[1] The issue in this application for judicial review is whether the Umpire erred by reversing a decision of the Board of Referees to the effect that the respondent, because of loss of his driver's licence, had lost his employment because of "misconduct" within the meaning of subsection 30(1) of the Employment Insurance Act, S.C. 1996, c. 23. That subsection reads:

30. (1) A claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause, unless

(a) the claimant has, since losing or leaving the employment, been employed in insurable employment for the number of hours required by section 7 or 7.1 to qualify to receive benefits; or

(b) the claimant is disentitled under sections 31 to 33 in relation to the employment.

30. (1) Le prestataire est exclu du bénéfice des prestations s'il perd un emploi en raison de son inconduite ou s'il quitte volontairement un emploi sans justification, à moins, selon le cas :

a) que, depuis qu'il a perdu ou quitté cet emploi, il ait exercé un emploi assurable pendant le nombre d'heures requis, au titre de l'article 7 ou 7.1, pour recevoir des prestations de chômage;

b) qu'il ne soit inadmissible, à l'égard de cet emploi, pour l'une des raisons prévues aux articles 31 à 33.

[2] The respondent did not appear at the hearing although duly served.

[3] The evidence before the Board of Referees was that the immediate reason for loss of employment was failure on the part of the respondent to make child support payments in due time. The respondent's former employer confirmed by letter of August 8, 2001, that in order to be employed as a driver a staff member "must hold a valid driver's permit".

[4] The Board made the following finding:

After carefully reviewing the facts and listening to the claimant, the Board finds, on the balance of probabilities, that the claimant did lose his employment due to his own misconduct. The Board notes that the reasons given by the claimant at the hearing were inconsistent with the reasons he relied upon, as contained in the docket.

In addition, even though he denies that the loss of his license contributed to his loss of employment, he nevertheless supports the fact that his license was, and is, correctly suspended.

His new reasons for quitting are his 'spying on his son and his ex-wife'. The Board does not believe that those reasons constitute just cause for his quitting his employment in accordance with the Act and regulations.

[5] The learned Umpire took issue with this finding. In his view, the Board's decision was not explicit as to the nature of the misconduct and, in any event, that there was no evidence of actual misconduct because the issue had been dealt with by a court in the respondent's favor. He therefore concluded:

It was alleged by the Commission that the claimant had lost his licence because of his misconduct by failing to make some child maintenance payments. The claimant explained that this issue had been dealt in his favor by a court. There was therefore no evidence of any actual misconduct by the claimant.

I agree that failure to pay child maintenance, as ordered by a court, can constitute misconduct but there are also situations where the failure to make such payments can be explained. In this case the claimant had indicated that the court had been satisfied with his explanation and that he had been exonerated.

There is no indication whatsoever of any evidence of actual misconduct on which the Board based its decision.

[6] In our view, the Board's finding appears clearly to indicate that it was alive to its responsibilities in coming to its decision. It obviously was swayed by the evidence that the loss of employment was due to a failure to make child support payments on time, and it was not impressed by other possible explanations. Some evidence of "exoneration" was put before the Board but was not accepted as a ground for ruling in the respondent's favor. Nor was any explanation supplied as to what was meant by "exoneration" and, in particular, that it showed the suspension was made by mistake.

[7] It seems to us that, on a fair reading, the Board's decision was reasonably based and reveals no error of the sort suggested by the Umpire. Accordingly, the decision ought not to have been to set aside. It follows that this application must be allowed, the decision of the Umpire dated September 25, 2002 set aside and the matter referred back to the Chief Umpire or to an umpire selected by him for redetermination on the basis that the appeal to the Umpire from the decision of the Board of Referees dated December 6, 2001 be dismissed.

"A. J. Stone"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET : A-666-02

STYLE OF CAUSE : THE ATTORNEY GENERAL OF CANADA

Applicant

and

IOAN CHURCHI

Respondent

PLACE OF HEARING : TORONTO, ONTARIO

DATE OF HEARING : NOVEMBER 26, 2003

REASONS FOR JUDGMENT

OF THE COURT : (STONE, ROTHSTEIN, SHARLOW JJ.A.)

DELIVERED FROM THE

BENCH BY: STONE J.A.

APPEARANCES :

Mr. Derek Edwards FOR THE APPLICANT

No appearance FOR THE RESPONDENT

SOLICITORS OF RECORD :

Morris Rosenberg

Deputy Attorney General of Canada FOR THE APPLICANT

Ioan Churchi

Hamilton, Ontario

FOR THE RESPONDENT

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