Date: 20030609
Docket: A-72-02
Citation: 2003FCA262
CORAM: DÉCARY J.A.
IN THE MATTER OF the Employment Insurance Act, S.N.
1996, c.23 as amended,
and
IN THE MATTER OF the decision of the Honourable Justice
David G. Riche, Umpire, dated November 17, 2001 and received
by the Applicant on January 10, 2002;
BETWEEN:
GARY LOCKE
Applicant
and
THE ATTORNEY GENERAL OF CANADA AND THE
CANADIAN EMPLOYMENT INSURANCE COMMISSION
Respondents
Heard at St. John's, Newfoundland and Labrador, on June 9, 2003.
Judgment delivered from the Bench at St. John's, Newfoundland and Labrador, on June 9, 2003.
REASONS FOR JUDGMENT OF THE COURT BY: Evans J.A.
Date: 20030609
Docket: A-72-02
Citation: 2003FCA262
CORAM: Décary J.A.
Evans J.A.
Sharlow J.A.
IN THE MATTER OF the Employment Insurance Act, S.N.
1996, c.23 as amended,
and
IN THE MATTER OF the decision of the Honourable Justice
David G. Riche, Umpire, dated November 17, 2001 and received
by the Applicant on January 10, 2002;
BETWEEN:
GARY LOCKE
Applicant
and
THE ATTORNEY GENERAL OF CANADA AND THE
CANADIAN EMPLOYMENT INSURANCE COMMISSION
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at St. John's, Newfoundland and Labrador, on June 9, 2003)
[1] This is an application for judicial review by Gary Locke to set aside a decision of an Umpire (CUB 53041) allowing an appeal by the Canada Employment Insurance Commission from a Board of Referees. In a majority decision the Board had allowed Mr. Locke's appeal from the Commission's rejection of his claim for employment insurance benefits on the ground that he was disqualified since he had lost his employment because of his misconduct: Employment Insurance Act, S.C. 1996, c. 23, subsection 30(1).
[2] Mr. Locke had been summarily dismissed without warning for smoking marijuana at the end of his shift, but before punching out, outside the plant where he had worked for approximately 8 years as a labourer.
[3] The Board allowed the appeal on the ground that, although engaging in criminal conduct on an employer's premises may warrant dismissal, smoking a joint of marijuana in the circumstances of this case was not misconduct within the meaning of subsection 30(1) because it was not wilful or reckless. That is to say, the Commission had not established on the balance of probabilities that Mr. Locke either believed or was wilfully blind to the fact that, if caught, he would likely be dismissed on the spot.
[4] The Board based this finding of fact on the following evidence. First, no written version of company policy was in the record, although the Board also noted that a company official had told an agent of the Commission that it was company policy that an employee may be dismissed for using an intoxicant on company premises. Second, there was no evidence that the company had brought such a policy to the attention of the employees: indeed, in his oral testimony Mr. Locke denied being aware of its existence. Third, Mr. Locke had finished work for the day when he was caught. Fourth, the fellow worker with whom he was smoking had been caught twice before but had received only warnings; Mr. Locke testified that he was aware of other individuals who had not been dismissed after being caught smoking marijuana at work.
[5] The Umpire seems to have reversed the Board on the ground that Mr. Locke's behaviour had been wilful or reckless because a reasonable person would realize that smoking marijuana on company premises would likely lead to summary dismissal. The Umpire found that company policy was that an employee may be dismissed for using intoxicants at work, and that Mr. Locke's misconduct was wilful or reckless since it was illegal and contrary to company policy, and "there is sufficient evidence that a reasonable person would find that such an act would be in the realm of recklessness." The Umpire also adopted the view of the dissenting member of the Board of Referees who said that, as an employee of eight years' seniority, Mr. Locke "should be expected to be aware of what is and what is not acceptable behaviour" and that it "was not unreasonable for the employer to have a zero tolerance policy regarding the use of illegal drugs."
[6] We are all of the opinion that the Umpire erred in law in reversing the Board's decision. We are not satisfied that the Board misconstrued the meaning of misconduct in subsection 30(1). Paragraph 115(2)(c) of the Employment Insurance Act permits an Umpire to allow an appeal when the Board's decision is based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. The issue in dispute in this case is the state of mind of Mr. Locke: did he believe or was he wilfully blind to the fact that he was likely to be dismissed if caught smoking marijuana on company premises after he had finished working? This is a question of pure fact and, as such, could only be the subject of a successful appeal to the Umpire under paragraph 115(2)(c).
[7] It is true that the Board did not expressly make a finding on what the company policy was. However, even if the company policy as found by the Umpire existed, it does not follow that Mr. Locke knew, or was wilfully blind to the fact that he would likely be dismissed if caught acting in breach of it. First, Mr. Locke had testified that he was unaware of such a policy and the Board must have preferred this sworn oral evidence to the written statement by an agent of the Commission that Mr. Locke had told him that he was aware of the company's policy. Second, Mr. Locke gave uncontradicted testimony before the Board that, to his knowledge, other employees who had been caught smoking marijuana had been disciplined by being given a warning, but had not been dismissed.
[8] Furthermore, even if Mr. Locke's behaviour was criminal in nature, in light of all the evidence before the Board in this case, including the fact that other employees had not been dismissed after they had been caught smoking marijuana, his behaviour was not such a fundamental breach of the employer/employee relationship that any employee must have known that, if apprehended, he was likely to be dismissed without warning.
[9] Hence, it was not patently unreasonable for the Board to conclude on the evidence before it that the Commission had failed to establish on the balance of probabilities that Mr. Locke either knew or was reckless in not knowing that he was likely to be dismissed for smoking marijuana on company premises after finishing work.
[10] For these reasons, the application for judicial review will be allowed with costs, the decision of the Umpire set aside, and the matter remitted to the Chief Umpire or his designate for reconsideration of the basis that the appeal from the Board of Referees be dismissed.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-72-02
STYLE OF CAUSE: GARY LOCKE v. THE ATTORNEY GENERAL OF
CANADA AND OTHER
PLACE OF HEARING: ST. JOHN'S, NEWFOUNDLAND AND LABRADOR
DATE OF HEARING: JUNE 9, 2003
REASONS FOR JUDGMENT: DÉCARY, EVANS, SHARLOW JJ.A.
RENDERED FROM THE BENCH: EVANS J.A.
DATED: JUNE 9, 2003
APPEARANCES:
LIAM P. O'BRIEN FOR THE APPLICANT
MELISSA CAMERON FOR THE RESPONDENTS
SOLICITORS OF RECORD:
CURTIS, DAWE FOR THE APPLICANT
ST. JOHN'S, NEWFOUNDLAND AND LABRADOR
MORRIS ROSENBERG FOR THE RESPONDENTS
DEPUTY ATTORNEY GENERAL OF CANADA