Date: 20051019
Docket: A-538-04
Citation: 2005 FCA 339
CORAM: DÉCARYJ.A.
LÉTOURNEAUJ.A.
NOËLJ.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
BERNARD RICHARD
Respondent
Hearing held at Québec, Quebec, on October 19, 2005.
Judgment delivered from the bench at Québec, Quebec, on October 19, 2005.
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
Date: 20051019
Docket: A-538-04
Citation: 2005 FCA 339
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
BERNARD RICHARD
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Québec, on October 19, 2005)
LÉTOURNEAU J.A.
[1] We are of the opinion that this application for judicial review must be allowed and the decision by the Umpire set aside.
[2] The respondent lost his employment as a result of repeated absenteeism related to problems with alcohol. This absenteeism was admonished in notices of suspension informing him, at the same time, that the failure to take appropriate corrective action would eventually lead to dismissal.
[3] During the period from December 8, 2001 to February 5, 2002, the respondent was suspended from work on four occasions. On February 19, 2002, he once again failed to report to work without a valid excuse, thereby failing to provide the services required under his employment contract.
[4] The respondent disregarded the many warnings received. According to the evidence in the record (see for example the notice of suspension dated February 21, 2002, applicant's record, exhibit number 6-1, page 24), on more than one occasion he refused the help that his employer tried to extend to him through its employee assistance program.
[5] Under the circumstances, the respondent could not have been unaware that the breach of his obligations under his employment contract was of such scope that it was normally foreseeable that it would be likely to result in his dismissal: see Attorney General of Canada v. Langlois and Attorney General of Canada v. Edward [1996] S.C.J. No. 241, at paragraph 4.
[6] In this case, the respondent's loss of employment was the result of his misconduct and the community need not bear the consequences of that by paying him employment insurance benefits, as he is requesting.
[7] The Board of Referees was mistaken with regard to the notion of misconduct as defined by the Employment Insurance Act, S.C. 1996, c. 23. The Umpire was required to intervene to correct the error.
[8] Moreover, contrary to what the Umpire suggests at page 4 of his reasons, this Court did not decide in Canada (Attorney General) v. Turgeon [1999] 254 N.R. 314 that alcoholism could be raised to justify misconduct as defined by the Act.
[9] For these reasons, the application for judicial review will be allowed, without costs under the circumstances given that it was not challenged by the respondent and given the applicant's expressed waiver. The decision by the Umpire will be set aside and the matter will be referred to the Chief Umpire or to an Umpire designated by him for redetermination on the basis that the respondent lost his employment because of his misconduct.
"Gilles Létourneau"
J.A.
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. BERNARD RICHARD
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: October 19, 2005
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
REASONS FOR JUDGMENT OF THE COURT: LÉTOURNEAU J.A.
DELIVERED FROM THE BENCH BY: LÉTOURNEAU J.A.
APPEARANCES:
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FOR THE APPLICANT
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SOLICITORS OF RECORD:
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Montréal, Quebec
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FOR THE APPLICANT
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