pronouns "his own" before misconduct, which imply responsibility and so intentionality or recklessness. There is the parallelism with requirement of "voluntarily" leaving his employment without juste 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 benefit."
In any event, it is our opinion that impaired driving, or driving with a blood alcohol level that exceeds the allowable legal limit, is conduct such as was described in Tucker. The decision to drive is a deliberate act. The decision to drive after drinking alcohol is also deliberate. The decision to drive in these circumstances, knowing that, even without wishing to, one may be in violation of the provisions of the law and the Criminal Code, is also deliberate or is so reckless as to approach wilfulness. As our colleague Pratte J.A. stated in Tanguay et al. v. Canada Employment and Immigration Commission (F.C.A. no. A-1458-84, at p. 5), in respect of subsection 28(1) (then 41(1)):
This subsection 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.
The respondent was risking the loss of his driver's licence and thus his job by driving after consuming a quantity of alcohol that exceeded the allowable limit: he knowingly and deliberately caused the risk to occur.
Moreover, we have no hesitation in concluding that what he did, which was to commit a summary conviction or indictable offence and resulted in a conviction under the Criminal Code, is misconduct within the meaning of section 28(1) of the Act. The misconduct referred to in that section may manifest itself in a violation of the law, of a regulation or of an ethical rule, and may mean that an essential condition of the employment ceases to be met, resulting in dismissal. Such a condition may be express or implied and may relate to a concrete or more abstract requirement.
For example, a police officer or bank teller who is convicted of theft and who is therefore dismissed loses his or her employment by reason or his or her misconduct because he or she now can no longer meet the condition of integrity that is imposed on someone in a position of trust. Such a person no longer meets the standards of conduct that the employer is entitled to demand of its employees in such cases (see Tucker, supra, at p. 339). Similarly, a pilot on board an airplane or a ship who, through his or her misconduct, loses his or her operating licence no longer meets the concrete condition imposed by law or by the employer for such employment.
This being said, the fact that what is done might constitute misconduct under subsection 28(1) does not mean, however, that it necessarily results in disqualification from receiving unemployment insurance benefits. 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, 1976, 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 (Attorney General of Canada v. Nolet (F.C.A. no. A-517-91, March 19, 1992)).
Contrary to the respondent's contention, 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. In the example given above of the police officer or teller who is convicted of theft, it would be absurd to require, in order to find that the condition of integrity imposed by the employer and by the job has been violated, that the victim of the theft be the employer itself. The same is true of a concrete condition of the employment such as the need to hold an operating licence. 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 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.
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.
In conclusion, we believe that the umpire erred in respect of the interpretation and application of subsection 28(1) of the Act and the concept of misconduct set out in that subsection. Moreover, we are of the opinion that the employee's misconduct has been proved unequivocally. Accordingly, this application for judicial review will be allowed, the decision of the umpire will be set aside and the case will be returned to him for decision, on the basis that the respondent had lost his employment by reason of his own misconduct.
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.2011-01-10