Date: 20050302
Docket: A-553-03
Citation: 2005 FCA 87
CORAM: DESJARDINS J.A.
LÉTOURNEAUJ.A.
PELLETIERJ.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
JEAN-MAURICE BELLAVANCE
Respondent
Hearing held at Québec, Quebec, on March 1 and 2, 2005.
Judgment delivered from the bench at Québec, Quebec, on March 2, 2005.
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
Date: 20050302
Docket: A-553-03
Citation: 2005 FCA 87
CORAM: DESJARDINS J.A.
LÉTOURNEAUJ.A.
PELLETIERJ.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
JEAN-MAURICE BELLAVANCE
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Québec, Quebec, on March 2, 2005)
LÉTOURNEAU J.A.
[1] The respondent was working for Human Resources Development Canada (HRDC) when he was dismissed. He held a position of insurance officer, level II, there.
[2] His dismissal occurred after he placed himself in a conflict of interest situation. The respondent was the owner of a corner-store grocery, a corner store and properties containing residential units. According to the employer, he had used his position as an insurance officer to give preferential treatment to some of his former employees and certain members of his family. Again according to the employer, he had also intervened personally in the processing of cases of unemployment insurance claims made by some of his employees.
[3] The respondent was familiar with the contents of the HRDC Code of Conduct, the code of conduct for the Public Service and the directives issued by his employer, which he contravened. In fact, he signed a certificate in which he recognized that he had read the Public Service Code of Conduct. He indicated there that he had property referred to in paragraph 22(b) of the Code, but that his possession of this property did not pose any real or potential risk of a conflict of interest with respect to his official duties: see the applicant's record, page 27. The arbitrator responsible for considering the grievance filed by the respondent against his dismissal confirmed that the respondent was in fact in a conflict of interest when he used, for his own benefit, information obtained in the performance of his duties, which was not accessible to the public: ibidem, arbitrator's decision, page 55.
[4] Further, the grievance arbitrator ruled that the respondent had not disclosed the nature of his activities to his employer, as he was required to do under the Code of Conduct: ibidem, page 56.
[5] Finally, the grievance arbitrator found that the actions taken were serious and had irreparably compromised the relationship of trust with the employer. The lack of co-operation shown by the respondent, who was asked for explanations by the employer, merely exacerbated the situation and made it impossible for him to be reinstated in his position. We mention these findings of the grievance arbitrator merely to highlight the evidence of the respondent's misconduct and the seriousness of this misconduct. Because the issue before the board of referees and the Umpire, as this Court pointed out in Canada (Attorney General) v. Marion, [2002] F.C.A. No. 711, and Canada (Attorney General) v. Secours, [1995] F.C.J. No. 210, was not whether an employer had a valid ground for dismissal or whether the severity of the penalty was excessive, but rather whether the actions taken by the respondent constituted misconduct within the meaning of the Employment Insurance Act, S.C. 1996, c. 23, subsection 30(1) (the Act).
[6] There is no doubt that the serious faults committed by the respondent constituted misconduct within the meaning of the Act. An employee must act in a way that is compatible "with the due or faithful discharge of his duty": see B.C.C.I. v. Boisvert, [1986] 2 F.C. 431, at pages 456-457 (F.C.A.). A serious and conscious if not deliberate violation of the HRDC Code of Conduct, as in this case, indicates reprehensible conduct that is incompatible with the due or faithful discharge of the duties that the respondent was required to perform.
[7] In our judgment, the board of referees made a first error in restricting its analysis to only one of the faults alleged against the respondent whereas more than one incident provided the reason for the dismissal. It ignored relevant evidence in the record, including evidence of serious breaches of the Code of Conduct and that concerning the breach of the relationships of trust with the employer. It was entitled to discard this evidence for valid reasons after weighing and assessing it but it could not ignore it, especially when it lay at the very core of the dispute concerning the concept of misconduct: see Maki v. Canada Employment Insurance Commission, A-737-97, June 11, 1998 (F.C.A.); Boucher v. Attorney General of Canada, A-727-96, October 17, 1996 (F.C.A.). It was undoubtedly this error that led the board to make a second one, that of finding that the action was not deliberate in nature whereas the repetition of contraventions of the same kind tends to contradict such a finding. In Canada (Attorney General) v. Neveu, [2004] F.C.A. No. 1782, 2004 FCA 362, which involved unpaid fines, this Court found that the intention of a respondent could be inferred more easily from an accumulation of unpaid fines than from a single isolated incident. Repeating this conclusion from the third paragraph of its decision in paragraph 19, the Court added:
The accumulation of unpaid fines, as in Canada (Attorney General) v. Lavallée, [2003] A.C.F. No. 913, 2003 FCA 255, serves to highlight more readily and more clearly the deliberate, reckless or negligent character of the disobedience to the legal order of payment or of the failure to resort to the available measures to comply therewith, or both.
Be that as it may, the actions merely need to be conscious, and on this point there can be no doubt in this case.
[8] Finally, and this is the third error that may be alleged, the board of referees erred when it said that, in its judgment, this was merely a "breach of duty that is express or implied in the contract of employment" and that this breach was not "of such scope that its author could normally foresee that it would be likely to result in his dismissal": applicant's record, decision of board of referees, page 104. The seriousness of the contraventions was such that a reasonable person could not have failed to foresee that they might have resulted in his dismissal.
[9] When confronted with these errors, the Umpire should have intervened. Rather, he stated that it was "purely an issue of credibility", whereas the concept of misconduct within the meaning of the Act involved a question of law: ibidem, decision of the Umpire, page 6. He also gave the concept of misconduct an overly restrictive definition in finding that the alleged act must have been wilful or or at least so reckless as to approach wilfulness. This Court ruled in Secours, supra, that the breach must have been performed or the omission made wilfully, that is to say consciously, deliberately or intentionally.
[10] On appeal from the Commission's decision, the respondent based his submissions solely on the report of the grievance arbitrator and relied on its content: ibidem, page 79. He cannot therefore contest the unfavourable findings concerning the serious breaches of the Code of Conduct. In the circumstances, the board of referees could not ignore or set aside these findings established before it.
[11] If, as it should have done, the board of referees had considered the evidence concerning the conflict of interests and the serious breaches of the Code of Conduct, it could not have done otherwise than to find misconduct within the meaning of the Act. If it had not ignored the irreparable breach of the relationship of trust with the employer as a result of the respondent's actions, it would have seen that the loss of his employment was the result of misconduct.
[12] For these reasons, the application for judicial review will be granted with costs, the decision of the Umpire quashed and the case will be referred back to the Chief Umpire or a person to be designated by him for a redetermination of this matter on the basis that the appeal of the Commission against the decision of the board of referees must be allowed, that the decision of the board of referees must be quashed and the respondent must be disqualified from receiving benefits for the loss of his employment by reason of his misconduct within the meaning of section 30 of the Act.
"Gilles Létourneau"
J.A.
Certified true translation
K.A. Harvey
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-553-03
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v.
JEAN-MAURICE BELLAVANCE
PLACE OF HEARING: QUÉBEC, QUEBEC
DATE OF HEARING: March 1 and 2, 2005
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
PELLETIER J.A.
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
DATED: March 2, 2005
APPEARANCES:
Carole Bureau FOR THE APPLICANT
Denis Tremblay FOR THE RESPONDENT
SOLICITORS OF RECORD:
Department of Justice Canada FOR THE APPLICANT
Montreal, Quebec
Tremblay & Tremblay FOR THE RESPONDENT
Matane, Quebec