Date: 20011115
Docket: A-516-99
Neutral citation: 2001 FCA 348
CORAM: STRAYER J.A.
SEXTON J.A.
EVANS J.A.
B E T W E E N:
THE ATTORNEY GENERAL OF CANADA
Applicant
-- and --
TAM-HUU NGUYEN
Respondent
Heard at Toronto, Ontario on Thursday, November 8, 2001
JUDGMENT delivered at Ottawa, Ontario on Thursday, November 15, 2001
REASONS FOR JUDGMENT BY: STRAYER J.A.
CONCURRED IN BY: SEXTON J.A.
EVANS J.A.
Date: 20011115
Docket: A-516-99
Neutral citation: 2001 FCA 348
C O R A M: STRAYER J.A.
SEXTON J.A.
EVANS J.A.
B E T W E E N:
THE ATTORNEY GENERAL OF CANADA
Applicant
-- and --
TAM-HUU NGUYEN
Respondent
REASONS FOR JUDGMENT
STRAYER J.A.
[1] This is an application for judicial review of a decision of an Umpire under the Employment Insurance Act.
[2] The respondent was discharged from his position as an "Associate" at Casino Niagara on August 22, 1997. He was subsequently denied benefits under section 30(1) of the Employment Insurance Act on the grounds that he lost his job due to his own misconduct. He appealed that decision to a Board of Referees, where a majority of the Board upheld the Commission's decision. A dissenting member held that the misconduct in question was not severe enough to warrant dismissal, that the respondent should have been given a chance to explain himself, and that at most he should have been reprimanded and offered corrective counselling. On appeal an Umpire set aside the majority decision of the Board on the ground that it was unreasonable in view of the evidence before the Board.
[3] The Umpire seemed to accept the evidence put before the Board which was as follows. The respondent had persistently requested the telephone number of a female fellow "Associate" although she told him that she was married. On August 21, 1997 he gave her a written message containing symbols and drawings which he translated for her as meaning "Guy loves girl, I love you, girl no love guy . . . guy kill girl". This was witnessed by another "Associate" who apparently reported it to the employer. The respondent continued to intimidate the woman in question by stating that he would meet her in the parking lot, which she said she did not want him to do.
[4] There was also evidence that all employees at the Casino were given a book which apparently contained not only a statement of Harassment Policy (Exhibit 12-3,4) but also the Rules of Conduct for Associates of the Casino (Exhibit 12-5). The Umpire appears to have focussed only on the Harassment Policy and seemingly regarded it as definitive as to what is "misconduct" under subsection 30(1) of the Act. He understood that Policy to require a complaint from a victim before repeated unwanted approaches with sexual implications could be the basis for dismissal.
[5] I am of the view that the learned Umpire erred in setting aside the Board's decision as "unreasonable in view of the evidence". To the extent that he was deciding as a matter of law that the behaviour of the respondent here could not amount to misconduct because it did not come within a definition in the Harassment Policy of the Casino, he erred in law. Firstly, it is "misconduct" within the meaning of subsection 30(1) of the Employment Insurance Act which is relevant, not necessarily as defined by the employer's stated policies. Generally it has been held that misconduct under the Act requires behaviour which is incompatible with a continuing employment relationship. (See e.g. AGC v. Brissette, [1994] 1 FC 684). Secondly, the learned Umpire in my view took too narrow a view of the employer's rules on harassment. He pointed only to paragraph 3.1 of the Harassment Policy which identifies as one type of harassment something said or done "of a sexual nature that you do not want or welcome". He took that to mean that there is no harassment unless the victim complains to the employer, an interpretation which the words cannot support. Further he ignored the more general definition of harassment adopted in section 3.0 of which 3.1 is only an example. That definition, drawn from the Ontario Human Rights Code, defines harassment as
engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
This policy as transmitted to all employees certainly did not require an express objection or complaint if the conduct ought reasonably to be known to be unwelcome. Moreover, the actual Rules of Conduct distributed by Casino Niagara to its employees describe as unacceptable conduct "discourteous, inconsiderate or rude behaviour by an Associate toward . . . other Associates" and ". . . intimidating . . . interfering . . . with other Associates."
[6] Thus there was an ample basis in law for the Board to conclude that the behaviour in question was prohibited by the employer. The Rules of Conduct said that such misconduct might "result in Corrective Counselling up to and including separation". This did not, in my view, preclude the employer in law from proceeding directly to separation in the circumstances.
[7] To the extent that the learned Umpire was saying, in whole or in part, that the Board had committed a reviewable error of fact, I must also disagree. An Umpire can only set aside a conclusion based on an erroneous finding of fact of a Board
that it made in a perverse or capricious manner or without regard for the material before it. (Employment Insurance Act s. 115).
Here the Board had evidence before it upon which it could reasonably decide as it did. There was nothing "unreasonable" about its factual conclusions and they cannot be set aside even if the Umpire or this Court might have reached a different conclusion on the same evidence.
[8] The application for judicial review should therefore be allowed, the decision of the Umpire set aside and the matter remitted to the Chief Umpire for reference to an Umpire to confirm the decision of the Board in accordance with these reasons.
(s) "B.L. Strayer"
J.A.
I agree
J. Edgar Sexton J.A.
I agree
John M. Evans J.A.