[1] We believe that this application to review and set aside a decision of an Umpire, rendered under the Employment Insurance Act, 1996, ch. 23 (Act), should be granted.

[2] The Umpire was of the view that the defendant did not leave voluntarily his employment upon being incarcerated for two years following a sentencing hearing at which the defendant did not expect a prison sentence of that length. The Umpire also gave substantial weight to the defendant's belief that he would be back to work soon, much sooner than he could eventually do. On the basis of these two considerations, he concluded that the defendant should not be disqualified from benefits pursuant to sections 29 and 30 of the Act upon release from prison.

[3] The defendant's belief that he would be incarcerated for a shorter period than he actually was is an irrelevant consideration in determining whether he lost his employment by reason of misconduct or whether he left it voluntarily without just cause. As Marceau J.A., dissenting on a different issue, said in Smith v. Attorney General of Canada, A-875-96, September 11, 1997, at page 9:

Technically speaking, the case is not one of rejection by the employer, nor is it one of the employee leaving voluntarily. Neither the employer nor the employee had any choice. It is a case of an employee becoming suddenly unable to carry on in his job...

[...]

I also have no difficulty with the position taken by the umpire that it does not matter whether the employer or the employee took the initiative in severing the employment relationship. The employment is terminated by necessity, and if a reprehensible act is to be identified as the real cause of that sudden situation, it is misconduct exclusive of just cause whether you approach it from either of the two branches of subsection 28(1). [Now 30(1).]

We agree with this statement of our former colleague.

[4] The fact is that the employment relationship was terminated by the defendant's imprisonment because he was no longer in a position to fulfill an essential condition of his employment contract. As the Supreme Court of Canada ruled in Québec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc., 2003 S.C.C. 68, at paragraphs 32 and 33, where an employee who cannot work because he is incarcerated is dismissed, "the dismissal arises out of the fact that the employee is not available, which is itself an inescapable consequence of the deprivation of liberty lawfully imposed on an employee who has committed a prohibited act... Every incarcerated offender must suffer the consequences that result from being imprisoned, namely loss of employment for unavailability". In this case, the employer declared that the defendant failed to show up for work and that, after his release from prison, no decision had been made about rehiring him: see Applicant's Record, page 39. It is obvious from this statement that the employer considered the employment contract to be terminated.

[5] This Court in Canada (A.G.) v. Brissette, [1994] 1 F.C. 684, later reasserted in Attorney General of Canada v. Lavallée, 2003 F.C.A. 255, at paragraph 10, concluded that where an employee, through his own actions, 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".

[6] In Attorney General of Canada v. Easson, A-1598-92, February 1, 1994, this Court made it clear that "dismissal for misconduct" and "voluntarily leaving without just cause" are two notions rationally linked together because they both refer to situations where loss of employment results from a deliberate action of the employee. The Court went on to add that the two notions have also been linked for very practical reasons: it is often unclear from the contradictory evidence, especially for the Commission, whether the unemployment results from the employee's own misconduct or from the employee's decision to leave. In the end, since the legal issue is a disqualification under subsection 30(1) of the Act, the finding of the Board or the Umpire can be

based on any of the two grounds for disqualification as long as it is supported by the evidence. There is no prejudice to a claimant in so doing because the claimant knows that what is sought is a disqualification from benefits and he is the one who knows the facts that led to the seeking of the disqualification order.

[7] In conclusion, the Umpire was inappropriately influenced by an irrelevant consideration, i.e. the defendant's belief that his sentence would not be one of imprisonment or that it would be for a short term. He misunderstood the relationship between the two grounds for disqualification in section 30 and, as a result, he misconstrued the law and misapplied it to the facts of the case. He also ignored the jurisprudence of this Court.

[8] For these reasons, the application for judicial review will be allowed, the decision of the Umpire will be set aside and the matter will be referred back to the Chief Umpire, or to his designate, for a re-determination on the basis that the defendant lost his employment because of his own misconduct.

"Gilles Létourneau"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-338-03

STYLE OF CAUSE: Attorney General of Canada v. Donald Borden

PLACE OF HEARING: Halifax, Nova Scotia

DATE OF HEARING: April 28, 2004

CORAM: STONE J.A.

LÉTOURNEAU J.A.

EVANS J.A.

REASONS FOR JUDGMENT

OF THE COURT BY: LÉTOURNEAU J.A.

DATED: April 28, 2004

APPEARANCES:

Sandra Doucette

FOR THE APPLICANT

No one appearing

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Deputy Attorney General of Canada

Halifax, NS

FOR THE APPLICANT

93 Principale Street

Memramcook, NB

FOR THE RESPONDENT

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