A-45-96
Winnipeg, Manitoba, Wednesday, this 18th day of December 1996.
Present: The Honourable The Chief Justice
The Honourable Mr. Justice Robertson
The Honourable Mr. Justice McDonald
IN RE The Unemployment Insurance Act
B E T W E E N:
ATTORNEY GENERAL OF CANADA,
Applicant,
- and -
DOUGLAS BOULTON,
Respondent.
JUDGMENT
The section 28 application is allowed, the decision of the Umpire dated
15 October, 1995, is set aside and the matter is remitted to the Chief Umpire or his designate on the basis that the appeal from the Board of Referees be dismissed.
"Julius A. Isaac"
C. J.
A-45-96
CORAM: THE CHIEF JUSTICE
ROBERTSON, J.A.
McDONALD, J.A.
IN RE The Unemployment Insurance Act
B E T W E E N:
ATTORNEY GENERAL OF CANADA,
Applicant,
- and -
DOUGLAS BOULTON,
Respondent.
Heard at Winnipeg, Manitoba, Wednesday, December 18, 1996
Judgment rendered from the Bench at Winnipeg, Manitoba, December 18, 1996
REASONS FOR JUDGMENT OF THE COURT BY: ROBERTSON, J.A.
A-45-96
CORAM: THE CHIEF JUSTICE
ROBERTSON, J.A.
McDONALD, J.A.
IN RE The Unemployment Insurance Act
B E T W E E N:
ATTORNEY GENERAL OF CANADA,
Applicant,
- and -
DOUGLAS BOULTON,
Respondent.
REASONS FOR JUDGMENT
(Delivered from the Bench at Winnipeg, on Wednesday, December 18, 1996)
ROBERTSON, J.A.
On October 12, 1993 the respondent's employment was terminated after a number of employees observed that he was "under the influence of alcohol" while at work on October 8, 1993. The respondent claimant filed for unemployment insurance benefits on October 25, 1993, at which time he stated that he lost his job because he had alcohol on his breath. The claim for benefits was denied by the Commission on the basis that the claimant had lost his job as a result of his own misconduct. That decision was made pursuant to section 28 of the Unemployment Insurance Act. Before appealing that decision to the Board of Referees the claimant filed a grievance through his union. On January 23, 1994 the grievance was resolved, without arbitration, on the following basis set out in a letter written by the employer and accepted by the claimant's bargaining agent:
| The Company, on a "Without Prejudice" and "Without Precedent" basis is prepared to resolve the grievance concerning the termination of Doug Boulton as follows: |
| 1. All grievances in respect of any matter concerning Douglas Boulton are hereby withdrawn as fully and finally resolved. |
| 2. Mr. Boulton will be treated as reinstated to employment with a waiver of all claims to retroactive pay, benefits etc. as of December 7, 1993. |
| 3. It is agreed that Mr. Boulton will have been properly laid off according to his seniority as of December 7, 1993. |
| 4. Mr. Boulton, and the Union on his behalf, hereby waive any rights of recall or re-employment which Mr. Boulton may have, fully and finally. |
On January 26, 1994 the Board heard the appeal. Relying on the decision in CUB 22053A, a majority of the Board concluded that agreements which include a "without prejudice" clause are not admissible as proof that the loss of employment was not due to misconduct. For this reason the majority of the Board dealt with the misconduct issue on the basis of the other evidence and concluded that the claimant was properly disqualified from receiving benefits pursuant to section 28 of the Act.
The dissenting member of the Board focused on the terms of the settlement agreement which provide that the claimant is deemed to have been reinstated to his employment effective December 7, 1993 and then laid off in accordance with his seniority on the same date. According to the dissenting member, the jurisprudence is clear that when a termination is later withdrawn and an employee is reinstated, it is no longer possible to find that the employee lost his job as a result of his own misconduct. Accordingly, since the employee's misconduct on the part of the claimant was withdrawn pursuant to the settlement agreement the Commission could no longer prove that the claimant had lost his employment because of his own misconduct.
The claimant appealed the decision of the Board to the Umpire who made two principal findings. First, he held that the settlement agreement was admissible, citing Sopinka, Lederman and Bryant, The Law of Evidence in Canada (Toronto: Butterworths, 1992) at 730. Second the Umpire applied the reasoning in CUB 19724, allowed the appeal and set aside the decision of the Commission disqualifying the claimant. In CUB 19724 the Umpire had found that the employer's decision concerning perceived misconduct on the part of the claimant had been withdrawn and, therefore, it could not be said that the claimant in that case had lost his employment due to his own misconduct.
Counsel for the Attorney General does not question the Umpire's finding with respect to the admissibility of the settlement agreement. Rather the issue has been narrowly defined as follows: whether the Umpire erred in relying on the existence of the grievance settlement between the employer and the claimant to find that the employer had withdrawn its previous submissions that the claimant had lost his employment by reason of his own misconduct. With great respect, we are of the view that the learned Umpire so erred.
We take it for granted that the mere existence of a concluded settlement agreement is not of itself determinative of the issue of whether an employee was dismissed for misconduct: See Canada (A.G.) v. Peruse, unreported, A-309-81, December 14, 1981 (F.C.A). It is for the Board to assess the evidence and come to a decision. It is not bound by how the employer and employee or a third party might characterize the grounds on which an employment has been terminated.
We are also of the view that there is nothing in the settlement agreement in question which would permit one to infer that the employer withdrew his allegation of misconduct against the claimant. It neither expressly nor implicitly includes admissions that the facts on file with the Commission were erroneous or
did not accurately reflect the events as they occurred on October 8, 1993. In short, nothing in that agreement casts doubt on the majority decision of the Board.
In our view the Umpire cannot be faulted for relying on CUB 19724, which was eclipsed recently by an unreported decision of this Court: Canada (A.G.) v. Wile, (30 November, 1994) A-233-94. In that case the Court had to deal with the effect of a settlement agreement which contained the following sentence: "Neither party admits or alleges any fault for the unhappy differences that have arisen between them." In the present case the Umpire adopted a line of reasoning which mirrors that offered by the Umpire in Wile. The latter stated as follows:
| In my view, [the sentence] must be taken to nullify the comments of the claimant's supervisor, upon which the Commission, and later the Board of Referees, relied as the basis for finding that the claimant lost his employment by reason of his own misconduct. Absent that evidence, which in my view must now be discounted, there is no evidence of misconduct on the part of the claimant in relation to his dismissal from employment. |
On appeal to this Court it was held that the above reasoning constituted an error of law. Writing for the Court Stone, J.A. stated:
| We would agree with the learned Umpire if the evidence of facts contained in the settlement agreement could be so viewed. In our opinion, however, the clause that the Umpire relied upon must be seen in the context of the entire agreement. Plainly, the agreement was designed to dispose of a complaint of alleged sexual discrimination by the respondent against his former employer. Nothing on the face of the agreement can reasonably be viewed as referable to the precise circumstances which led the respondent's former employer to dismiss him on March 15, 1991. With respect, we are unable to agree that the clause in question had the effect which the Umpire attributed to it, viz, of nullifying the comments of the respondent's supervisor before the Board of Referees. |
The ratio of the Wile decision is that before a settlement agreement can be used to contradict an earlier finding of misconduct, there must be some evidence in respect of the misconduct which would contradict the position taken by the employer during the investigation by the Commission or at the time of the hearing before the Board. In our view the settlement agreement in question does not have
this effect. This is not to suggest that settlement agreements cannot be admitted as evidence to rebut the Commission's understanding that employment was lost due to a claimant's own misconduct. Where, for example, a settlement agreement provides for reinstatement or the employee is given meaningful compensation then due weight should be given to such evidence.
For these reasons the application will be allowed, the decision of the Umpire dated October 15, 1995 set aside and the matter remitted to the Chief Umpire or his designate on the basis that the appeal from the Board of Referees be dismissed.
"J. T. Robertson"
J.A.
FEDERAL COURT OF CANADA
APPEAL DIVISION
Court No.: A-45-96
IN RE The Unemployment Insurance Act
B E T W E E N:
| ATTORNEY GENERAL OF CANADA |
Applicant,
- and -
| DOUGLAS BOULTON |
Respondent.
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REASONS FOR JUDGMENT
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FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-45-96
STYLE OF CAUSE: Attorney General of Canada v. Douglas Boulton
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: December 18, 1996
REASONS FOR JUDGMENT THE CHIEF JUSTICE
OF THE COURT: ROBERTSON, J.A.
McDONALD, J.A.
DELIVERED BY: ROBERTSON, J.A.
DATED: December 18, 1996
APPEARANCES:
Mr. Douglas Boulton on his own behalf
Mr. M. Curby for the Applicant
Department of Justice
211 Bank of Montreal Building
10199 - 101 Street
Edmonton, Alberta
T5J 3Y4
SOLICITORS OF RECORD:
Mr. Douglas Boulton on his own behalf
#314 - 359 St. Anne's Road
Winnipeg, Manitoba
R2M 1Z9
Mr. George Thomson, Q.C.
Deputy Attorney General
of Canada,
Ottawa, Ontario for the Applicant