Date: 20041026
Docket: A-72-04
Citation: 2004 FCA 362
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
JOËL NEVEU
Respondent
Hearing held at Montréal, Quebec, October 21, 2004.
Judgment delivered at Ottawa, Ontario, October 26, 2004.
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
CONCURRING: DÉCARY J.A.
NADON J.A.
Date: 20041026
Docket: A-72-04
Citation: 2004 FCA 362
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
JOËL NEVEU
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1] Did the respondent lose his job as a result of his misconduct, so that the Commission was justified in disqualifying him from unemployment benefits pursuant to subsection 30(1) of the Employment Insurance Act, S.C. 1996, c. 23 (the Act)? The Board of Referees (the Board) and the Umpire ruled against the Commission. Whence this application for judicial review filed by the Attorney General of Canada.
Facts
[2] The respondent represented himself at the hearings before the Board and the Umpire. However, before us he was assisted by counsel. I mention this because, in many respects, the record suffers from certain gaps in the sequence of events and in evidence or information. From what is indicated by the record, the circumstances surrounding the loss of employment are as follows.
[3] The respondent was fined $790 for failing to spread a protective tarpaulin over his load of ore. There seems to have been a dispute in this regard since it is not clearly apparent in the record whether this $790 is the result of a single offence or rather the accumulation of a number of offences for which no payment had been received. Whatever the case, whether it is one or the other, the problem, and the solution, remain the same for all intents and purposes. As I will mention later, the only significant difference is in the evidence of a defendant's intention, which may be inferred more readily from an accumulation of unpaid fines than from a single isolated incident. For the purposes of this analysis, I will assume that the $790 results from a single offence, as appears to have been understood and accepted by the Board and the Umpire.
[4] The respondent explained to the Board, on his appeal from the Commission's decision, that his failure to install the tarpaulin resulted from an oversight owing to the fact that he had to remove some ore from his truck because it was overloaded.
[5] Following this offence, the respondent failed to pay the fine, which resulted in a withdrawal of his driver's licence and his inability to fulfill the main condition associated with his employment, possession of a licence to drive a truck.
Board's decision
[6] Before the Board, the respondent cited his lack of financial resources as an explanation of his failure to pay the fine. The evidence indicated as well that the respondent could obtain his licence again once the fine was paid, and that as soon as this was done his employer was prepared to use his services.
[7] The Board found that the respondent had lost his job through his own wrongful act, but that the alleged wrongful act did not constitute misconduct within the meaning of the Act. In its view, the wrongful act, which it characterized as unintentional and not deliberate, was the respondent's omission by inadvertence to replace the tarpaulin on his load. The Board therefore allowed the respondent's appeal and overruled the Commission's decision.
Umpire's decision
[8] The Commission appealed this decision of the Board to an Umpire.
[9] The Umpire upheld the Board's decision, saying he agreed with the notion of wrongful act cited by the Board but adding that the wrongful act at the origin of the loss of licence resulted more from the respondent's financial situation than it did from the failure to extend a tarpaulin over the load, which had led to the offence and was its essential element. This conclusion emerges from the following extract, which appears at page 4 of his decision:
In this case, the Board found that the claimant had not committed an act that constituted misconduct because the required element of willfulness or carelessness was absent. I agree and would add that the claimant lost his driver's licence as a result of his financial situation, rather than of the act that constituted the violation. The claimant cannot be said to have lost his licence as a result of his wrongful act. The employer in no way held the act in question against the claimant and was willing to rehire the claimant as soon as he was again in a position to drive.
[Emphasis added]
Analysis of the decision of the Umpire and the Board
1. Misconduct resulting from disobedience to a lawful order for payment
[10] The decisions of both the Board and the Umpire reflect an incorrect legal characterization of the events and the facts that occurred and a mistaken and confused understanding of the notion of misconduct under the Act.
[11] The act in factual terms and the wrongful act in legal terms that resulted in the respondent's loss of licence are not those identified by the Board - that is, the failure to put a tarpaulin over the load - but rather the respondent's omission or failure, on the facts, to pay the fine resulting from his offence. It is the latter that is the operational cause of the withdrawal of the licence, and not the offence as such. It is the latter as well that the Board ought to have analyzed in order to determine whether it constituted misconduct within the meaning of the Act.
[12] Legally speaking, the situation here is distinguishable, for example, from the situation in which a person loses his driver's licence because he or she was driving while drunk. In such a case, the loss of licence results from the offence: the loss is the legal penalty. In the case at bar, the withdrawal of the licence is the legal penalty for the omission, on the facts, to pay the fine. So, in the first case, the loss of licence is a penalty resulting from the offence, while in the second case the withdrawal of the licence is a measure to enforce judgments and recover moneys owing. How then should this de facto failure to pay the fine be characterized legally?
[13] The respondent's failure to pay the fine is, in legal terms, disobedience to a lawful order to pay issued by the Court pursuant to the Quebec Code of Penal Procedure, R.S.Q., c. C-25.1 (the Code), which applies with respect to proceedings in view of imposing a penal sanction for an offence under any Act, except proceedings brought before a disciplinary body: see article 1 of the Code. It is this disobedience, the material element of which is the failure to pay as required, which constitutes misconduct within the meaning of the Act.
[14] For example, in Canada (Attorney General) v. Churchi, 2003 FCA 456, the respondent had neglected to make his court order-imposed child support payments, as a result of which his driver's licence was suspended and he lost his job. This disobedience of a court order, penalized by a loss of licence, was, in the absence of any valid explanation or justification, considered misconduct within the meaning of the Act: see also The Attorney General of Canada v. Desson, 2004 FCA 303.
[15] It will be recalled that the Umpire said he agreed with the Board's decision and cited the respondent's financial situation as the reason he had lost his licence. This leads me to discuss the relationship that exists between this factual element and the misconduct.
2. The respondent's financial situation and his misconduct
[16] The respondent's financial situation is, in a case like the one before us, a factor to be considered in analyzing the misconduct in terms of a possible justification for it. But it is not the only factor. Moreover, it is not enough simply to cite it or refer to it. It must be determined to what extent it may reasonably excuse or justify the disobedience to the lawful order. In Quebec, this means examining whether there are alternative measures to paying the sum of money that is required or whether the payment could be made by instalments.
[17] In the early 1980s, the Quebec legislature, concerned as it was by the frequency and cost of imprisonment for failure to pay fines, enacted a number of alternative measures that were less drastic than imprisonment and offered greater flexibility but were nonetheless incentives to payment. It is in this context that withdrawal of a licence appeared as an incentive to pay. Initially inserted in the Summary Convictions Act, the alternative and incentive measures proved to be effective and consistent with expectations. They were therefore incorporated in the Code when it was adopted in 1987.
[18] Central and fundamental among the alternative payment measures was the creation of the positions of collectors of fines, who were given the power to enter into agreements with a defendant and to grant additional time for payment if needed without the need to appear again before a judge (articles 322, 327 and 328 of the Code), to offer and accept partial and deferred payments in amounts determined in accordance with a defendant's financial capacity (articles 327 and 328 of the Code) and to offer a defendant who is unable to pay the possibility to pay his fine through compensatory work (articles 333 and 339 of the Code). There are collectors in each judicial district who are mandatorily required to contact debtors through a demand for payment informing them of the amount that is due and the time they have in which to pay it (article 322 of the Code). So a defendant who owes sums of money need only explain the precariousness of his situation and make the appropriate arrangements for payment. As long as a defendant complies with the undertakings he has made, whether those made initially or those he has had subsequently altered, the notice of non-payment of the fine that is to be sent to the Société de l'assurance automobile du Québec (article 364 of the Code), and which results in the loss of licence, remains suspended. This obligation on the collector to send the notice disappears with the final payment of the sums that are due.
[19] With such a system of measures in place, and the flexibility they offer, it is hard to see how a defendant's financial situation can serve as justification for his misconduct resulting from his disobedience to the Court's order. In saying that, I do want it to be understood that I do not exclude such a possibility. But it must be proved and the defendant must establish that he has not been negligent, reckless or defiant toward the judicial authority and the legal obligation that has been imposed on him. The accumulation of unpaid fines, as in Canada (Attorney General) v. Lavallée, 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.
[20] In the case at bar, there is no evidence in the record that the respondent made some arrangements with the collector, that he was unable to carry them out irrespective of how minimal such arrangements were, or that he was unable to do the compensatory work in lieu of paying a sum of money. The Umpire's view of the justifying and exculpatory nature of the respondent's financial situation was therefore lacking in any factual or legal basis.
[21] There is no doubt that the respondent's case is one that attracts sympathy: he is married, the father of four children, unemployed, has fines to pay for which there was no provision in the family budget. It is a difficult situation. But, to repeat, mutatis mutandis, what this Court said in Attorney General of Canada v. Wasylka, 2004 FCA 219, at paragraph 5, to recognize the right to draw regular unemployment benefits to employees who lose their driver's licence, and consequently their jobs, as a result of inexcusable or unjustifiable disobedience to a lawful order to pay a fine would amount to fundamentally altering the nature and principles of this Act and the insurance scheme it establishes. Furthermore, it would contribute to undermining the legislature's efforts to enforce public interest laws through measures that are both incentives to payment and alternatives to imprisonment for failure to pay the fine. The same disobedience to a Court order would mean that those who lose their employment because they lose their licence would be entitled to draw unemployment benefits while those who lose their employment because they are jailed instead would be disqualified. Yet in both cases, as a result of the same misconduct, one of the essential conditions of the contract of employment, the provision of work as agreed, would be lacking.
[22] For these reasons, I would allow the application for judicial review, set aside the decision of the Umpire and send the matter back to the Chief Umpire or an Umpire that he designates for redetermination on the basis that the Commission's appeal should be allowed and the respondent disqualified from unemployment benefits as a result of his misconduct. In the circumstances, in view of the confusion that is not attributable to the respondent, I would allow the application for judicial review without costs.
"Gilles Létourneau"
J.A.
"I agree
Robert Décary J.A."
"I agree
M. Nadon J.A."
Certified true translation
Jacques Deschênes, LL.B.
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-72-04
STYLE: THE ATTORNEY GENERAL OF CANADA v.
JOËL NEVEU
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 21, 2004
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
CONCURRING: DÉCARY J.A.
NADON J.A.
DATED: October 26, 2004
APPEARANCES:
Pauline Leroux FOR THE APPLICANT
Louis Bigué FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE APPLICANT
Deputy Attorney General of Canada
Montréal, Quebec
Bigué & Bigué, Advocates FOR THE RESPONDENT
Val-d'Or, Quebec