Date: 20020508
Docket: A-135-01
Montréal, Quebec, May 8, 2002
LÉTOURNEAUJ.A.
PELLETIERJ.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
ANDRÉ MARION
Respondent
JUDGMENT
The application for judicial review is allowed with costs, the decision of the Umpire is set aside and the matter is referred back to the Chief Umpire or to an umpire designated by him for redetermination on the basis that the Commission's appeal from the decision of the Board of Referees must be allowed, the decision of the Board of Referees set aside and the matter referred back to the Board of refereees for re-hearing.
"Alice Desjardins"
J.A.
Certified true translation
S. Debbané, LLB
Date: 20020508
Docket: A-135-01
Neutral citation: 2002 FCA 185
CORAM: DESJARDINS J.A.
LÉTOURNEAUJ.A.
PELLETIERJ.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
ANDRÉ MARION
Respondent
Hearing held at Montréal, Quebec, on May 8, 2002.
Judgment delivered from the bench at Montréal, Quebec, on May 8, 2002.
REASONS FOR JUDGMENT OF THE COURT: LÉTOURNEAU J.A.
Date: 20020508
Docket: A-135-01
Neutral citation: 2002 FCA 185
CORAM: DESJARDINS J.A.
LÉTOURNEAUJ.A.
PELLETIERJ.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
ANDRÉ MARION
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec,
on May 8, 2002.)
LÉTOURNEAUJ.A.
[1] We are of the opinion that the Umpire erred in affirming the decision of the Board of Referees dated April 14, 2000.
[2] In that decision, the Board of Referees found that the actions of the claimant in
taking drugs, specifically smoking a joint on the job, did not disqualify him from receiving
benefits under section 30 of the Employment Insurance Act, S.C. 1996, c. 23 (Act). The ground for the Board's decision was that the dismissal without notice of an employee with 14 years of service in these circumstances, when it was his first offence of that nature, was an excessive and unfair penalty given that there were other workers who had been suspended as a warning for similar behaviour (consuming alcohol).
[3] The role of the Board of Referees was to determine not whether the severity of the penalty imposed by the employer was justified or whether the employee's conduct was a valid ground for dismissal, but rather whether the employee's conduct amounted to misconduct within the meaning of the Act: Fakhari and Attorney General of Canada (1996), 197 N.R. 300 (F.C.A.); A.G.C. v. Namaro (1983), 46 N.R. 541 (F.C.A.); Canada v. Jewell (1994), 175 N.R. 350 (F.C.A.); A.G.C. v. Secours (1995), 179 N.R. 132 (F.C.A.); Attorney General of Canada v. Langlois, A-94-95, February 21, 1996 (F.C.A.).
[4] For these reasons, the application for judicial review will be allowed with costs, the decision of the Umpire will be set aside and the matter will be referred back to the Chief Umpire or to an umpire designated by him for redetermination on the basis that the Commission's appeal
from the decision of the Board of Referees must be allowed, the decision of the Board of Referees set aside and the matter referred back to the Board of Referees for re-hearing.
"Gilles Létourneau"
J.A.
Certified true translation
S. Debbané, LLB
FEDERAL COURT OF APPEAL
Date: 20020508
Docket: A-135-01
Between:
ATTORNEY GENERAL OF CANADA
Applicant
and
ANDRÉ MARION
Respondent
REASONS FOR JUDGMENT
OF THE COURT
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
COURT FILE NO.: A-135-01
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
Applicant
and
ANDRÉ MARION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 8, 2002
REASONS FOR JUDGMENT OF THE COURT BY:
LÉTOURNEAU J.A.
CONCURRED IN BY: DESJARDINS J.A.
PELLETIER J.A.
DATE OF REASONS: May 8, 2002
APPEARANCES:
Chantal Sauriol FOR THE APPLICANT
Annie Desrosiers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
Montréal, Quebec FOR THE APPLICANT
Loranger et Desrosiers
Roberval, Quebec FOR THE RESPONDENT