Date: 20051005
Docket: A-57-05
Citation: 2005 FCA 320
CORAM: DESJARDINS J.A.
EVANS J.A.
BETWEEN:
CATHIE RYAN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Toronto, Ontario, on September 27, 2005.
Judgment delivered at Toronto, Ontario, October 5, 2005.
REASONS FOR JUDGMENT BY: DESJARDINS J.A.
CONCURRED IN BY: EVANS J.A.
SHARLOW J.A.
Date: 20051005
Docket: A-57-05
Citation: 2005 FCA 320
CORAM: DESJARDINS J.A.
BETWEEN:
CATHIE RYAN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
DESJARDINS J.A.
[1] The applicant, a personal support worker in a residence for seniors, was dismissed from her employment with Central Care Corporation on January 27, 2004. The employer said that she had mistreated a resident by handling her roughly and holding a pillow over her head.
[2] She was denied employment insurance benefits by the Canada Employment Insurance Commission (the Commission) by reason of misconduct pursuant to section 29 and 30 of the Employment Insurance Act (S.C. 1996, c. 23). The Board of Referees (the "Board") upheld the decision of the Commission. The Umpire dismissed the appeal having found no reviewable error in the decision of the Board.
[3] The Board of Referees had before it notes taken by an insurance officer following a telephone conversation she had had with a representative of the employer. According to these notes, the employer received an anonymous letter on December 22, 2003, alleging resident abuse by an employee who was later identified as the applicant. The applicant was suspended pending an investigation but was reinstated. On January 27, 2004, a national television program contacted the employer to view a videotape that had been submitted to them. The employer viewed the tape and was satisfied that abuse of a resident was shown and that the applicant was the worker in the video. Although the applicant had no previous history of any wrongdoing nor suspicion of inappropriate actions since she started work, the employer felt, on account of its zero tolerance policy concerning resident abuse, that once an investigation was completed and abuse had been shown, termination was immediate and automatic. The employer did confront the applicant, who explained that she was trying to put a pillow under the resident's head.
[4] The applicant informed the Board that the video was not clear, and that a grievance and a request for arbitration had been filed on her behalf by the union representing her. The outcome of these proceedings was not known at the time of the hearing before the Board and was still not known at the time of the hearing before us. Criminal proceedings were also taken against the applicant, the result of which is not yet known.
[5] The Board noted that the applicant had not provided any details in her defence, nor had she denied involvement. The Board rejected, for lack of verification, what appeared to be a non-verbatim transcript of notes made by a police officer during the criminal investigation of the alleged abuse. The Board also rejected a group of press clippings which, it said, were mainly after the fact (Exhibit 13).
[6] The Board finally said:
After consideration of all the evidence, the Board finds that the claimant was terminated from her employment by the employer because they had been provided with evidence of resident abuse. The Board finds that it is incumbent on the employer to ensure that patients are treated in a humane, dignified fashion. After viewing evidence to the contrary, the employer terminated the claimant for cause. Evidence presented in Exhibit 13, while pertinent to the case, is mainly after the fact. After considerable deliberation, the Board finds that the claimant lost her job by reason of her own misconduct pursuant to Sections 29 and 30 of the Employment Insurance Act.
[7] The Board relied essentially on the evidence of the employer who had viewed the tape. The Board did not refer to the application for employment benefits of the applicant, where she indicated that the company had misread what was on a hidden video tape (Respondent's Application Record, p. 29). The Board did not refer either to the following statement signed by the applicant, which reads thus (Respondent's Application Record, p. 144):
Question: How did you transfer Norma into her chair?
Answer: I put down the bed rail, I lifted her to the side of the bed. I was waiting for Chris to come in to help with the transfer because Norma was agitated. Norma was kicking and pinching. I explained why I had the wheel chair further away, because two of us were going to transfer her. Chris did not come in. I had no choice but to transfer her myself as I already had Norma on the edge of the bed. I put my arms underneath her armpits to transfer her to the wheelchair, as I went to put her into the wheelchair my foot caught the call bell cord (one end attached to wall opposite side of bed, cord runs behind the headboard, call button is attached to the bed rail). She landed harder into the chair than I would have liked, due to the cord being entangled around my foot. I fell with her towards the wheelchair.
Quesion: In August do you remember placing a pillow over Norma's face?
Answer: No, I would never do that.
[8] Misconduct is a serious matter. It is unclear whether the Board appreciated the full extent of the applicant's explanation or whether it gave any consideration at all to the quality of the video, since it neither referred to it in its analysis nor dealt with it in its written reasons.
[9] The conclusion of fact at which the Board arrived, as to what exactly occurred, constitutes, in the circumstances, an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before the Board (paragraph 18.1(4)(d) of the Federal Courts Act R.S. 1985, c. F-7).
[10] The finding made by the Board was therefore patently unreasonable and its decision should have been set aside. The Umpire erred in not intervening pursuant to paragraph 115(2)(c) of the Employment Insurance Act.
[11] For these reasons, this application for judicial review should be allowed with costs, the decision of the Umpire should be set aside and the matter should be referred back to the Chief Umpire or his designate for a redetermination on the basis that the applicant's appeal from the decision of the Board should be allowed and the matter should be returned to the Board for a rehearing by a differently constituted panel.
"Alice Desjardins"
J.A.
"I agree.
K. Sharlow J.A."
"I agree.
John M. Evans J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-57-05
STYLE OF CAUSE: CATHIE RYAN and ATTORNEY GENERAL
OF CANADA
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 27, 2005
REASONS FOR
JUDGMENT BY: DESJARDINS J.A.
CONCURRED IN BY: EVANS J.A.
SHARLOW J.A.
DATED: OCTOBER 5, 2005
APPEARANCES BY:
Christopher J. Ellis FOR THE APPLICANT
Sharon McGovern FOR THE RESPONDENT
SOLICITORS OF RECORD:
BLANEY MCMURTRY LLP
Toronto, Ontario FOR THE APPLICANT
John H. Sims Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT