BETWEEN:
and
THE ATTORNEY GENERAL OF CANADA
Heard at Toronto, Ontario, on January 11, 2007.
Judgment delivered at Ottawa, Ontario, on February 8, 2007.
REASONS FOR JUDGMENT BY: NADON J.A.
CONCURRED IN BY: SEXTON J.A.
SHARLOW J.A.
Date: 20070208
Docket: A-85-06
Citation: 2007 FCA 36
CORAM: NADON J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
DAVID MISHIBINIJIMA
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1] This is a judicial review application of a decision of an Umpire, dated November 30, 2005, CUB 59150B, which concluded that the applicant had lost his employment with Ardron-Mackie Ltd. (the “employer”) by reason of his misconduct. In so concluding, the Umpire set aside the decision of the Board of Referees (the “Board”) and upheld the decision of the Canada Employment Insurance Commission’ (the “Commission”) which concluded that the applicant was not entitled to receive benefits because he had lost his employment by reason of his misconduct.
[2] It is not disputed that the applicant, who worked for the employer from September 1992 to November 2, 2001, repeatedly failed to show up for work or arrived late on Mondays and, occasionally, on other days of the week, because he drank heavily on weekends.
[3] The applicant was advised by his employer on October 30, 2001, by way of a letter dated October 29, 2001, that due to his absenteeism, his employment was in jeopardy. The letter received by the applicant read as follows:
THIS LETTER IS TO INFORM YOU THAT YOUR ABSENTEEISM HAS REACHED A VERY SERIOUS STAGE, AND CAN NO LONGER BE TOLERATED. HAVING BEEN SPOKEN TO ON NUMEROUS OCCASIONS BY [sic] PREVIOUS SHOP SUPERVISOR, AND MYSELF DURING THE PAST YEAR (INCLUDING 3 OR 4 TIMES WITHIN THE LAST MONTH) REGARDING THIS PROBLEM, CONSIDERATION HAS BEEN GIVEN TO YOUR LENGTH OF TENURE WITH THE COMPANY AND YOUR OTHERWISE SATISFACTORY WORK PERFORMANCE..
AS A RESULT THE FOLLOWING STIPULATION MUST BE ADHERED TO FOR THE NEXT SIX MONTHS, OR YOUR EMPLOYMENT WITH ARDRON-MACKIE LIMITED WILL BE TERMINATED IF YOU FAIL TO COMPLY:
1. NO ABSENTEEISM WITHOUT PRIOR APPROVAL
2. ANY ABSENTEEISM WITHOUT APPROVAL MUST BE COVERED BY MEDICAL NOTE.
[4] On Monday, November 5, 2001, the applicant telephoned Jim Sinclair, the plant supervisor, informing him that he would not be in for work that day and that, as a result, he assumed his employment would be terminated. The applicant’s assumption was correct and he was dismissed.
[5] On December 12, 2001, the applicant submitted an application for employment insurance benefits and, on May 13, 2002, the Commission advised him that he was not entitled to benefits because he had lost his employment by reason of his misconduct.
[6] On January 29, 2003, the Board allowed the applicant’s appeal from the Commission’s decision. After concluding that his alcohol dependence constituted a “disability” under the Canadian Human Rights Act, R.S.C. 1996, c. H-6 (the “CHRA”), and that his dependence was the cause of his absenteeism, the Board concluded that his conduct was not wilful “because his actions were determined by his addiction to alcohol” (p. 4 of the Board’s decision). The Board was of the view that since the employer had not taken any measures to accommodate the applicant’s dependence on alcohol, his dismissal could not be justified. Further, the Board stated that the applicant’s conduct was not so reprehensible as to justify a termination of his employment, considering that he was unable to control his actions because of his dependence on alcohol. Lastly, the Board was of the view that the employer ought to have provided support to the applicant by either allowing him to work Tuesday to Friday, by allowing him to enter a treatment or rehabilitation program, or by taking sanctions less severe than full dismissal. In the Board’s view, these steps were required by the CHRA.
[7] The Umpire, whose decision the applicant seeks to set aside, took an entirely different view of the matter and, as a result, he set aside the Board’s decision. The Umpire was of the view that the sole issue before the Board was whether the applicant had lost his employment due to his own misconduct. Hence, he expressed the view that the issue of whether alcoholism was a disability under the CHRA or whether the employer had a duty to accommodate the applicant were not relevant considerations.
[8] The Umpire then went on to consider the events which gave rise to the applicant’s dismissal and examined that evidence in the light of this Court’s jurisprudence, namely, Canada (Attorney General) v. Turgeon, [1999] F.C.J. No. 1861 (QL), Canada (Attorney General) v. Wasylska, [2004] F.C.J. No. 977 (QL), and Canada (Attorney General) v. Marion, [2002] F.C.J. No. 711 (QL). His review of the jurisprudence led him to conclude that alcoholism could not excuse a claimant’s acts and omissions where they constituted misconduct. As a result, he concluded in the following terms, at page 5 of his Reasons, that the applicant had lost his employment by reason of his misconduct:
I find that the Board erred in fact and in law in its decision. The evidence clearly established that the claimant lost his employment due to his misconduct resulting from his persistent absenteeism and his failure to abide by the terms of his agreement with his employer.
[9] Before turning to the jurisprudence and to the applicant’s submissions, I will set out sub-section 30(1) of the Employment Insurance Act, 1996, c. 23 (the “Act”), which the Commission relied upon for its decision:
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(1) A claimant is disqualified from receiving any benefits if the claimant lost any employment because of his 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.
[Emphasis added]
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(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.
[Je souligne]
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[10] The term “misconduct” has received considerable attention from this Court. Suffice it to refer to our decisions in Canada (A.G.) v. Tucker, [1986] F.C.J. No. 203 (F.C.A.) (QL), Canada (A.G.) v. Brissette, [1993] F.C.J. No. 1371 (F.C.A.) (QL), and Canada (A.G.) v. Secours, [1995] F.C.J. No. 210 (F.C.A.) (QL).
[11] In Tucker, supra, Mr. Justice MacGuigan explained the meaning of “misconduct” at paragraph 15:
… it is, I think, a correct statement of our law in so far as it indicates that in order to constitute misconduct the act complained of must have been wilful or at least of such a careless or negligent nature that one could say the employee wilfully disregarded the effects his or her actions would have on job performance. …
[12] In Brissette, supra, this Court again considered the meaning of the word “misconduct”. At paragraphs 10 and 12 of his Reasons, Mr. Justice Létourneau wrote the following:
10. Moreover, we have no hesitation in concluding that what he did, which was to commit a summary conviction or indictable offence and resulted in a conviction under the Criminal Code, is misconduct within the meaning of subsection 28(1) of the Act. The misconduct referred to in that section may manifest itself in a violation of the law, of a regulation or of an ethical rule, and may mean that an essential condition of the employment ceases to be met, resulting in dismissal. Such a condition may be express or implied and may relate to a concrete or more abstract requirement.
…
12. This being said, that what is done might constitute misconduct under subsection 28(1) does not mean, however, that it necessarily results in disqualification from receiving unemployment insurance benefits. There must, first, be a causal relationship between the misconduct and the dismissal. It is not sufficient, in order for the disqualification to come into play, for the misconduct to be a mere excuse or pretext for the dismissal. It must cause the loss of employment and must be an operative cause. It is not necessary for the purposes of this case to determine whether it must be the only operative cause of the dismissal.
[13] Finally, in Secours, supra, Létourneau J.A., again writing for the Court, stated at paragraph 2 of his Reasons:
2. The learned Umpire, R.J. Marin, made two errors. First he concluded that there was no wrongful intent on the part of the respondent and therefore no intent to defraud. It is not necessary for a behaviour to amount to misconduct under the Act that there be a wrongful intent. It is sufficient that the reprehensible act or omission complained of be made “wilfully”, i.e. consciously, deliberately or intentionally. In the present instance, the respondent knew that she could not manually alter her time card as she had been warned previously. Yet she consciously and deliberately did it.
[14] Thus, there will be misconduct where the conduct of a claimant was wilful, i.e. in the sense that the acts which led to the dismissal were conscious, deliberate or intentional. Put another way, there will be misconduct where the claimant knew or ought to have known that his conduct was such as to impair the performance of the duties owed to his employer and that, as a result, dismissal was a real possibility.
[15] I now turn to the applicant’s submissions. He argues that the Umpire erred in failing to interpret the Act in accordance with the provisions of the CHRA. More particularly, the applicant says that in determining whether misconduct was the cause of his termination, the Umpire was bound to consider that, pursuant to section 25 of the CHRA, alcohol dependence was a “disability”, that it was discriminatory under section 7 thereof to refuse to employ or to continue to employ a person by reason of a prohibited ground of discrimination, i.e. alcohol dependency - a disability - and that an employer was obligated under the CHRA to accommodate an employee’s disability.
[16] Turning to the facts of this case, the applicant says that since it is clear that his absenteeism results from his alcohol dependence, it cannot therefore constitute misconduct since the element of “wilfulness” is not present. To this proposition the applicant adds that in determining whether the element of “wilfulness” is present, regard must be had to the fact that his employer made no attempt to accommodate him by providing counselling, access to programs or a modification of his work schedule.
[17] Thus, the applicant says that the Umpire erred in overturning the Board’s decision. I cannot agree. In my view, the Umpire made no reviewable error in concluding as he did. More particularly, I am satisfied that the Umpire did not err in determining that whether alcoholism is a “disability” pursuant to the CHRA and whether the employer ought to have accommodated the applicant were not relevant considerations.
[18] There can be no doubt in the present matter that the applicant was dismissed because he was repeatedly absent or late for work. The issue, therefore, is whether in the light of all of the relevant circumstances, misconduct was the cause of his dismissal. If so, the judicial review application must be dismissed.
[19] The evidence before the Board was that the applicant had received numerous warnings from his employer regarding his absenteeism going back more than one year and, in particular, three to four times within the month preceding his dismissal. Notwithstanding the serious warning which he received from his employer on October 30, 2001, he failed to report for work on November 5, 2001, advising his employer at approximately 7:20am that he would not be coming in that day.
[20] The evidence also revealed that the applicant had had a drinking problem since at least 1996 and that his employer was aware of his problem. The applicant testified before the Board that after seeing a doctor in July 2001, he entered an Alcoholics Anonymous program given by Anishnawbe Health which he stopped attending in October 2001, prior to his dismissal.
[21] In my view, the Board made two errors. The first one was in finding that the applicant’s conduct was not so egregious as to justify his dismissal. In Canada (A.G.) v. Marion, [2002] F.C.J. 711 (QL), at paragraph 3, Létourneau J.A. remarked in unequivocal terms that the Board was not empowered to determine whether the “severity of the penalty imposed by the employer was justified and whether the employee’s conduct was a valid ground for dismissal”. In his view, there was only one question before the Board and that was whether the claimant’s conduct amounted to misconduct.
[22] Secondly, I am satisfied that in concluding that the applicant had not lost his employment by reason of his misconduct, the Board failed to consider all of the relevant circumstances. This occurred, in my view, because of the Board’s finding that the applicant’s absenteeism resulted from his alcohol dependence, a “disability” under the CHRA, and that as a result, the element of “wilfulness” was not present.
[23] I am not suggesting that the applicant’s alcohol problem was an irrelevant consideration. I am, however, of the view that whether or not that problem constituted a “disability” pursuant to the CHRA was an irrelevant consideration with respect to the question at issue before the Board. The same goes with respect to the employer’s duty of accommodation pursuant to the provisions of the CHRA. Although the measures which an employer takes or could have taken with respect to an employee’s alcohol problem may be relevant to the determination of whether there is misconduct, the fact that the employer failed in its duty to accommodate its employee pursuant to the provisions of the CHRA is not, in my view, a relevant consideration.
[24] Thus, in determining whether the claimant had lost his employment by reason of his misconduct, the Board was bound to consider all of the relevant circumstances leading to his dismissal. However, before turning to those circumstances, I turn to a series of decisions rendered by this Court which are entirely apposite to the present matter.
[25] I begin with our decision in Canada (A.G.) v. Turgeon, [1999] F.C.J. No. 1861 (QL), where Décary J.A., writing for a unanimous Court, concluded that the Umpire had erred in failing to set aside a decision of the Board which had found that the claimant had not lost his employment by reason of misconduct on the ground that alcoholism was the true cause of his dismissal. In concluding that the Umpire should have intervened, Décary J.A. made it clear that assuming that alcoholism could be relied upon to excuse misconduct, the mere fact of its existence was not sufficient to allow for such a conclusion. He then went on to say that on the evidence before it, the Board could not have come to such a conclusion.
[26] In Canada (A.G.) v. Wasylka, [2004] F.C.J. No. 977 (QL), Létourneau J.A. held that the Umpire had erred in concluding that a claimant’s absence from work was not wilful because it resulted from a drug addiction. At paragraphs 4 and 5 of his Reasons, he wrote:
4. It was an error of law for the Umpire to conclude that the respondent’s absence from work was not wilful because of his drug addiction. The consumption of drugs by the respondent, even though attractive or irresistible, was voluntary in the sense that his acts were conscious and that he was aware of the effects of that consumption and the consequences which could or would result. He did declare that he could “not focus on anything that matters” when he was taking the drug: see the Applicant’s Record, page 51. The respondent’s actions that day, i.e. the use of illegal drugs, were sufficiently serious and of such scope that he could normally foresee that it would be likely to result in his dismissal: see Canada (Attorney General) v. Langlois, [1996], F.C.J. No. 241.
5. It would be fundamentally altering the nature and principles of the employment insurance scheme and Act if employees, who lose their employment as a result of abusing impairing substances such as alcohol or drugs, could be entitled to receive regular unemployment benefits. Section 21 of the Employment Insurance Act and 40 of the Employment Insurance Regulations already provide for sickness benefits and the respondent has been a recipient of such benefits.
[27] In Canada (A.G.) v. Richard, [2005] F.C.J. No. 1750 (QL), the claimant, like the applicant herein, had lost his job by reason of repeated absences from his workplace, absences which resulted from his alcohol problem. In concluding that the claimant had lost his employment by reason of his misconduct, Létourneau J.A., at paragraphs 4 to 6, explained his rationale as follows:
4. The respondent disregarded the many warnings received. According to the evidence in the record (see for example the notice of suspension dated February 21, 2002, applicant's record, exhibit number 6-1, page 24), on more than one occasion he refused the help that his employer tried to extend to him through its employee assistance program.
5. Under the circumstances, the respondent could not have been unaware that the breach of his obligations under his employment contract was of such scope that it was normally foreseeable that it would be likely to result in his dismissal: see Attorney General of Canada v. Langlois and Attorney General of Canada v. Edward [1996] S.C.J. No. 241, at paragraph 4.
6. In this case, the respondent's loss of employment was the result of his misconduct and the community need not bear the consequences of that by paying him employment insurance benefits, as he is requesting.
[28] Finally, in Canada (A.G.) v. Pearson, [2006] F.C.J. 818, where the facts were very similar to those found in Richard, supra, and to those found in the present matter, we again determined that the claimant’s problem with alcohol could not allow him to escape the conclusion that misconduct was the cause of his dismissal.
[29] I need only refer to one other decision. In Casey v. Canada (E.I.C.), [2001] F.C.J. No. 1854 (QL), the claimant was appealing a decision of an Umpire who had set aside a decision of the Board which had concluded that he had not been dismissed by reason of his misconduct. Specifically, the Board had concluded that the claimant’s conduct was not wilful because it was the result of his problem with alcohol.
[30] In upholding the Umpire’s decision, Malone J.A. held that there was evidence before the Board from which the wilfulness of the claimant’s admitted misconduct could reasonably be inferred. In so concluding, Malone J.A. alluded to the fact that the claimant had filed evidence before the Board in the form of an expert report so as to demonstrate that his misconduct was not wilful. After stating that the expert report provided general information regarding the effect of alcohol addiction but that it did not express any firm opinion with respect the claimant, Malone J.A. held that the report “was not capable of supporting the conclusion that his conduct was not wilful” (paragraph 3 of his Reasons).
[31] In my view, our decisions in Turgeon, Richard, Wasylka, Pearson and Casey, supra, clearly support the conclusion reached by the Umpire that the applicant had lost his employment by reason of his misconduct. Although the applicant was given ample warning by his employer over a period of at least one year prior to his dismissal and, more particularly, four times in the month prior to his dismissal, and that he was warned on October 30, 2001, that failure to appear for work on time without proper notice would result in his dismissal, he nonetheless failed to show up for work on November 5, 2001.
[32] There can be no disputing, in my view, that an employee’s repeated failure to show up for work is a serious breach of the employment contract, all the more so when the employee has been warned by his employer that such a failure will result in his dismissal. On the evidence before the Board, it is not possible to conclude that the applicant’s conduct was not wilful.
[33] The fact that the applicant had a problem with alcohol is of no help to him. To quote the words of Létourneau J.A. at paragraph 4 of his Reasons in Wasylka, supra, the consumption of alcohol by the applicant “… was voluntary, in the sense that his acts were conscious and that he was aware of the effects of that consumption and the consequences which could or would result”.
[34] I note that in Turgeon,supra, and Casey, supra, both Décary J.A. and Malone J.A. were of the view that the evidence adduced was insufficient to support the claimant’s contention that there was no misconduct by reason of his alcoholism. In the present matter, there is no medical opinion, no evidence from Anishnawbe Health or any other evidence which, in my view, could possibly support the conclusion that the applicant’s conduct was not wilful.
[35] The evidence before the Board with respect to the applicant’s problem with alcohol is very weak and, in my view, insufficient to justify the conclusion sought by the applicant. All that is known about his problem comes from his testimony before the Board where he said that he had had an alcohol problem since 1996, that his problem became progressively worse as of July 2001 and that upon the advice of a doctor, he entered a program given by Anishnawbe Health.. When asked by his counsel whether he felt that he had a problem with alcohol, the applicant answered yes. He was then asked if he felt that he was unable to control his alcoholism and he answered yes. This testimony appears at page 19 of the transcript of the evidence which he gave before the Board on September 5, 2002 (page 84, Applicant’s Record). The specific questions and answers read as follows:
Q. … Do you feel that you have an alcohol problem?
A. Yes.
Q. And is it your feeling that you are unable to control this problem?
A. Yes.
[36] That is the extent of the evidence adduced by the applicant regarding his alcohol problem. I cannot see how that evidence could possibly support an argument that his conduct was not wilful. Whether or not, in a given case, a different conclusion could be reached, assuming that sufficient evidence was adduced regarding a claimant’s inability to make a conscious or deliberate decision, which evidence would likely include medical evidence, is an issue which I need not address. Clearly, in the present matter, the evidence adduced is incapable of supporting a conclusion that the applicant’s conduct was not wilful.
[37] One final point. With respect to his submission regarding the applicability of the CHRA, the applicant relied heavily on the Supreme Court of Canada’s decision in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, April 21, 2006. In my view, that decision is of no help to the applicant.
[38] What was at issue before the Supreme Court in Tranchemontagne, supra, was whether the Ontario Social Benefits Tribunal (the “SBT”) had jurisdiction to consider the Ontario Human Rights Code (the .Code”) in making a determination under the Ontario Disability Support Program Act, [1997] S.O. 1997, c. 25, Sched. B (the “Support Program Act”). The Supreme Court answered that question by a yes. Because subsection 47(2) of the Code provided that where a provision of an Ontario statute or regulation was in conflict with the provisions of the Code, the latter would prevail unless the statute or regulation specifically provided that it was to apply despite the Code, the Supreme Court referred the matter back to the SBT for a determination on the applicability of subsection 5(2) of the Support Program Act which was possibly in conflict with the Code.
[39] Firstly, in the present matter, the Umpire was not of the view that he was without jurisdiction to consider the CHRA. Rather, he was of the opinion that in view of the question that was before him, i.e. whether the applicant had lost his employment by reason of his misconduct, a determination of whether the applicant had a disability under the CHRA or whether the employer had met his duty of accommodation were not relevant considerations. I have already indicated that, in my view, the Umpire did not err in so concluding.
[40] Secondly, it is of importance to note that subsection 47(2) of the Ontario Code expressly provides that where a provision in an act or regulation of Ontario requires or authorizes conduct which is in contravention of the Code, the provisions of the Code are to prevail. I have found no such provision in the CHRA.
[41] For these reasons, the application for judicial review will be dismissed with costs.
“I agree.
J. Edgar Sexton J.A.”
“I agree.
K. Sharlow J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-85-06
STYLE OF CAUSE: DAVID MISHIBINIJIMA v. A.G.C.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 11, 2007
REASONS FOR JUDGMENT BY: NADON J.A.
SHARLOW J.A.
APPEARANCES:
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Amy Britton-Cox
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FOR THE APPLICANT
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Aboriginal Legal Services of Toronto Toronto, Ontario
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FOR THE APPLICANT
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Deputy Attorney General of Canada |
FOR THE RESPONDENT
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