[1] This decision whereby the Umpire found that, for the purpose of obtaining regular unemployment benefits, the respondent did not lose his employment by reason of his misconduct cannot be sustained. The respondent indulged in the consumption of crack-cocaine which resulted in his failure to report to work and to perform the services required from him. Hence his dismissal from work.

[2] In Canada (Attorney General) v. Turgeon, [1999] F.C.J. No. 1861, this Court held that "the mere fact of having an alcohol problem is not in itself sufficient to make the exclusion contained in s. 28(1) inapplicable to a claimant". This is certainly just as true a finding for the voluntary or reckless consumption of drugs, especially illegal drugs.

[3] There is a long line of authorities stating that where an employee, through his own actions amounting to misconduct, can no longer perform the services required from him under the employment contract and as a result loses his employment, that employee "cannot force others to bear the burden of his unemployment, no more than someone who leaves the employment voluntarily: see Canada (A.G.) v. Brissette, [1994] 1 F.C. 684; Attorney General of Canada v. Lavallée, 2003 FCA 255, at paragraph 10, followed in Attorney General of Canada v. Borden, 2004 FCA 176, a decision rendered on April 28, 2004.

[4] It was an error of law for the Umpire to conclude that the respondent's absence from work was not wilful because of his drug addiction. The consumption of drugs by the respondent, even though attractive or irresistible, was voluntary in the sense that his acts were conscious and that he was aware of the effects of that consumption and the consequences which could or would result. He did declare that he could "not focus on anything that matters" when he was taking the drug: see the Applicant's Record, page 51. The respondent's actions that day, i.e. the use of illegal drugs, were sufficiently serious and of such scope that he could normally foresee that it would be likely to result in his dismissal: see Canada (Attorney General) v. Langlois, [1996] F.C.J. No. 241.

[5] It would be fundamentally altering the nature and principles of the employment insurance scheme and Act if employees, who lose their employment as a result of abusing impairing substances such as alcohol or drugs, could be entitled to receive regular unemployment benefits. Section 21 of the Employment Insurance Act and 40 of the Employment Insurance Regulations already provide for sickness benefits and the respondent has been a recipient of such benefits.

[6] The Board of referees and the Umpire clearly misapprehended as well as misapplied the law to the facts of this case. The application for judicial review will be allowed without costs, the decision of the Umpire will be set aside and the matter will be referred back to the Chief Umpire, or the Umpire that he designates, for a new determination on the basis that the respondent lost his employment by reason of his misconduct.

"Gilles Létourneau"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-255-03

STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA v. DALE C. WASYLKA

PLACE OF HEARING: Winnipeg, Manitoba

DATE OF HEARING: June 1, 2004

CORAM: DÉCARY J.A.

LÉTOURNEAU J.A.

PELLETIER J.A.

REASONS FOR JUDGMENT

OF THE COURT BY: LÉTOURNEAU J.A.

DATED: June 1, 2004

APPEARANCES:

John C. O'Callaghan

Department of Justice

Edmonton, Alberta

FOR THE APPLICANT

Beverly Froese

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Morris Rosenberg

Deputy Attorney General of Canada

FOR THE APPLICANT

Public Interest Law Centre

Winnipeg, Manitoba

FOR THE RESPONDENT

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