Date: 20030605
Docket: A-720-01
Citation: 2003 FCA 255
CORAM: RICHARD C.J.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
PATRICK LAVALLÉE
Respondent
Hearing held at Ottawa, Ontario, on June 3, 2003.
Judgment delivered at Ottawa, Ontario, on June 5, 2003.
REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRED IN BY: RICHARD C.J.
PELLETIER J.A.
Date : 20030605
Docket: A-720-01
Citation: 2003 FCA 255
CORAM: RICHARD C.J.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
PATRICK LAVALLÉE
Respondent
REASONS FOR JUDGMENT
NOËLJ.A.:
[1] This is an application for judicial review of a decision of an Umpire (CUB 52574) dismissing an appeal by the Employment Insurance Commission ("Commission") and upholding the decision of the Board of Referees determining that the claimant had not voluntarily left his employment without just cause or lost his employment because of his own misconduct within the meaning of sections 29 and 30 of the Employment Insurance Act (Act).
[2] The evidence disclosed that in February 2000 the claimant advised his employer that he had to take time off work to go to prison for not having paid fines for violations under the Highway Safety Code. The fines totalled approximately $9,000. Since he was unable to carry out the duties of his position, the employer dismissed him.
[3] The claimant explained that he was supposed to return to his position when he left prison, but he was unable to do so because the terms of his parole prevented him from working in Ontario, where his employer's company was located.
[4] The claimant applied for benefits, stating that he had left his employment because he had been in prison. After an initial benefit period was established, the Commission imposed a disqualification on the ground that the claimant had lost his employment because of his own misconduct. Following representations made by counsel for the claimant, that decision was amended by adding as a ground for disqualification the fact that the claimant had voluntarily left his employment without just cause.
[5] The claimant's appeal from that decision was allowed by the Board of Referees. According to the Board, the claimant did not choose to leave his employment,but was forced to do so because he could not afford to pay the $9,000 in fines. In addition, he had taken reasonable steps so that his employer would take him back after his imprisonment. The Board also concluded that there had been no misconduct.
[6] On August 31, 2001, the Umpire dismissed the appeal by the Commission of the Board of Referees' decision. According to the Umpire, the decision of the Board of Referees was based on the facts of the particular case, and he could not substitute his opinion for that of the Board of Referees.
Analysis and decision
[7] In my view, the Board of Referees erred in law in concluding that there was no misconduct within the meaning of section 30 of the Act, and the Umpire should have intervened with respect to that part of the decision.
[8] The Umpire decided not to intervene on this point and stated:
In the case at bar, it is not the penalty imposed but the parole conditions which prevented the claimant from returning to work.
. . .
Based on those facts, the Board concluded that the claimant had not lost his employment because of misconduct and had not willingly lost that employment. I find that the Board did not err but in fact based its decision on a serious and well-based review of the all the evidence brought before it.
[9] The evidence disclosed that as a result of a series of violations under the Highway Safety Code, the claimant accumulated fines that he could no longer afford to pay. Therefore, he himself was the cause of his deprivation of liberty and his loss of employment. Nor can he blame the terms of his parole, because the conditions that were imposed also originated from his own actions.
[10] As Létourneau J.A. stated in Canada (AG) v. Brissette, [1994] 1 F.C. 684 (C.A.), the performance of services is an essential condition of the employment contract. An employee who, through his own actions, can no longer meet that condition and as a result loses his employment, cannot force others to bear the burden of his unemployment, no more than someone who leaves his employment voluntarily (Tanguay v. Canada (Unemployment Insurance Commission (1985), 10 C.C.E.L. (F.C.A.) 239 at page 244).
[11] Therefore, the Umpire should have intervened and set aside the decision of the Board of Referees determining that the claimant had not lost his employment because of his own misconduct.
[12] For these reasons, I would allow the application for judicial review, I would set aside the decision of the Umpire and I would return the matter to the Chief Umpire or to his designate for rehearing on the basis that the claimant lost his employment because of his own misconduct.
"Marc Noël"
J.A.
"I concur.
J. Richard, C.J."
"I concur.
J.D. Denis Pelletier, J.A."
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
APPEAL DIVISION
SOLICITORS OF RECORD
DOCKET: A-720-01
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
v. PATRICK LAVALLÉE
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 3, 2003
REASONS FOR JUDGMENT BY: Noël J.A.
CONCURRED IN BY: Richard C.J.
Pelletier J.A.
DATED: June 5, 2003
APPEARANCES:
Pauline Lairise FOR THE APPLICANT
REPRESENTING HIMSELF
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE APPLICANT
Deputy Attorney General of Canada
Ottawa, Ontario
Patrick Lavallée
Hull, Québec REPRESENTING HIMSELF
Date: 20030605
Docket: A-720-01
OTTAWA, ONTARIO, JUNE 5, 2003
CORAM: RICHARD C.J.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
PATRICK LAVALLÉE
Respondent
JUDGMENT
The application for judicial review is allowed, the decision of the Umpire is set aside and the matter is returned to the Chief Umpire or to his designate for rehearing on the basis that the claimant lost his employment because of his own misconduct.
"J. Richard"
Chief Justice
Certified true translation
Mary Jo Egan, LLB