BETWEEN:
THE ATTORNEY GENERAL OF CANADA
and
Heard at Edmonton, Alberta, on March 12 and 14, 2007.
Judgment delivered from the Bench at Edmonton, Alberta, on March 14, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
Docket: A-239-06
Citation: 2007 FCA 107
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
RYER J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
JOHN McNAMARA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Edmonton, Alberta, on March 14, 2007)
[1] This is an application for judicial review by the Attorney General of Canada (applicant) asking this Court to set aside the decision of Umpire Haddad (CUB65619) made pursuant to the Employment Insurance Act, S.C. 1996, c. 23 (Act).
[2] The Umpire allowed the respondent’s appeal of a decision of a Board of Referees (Board) that denied the respondent unemployment benefits on the grounds that he had lost his employment because of his misconduct within the meaning of section 30 of the Act.
[3] The applicant seeks to have the decision of the Board reinstated. Therefore, the issue before us is whether the Umpire erred in concluding, for reasons that we will address below, that there was no evidence of misconduct.
[4] Section 30 of the Act reads:
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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. |
[Emphasis added.]
[5] The following facts and circumstances underlie these proceedings.
Facts and Circumstances
[6] The respondent is a pipefitter and a member of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local Union 488. In November 2004, he secured employment with Lockerbie & Hole Inc. (the employer) through his union. At the relevant time, the employer provided services to Syncrude, the operator of a construction site.
[7] On 19 November 2004, the respondent submitted to a drug test to gain access to Syncrude’s site. He commenced working on the site on 22 November 2004, before the results of that test were available. On 26 November 2004, after he had worked for four days, the respondent was informed that his drug test was positive for the substance THC (an active ingredient in marijuana). According to Syncrude’s policies, the respondent was not allowed access to the work site. The employer, therefore, terminated his employment.
[8] Before beginning his employment with the employer, the respondent had worked on the Syncrude site and had successfully passed four previous drug tests. The respondent says that he believed that Syncrude had a policy whereby it would not require a new drug test within 90 days of the previous test. It was his belief that he was still under the umbrella of a previous test. He did not think he would be tested on 19 November 2004: see paragraphs 8 to 10 of the respondent’s memorandum of fact and law. Unfortunately, no copy of Syncrude’s policy regulating access to the construction site can be found in the record before us.
[9] The collective agreement which binds the respondent and his employer sets out the terms upon which the employer can carry out drug testing. The respondent claims that the pre-access testing imposed by Syncrude to access the site does not conform to the collective agreement: ibidem, at paragraphs 5 and 6.
[10] After his employment was terminated, the respondent applied for unemployment benefits. He had previously established a claim for benefits, effective 15 February 2004. On 19 January 2005, the Employment Insurance Commission (the “Commission”) denied the respondent further benefits starting 26 November 2004 on the grounds previously mentioned.
The decision of the Umpire
[11] The Umpire found that the respondent would not be allowed by Syncrude to enter the construction site and that this is the reason why his employment was terminated by his employer: see the reasons for the decision, page 94 of the applicant’s record. This finding is not disputed by the parties.
[12] The Umpire also found as a fact that the respondent took the illicit substance prior to the commencement of his employment. From that finding he concluded as follows:
There is ample jurisprudence to establish that criminal activity which occurred prior to being hired will not provide evidence of misconduct. I interpret that to mean any act committed prior to securing employment will not provide evidence of misconduct to justify the termination of employment. Claimant was not employed when the alleged misconduct occurred. He could not be dismissed, therefore, for misconduct. He was dismissed because Syncrude would not permit him to enter the work site. The claimant, in the circumstances concerning his dismissal, is qualified to receive benefits.
[Emphasis added.]
Analysis of the decision
[13] We are of the view that the Umpire misapprehended the law with respect to the definition of misconduct in section 30 of the Act. His erroneous conclusion of law is reviewable on a standard of correctness.
The Umpire’s conclusion that criminal activity prior to being hired is not evidence of misconduct
[14] This Court ruled in Smith v. Canada (Attorney General), [1997] F.C.J. No. 1182 that misconduct can result from an act or omission that occurred prior to taking the employment from which the employee is subsequently dismissed if that misconduct is the cause of the dismissal from employment. Otherwise, an employee, knowing that his misconduct while working for an employer could result in his dismissal, could leave that employment to take up a new employment. Then upon dismissal from this new employment, he could claim unemployment benefits because the misconduct occurred before and not during the new employment, although the misconduct was the operative cause of the loss of the new employment.
[15] The facts in the Smith case are illustrative of such a possibility and the incongruous result that may ensue. Mr. Smith was charged with driving while under the influence of alcohol. He later commenced employment as a truck driver. Upon conviction for an offence committed before commencing his employment, he lost his driver’s license and, consequently, could not perform the work for which he was hired. In other words, he could not fulfill his obligations under the employment contract.
[16] According to the Umpire’s theory of the law and understanding of section 30 of the Act, Mr. Smith would have been entitled to receive benefits. This cannot be. This is not what the Act says since Mr. Smith’s misconduct was the cause of his loss of employment. Indeed, section 30 speaks in terms of a loss of “any employment” as a result of the misconduct. The provision does not limit or confine the disqualification from benefits to the employment occupied at the time of the misconduct. The relationship between employment and misconduct is not one of timing, but one of causation. Therefore, the respondent’s reliance upon the Umpire’s interpretation of the Act is neither supported by a reasonable interpretation of section 30 of the Act nor the decision of this Court in the Smith case.
The respondent’s contention that he was the victim of a wrongful dismissal because the drug test administered by Syncrude was not justified in the circumstances
[17] The respondent also submits that his dismissal was wrongful. He provides two reasons for his submission.
[18] In his view, the drug test that he was asked to undertake was against Syncrude’s policy because, according to his understanding and that of his union, the test was valid until he absented himself from the site for a period of more than ninety (90) days: see paragraphs 8, 9, 10 and 37 of the respondent’s memorandum of fact and law. He claims that within that ninety-day period he could move from one employer to another without having to submit to a new test.
[19] Furthermore, as previously mentioned in the summary of the facts, it is the respondent’s contention that, under the Canadian Model for Providing a Safe Workplace that governed his employment relationship with his employer, the conditions for submitting him to a drug test were not met: see excerpts of the document at pages 63 to 66 of the applicant’s record. There were no reasonable grounds to believe that he was unable to work in a safe manner because of the use of drugs: ibidem, clause 4.4.1, at page 64. Nor, as he said, was he involved in an accident, a near miss or other potentially dangerous incident: ibidem, clause 4.5.1.
[20] In essence, what the respondent is saying is that he is entitled to receive unemployment benefits because of both Syncrude and his employer’s misconduct in wrongfully dismissing him from employment. The answer to this contention is twofold.
[21] First, the respondent was invited to submit to a drug test. He freely and voluntarily accepted the invitation. In so doing, he renounced his right to claim a strict enforcement of Syncrude’s policy. He can hardly complain that Syncrude or his employer acted illegally or improperly in these circumstances.
[22] Second, there is constant jurisprudence from this Court that the role of the Board and the Umpire is not to determine whether the dismissal of an employee was wrongful or not, but rather to decide whether the act or omission of the employee amounted to misconduct within the meaning of the Act: see Canada (Procureure générale) c. Marion, 2002 FCA 184; Canada (Attorney General) v. Caul, 2006 354 N.R. 21 (F.C.A.); Fakhari v. Canada (Attorney General), 197 N.R. 300 (F.C.A.);.Canada (Attorney General) v. Namaro, 46 N.R. 541 (F.C.A.); Canada (Attorney General) v. Jewell, 175 N.R. 350 (F.C.A.); Canada (Attorney General) v. Secours, 179 N.R. 132 (F.C.A.); Canada (Attorney General) v. Langlois (February 21, 1996), Doc. A-94-95, A-96-95 (F.C.A.).
[23] In the interpretation and application of section 30 of the Act, the focus is clearly not on the behaviour of the employer, but rather on the behaviour of the employee. This appears neatly from the words “if the claimant lost any employment because of their misconduct”. There are, available to an employee wrongfully dismissed, remedies to sanction the behaviour of an employer other than transferring the costs of that behaviour to the Canadian taxpayers by way of unemployment benefits.
[24] For these reasons and notwithstanding the valuable efforts of counsel for the respondent, the application for judicial review will be allowed without costs since the applicant waived them. The decision of the Umpire will be set aside and the matter will be referred back to the Chief Umpire, or a person that he designates, for a redetermination on the basis that the respondent lost his employment because of his misconduct and, therefore, was not entitled to receive unemployment benefits.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-239-06
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA v. JOHN McNAMARA
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: March 12 and 14, 2007
REASONS FOR JUDGMENT DESJARDINS J.A.
OF THE COURT BY: LÉTOURNEAU J.A.
RYER J.A.
DELIVERED FROM THE BENCH BY: LÉTOURNEAU J.A.
APPEARANCES:
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FOR THE APPLICANT
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Craig Madill |
FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Deputy Attorney General of Canada
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FOR THE APPLICANT
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Edmonton, Alberta |
FOR THE RESPONDENT
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