JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
February 1, 1994
Docket:
A-1598-92
Umpire's Decision:
CUB 22055
CORAM:
THE HONOURABLE MR. JUSTICE MARCEAU
THE HONOURABLE MR. JUSTICE STONE
THE HONOURABLE MR. JUSTICE DESJARDINS
BETWEEN:
ATTORNEY GENERAL OF CANADA,
applicant,
- and -
DAVID EASSON,
respondent.
REASONS FOR JUDGMENT OF THE COURT
MARCEAU, J.A.:
This application for judicial review, brought against a decision of an Umpire acting pursuant to the provisions of the Unemployment Insurance Act (the Act), raises a legal issue which is quite narrow, but may have some importance as it goes to the nature and extent of the role of a Board of Referees under the Act. The factual context in which the issue arises may be explained briefly.
Shortly after becoming unemployed, the respondent filed an application for unemployment benefits in which he indicated that he was no longer working because he had quit his employment. The record of Employment submitted by his employer mentioned otherwise: it said that the respondent had been dismissed, after repeated warnings, for being continually late. The Commission initiated an enquiry to clarify the facts and eventually notified the respondent that he was disqualified from receiving benefits for a period of 10 weeks, on the ground that he had lost his employment by reason of his own misconduct, the whole pursuant to section 28 of the Act, the first paragraph of which, it will be recalled, 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.
The Board of Referees before whom the respondent brought his case came to the view that the respondent had not lost his job by reason of his own misconduct, but rather that he had left it voluntarily, albeit without just cause, whereupon it reduced the period of disqualification from 10 to 8 weeks, alleging extenuating circumstances.
The respondent referred the matter to an Umpire who granted the appeal on the basis of short reasons, the meaningful part or which reads as follows:
It is evident from the foregoing that the Board found that there was no misconduct which was the only basis of the disqualification and indeed the only ground upon which the claimant's appeal was founded. The Board of Referees ought to have concluded its enquiry at that point and granted the claimant's appeal.
In CUB 13453, I stated that the notions of "misconduct" and "voluntarily leaving without just cause" are two distinct notions and are treated as such under the Act. When the Commission has chosen to found the disqualification on one of these grounds the Board of Referees cannot substitute its own opinion, its jurisdiction on appeal is to determine whether that ground is well founded.
In continuing its enquiry into other possible grounds for disqualification, the Board of Referees clearly exceeded its jurisdiction. This of course is sufficient reason, pursuant to section 80(a), to set aside the Board's decision. The claimant's appeal must therefore be granted.
It is this decision of the Umpire which is now before the Court for review and, with respect, I think it is a wrong decision which cannot be allowed to stand.
The notions of "dismissal for misconduct" and "voluntarily leaving without just cause" may be two distinct abstract notions, but they are dealt with together in sections 28 and 30 of the Act - which is quite rational since they both refer to situations where the loss of employment is the result of the deliberate action or actions on the part of the employee - and they are sanctioned similarly by special disqualification, the purpose of which was clearly defined by this Court a long time ago in these terms:
These are provisions in a statute the object of which is to establish a scheme of providing unemployment insurance for insured persons who through no fault of their own lose their employment. It is not intended to benefit those who elect not to be employed or who lose their employment by their own actions. In this context the meaning of s. 41(1) [now 28(1)] appears to be obvious. The expressions used are not technical and should not be approached as if they were technical terms. The subsection says, and it means, that persons who leave their employment without just cause and those who lose their employment by reason of their own misconduct are disqualified. 1
It is not only for logical reasons that the two notions have been linked and dealt with together by Parliament; it is also, it seems to me, for very practical reasons. There are many instances in which, as a matter of fact or at least because of contradictory evidence, it is unclear whether unemployment is attributable to a claimant's own misconduct or because the claimant voluntarily left his or her employment 2. By uniting the two notions for the purpose of sanction, the Act makes it clear that the difference between the two situations will have to be taken into consideration only for the exercise of discretion in determining the sanction within the limits established by the legislation.
Legally speaking, the subject matter of the appeal before the Board of Referees was a disqualification under section 28. By interpreting the facts in a slightly different manner so as to conclude that the case was one of quitting without cause rather than one of being fired, the Board did not stray from the subject matter it was called upon to consider. The principle that the Board of Referee's jurisdiction is limited to dealing with the decision that the Commission has made, once again confirmed by this Court in Michael Hamilton v. A.G.C. (1989), 91 N.R. 144, was respected.
The application will therefore be granted, the decision of the Umpire be set aside and the matter referred back to him for consideration in accordance with these reasons.
"Louis Marceau"
Judge