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A-371-78
Roger Boulianne (Applicant)
v.
The Honourable Mr. Justice Allison A. M. Walsh, Canada Employment and Immigration Commis sion and Deputy Attorney General of Canada (Respondents)
Court of Appeal, Jackett C.J., Pratte J. and Hyde D.J.—Montreal, December 13, 1978.
Judicial review — Unemployment insurance — Sum received by applicant as out of court settlement of grievance arising out of his dismissal — Whether or not Umpire's decision, reversing a decision of the Board of Referees that it was compensation for a slur on his reputation, holding that sum was income within s. 172 of Unemployment Insurance Regulations, should be set aside — Unemployment Insurance Regulations, SOR/55-392 as amended by SOR/71-324, s. 172(2)(a) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
P. Grenier for applicant.
G. LeBlanc for respondents.
SOLICITORS:
Melançon, Hélie, Marceau, Grenier & Scior- tino, Montreal, for applicant.
Deputy Attorney General of Canada for respondents.
The following is the English version of the reasons for judgment delivered orally by
PRATTE J.: Applicant is asking this Court to set aside a decision of an Umpire pursuant to the Unemployment Insurance Act, 1971, S.C. 1970- 71-72, c. 48, which reversed the decision of a Board of Referees and held that an amount of $5,000 which applicant had received from his former employer was income from employment within the meaning of section 172(2)(a) of the Unemployment Insurance Regulations, SOR/55- 392 as amended by SOR/71-324.
Applicant was employed by a hospital centre. On February 13, 1975, he was dismissed. Five days later, the employer gave him the reason for his dismissal in writing. In accordance with the
collective agreement governing his conditions of employment, applicant submitted a grievance against his dismissal, which he regarded as unlaw ful and unjustified. The grievance was submitted to arbitration and, on August 14, 1975, the arbi tration tribunal decided that the grievance should be allowed solely on the ground that the employer had not, as provided by the collective agreement, given applicant the reason for his dismissal within four days after the dismissal. The tribunal accord ingly ordered the employer to reinstate applicant and to pay him the equivalent of the salary he had lost by his dismissal from February 13, 1975 onwards, deducting, if applicable, wages paid else where since that time.
The employer was planning to challenge this award in the Superior Court when a settlement was reached, on October 17, 1975, between the parties. This agreement is contained in a document which reads as follows:
THE PARTIES HERETO AGREE THAT:
(1) The employer, pursuant to the decision of the arbitration tribunal presided over by Mr. Jean-Paul Lemieux, dated August 14, 1975, grievance No. 9620, will not file a motion for evocation in the Superior Court;
(2) Mr. Roger Boulianne and the aforementioned union will withdraw grievance No. 9620, dated February 21, 1975, and grievance No. 28526, dated September 18, 1975;
(3) Mr. Roger Boulianne will submit his resignation today, to have effect from February 13, 1975;
(4) In view of the foregoing, and the fact that it is important to avoid legal costs and costs of arbitration, the employer will pay Mr. Roger Boulianne the sum of five thousand dollars ($5,000) as compensation and/or damages, without however making any admission thereby, and solely for the purpose of settling a legal dispute out of court;
(5) Mr. Roger Boulianne accordingly gives the Hôtel-Dieu de St -Jérôme a complete and final release from any claim of any nature whatsoever;
(6) This agreement is made without any admission by any party whatsoever, solely to resolve a specific case, and may not be used as a precedent.
The Commission held that the sum of $5,000 received by applicant pursuant to this settlement constituted income of applicant within the mean ing of section 172(2)(a) of the Regulations. Appli cant appealed from this decision to the Board of Referees. The Board concluded that the $5,000 had been paid to applicant to compensate him not for a loss of wages, but for a slur on his reputation. The Board accordingly "recommended" that the
amount in question not be considered applicant's income. The Commission appealed to an Umpire who, noting that the Board of Referees had only made a recommendation, refused to hear the appeal and returned the case to the Board for it to make a decision; however, the Umpire expressed the opinion that an "employee may not recover damages in law for a slur on his reputation in the case of a dismissal without good reason". The Board, after hearing applicant, held that "this $5,000 was awarded to him for defamatory libel". Accordingly, it held that this amount did not constitute income of applicant which should be taken into account in determining his entitlement to unemployment insurance benefits. The Commis sion appealed from this second decision. No new evidence was presented to the Umpire. The latter decided the appeal on a record which contained only the decision of the Board and the documen tary evidence that had been before the Board; he allowed the appeal and held that the $5,000 in question had been paid to applicant to compensate him for loss of wages, and should accordingly be regarded as income. This is the decision from which applicant is appealing here.
The recent decision of this Court in Attorney General of Canada v. Walford [1979] 1 F.C. 768 established that amounts paid by the employer to a former employee who has been dismissed without notice constitute income for the employee within the meaning of section 172(2)(a) of the Unem ployment Insurance Regulations, provided that such amounts have been paid to the employee to compensate him for a loss of wages that resulted or that may result from an unlawful dismissal. There is no question here of disputing the validity of that decision. In the case at bar, however, the Board of Referees, after hearing applicant's testimony, con cluded that he had received $5,000 to compensate him for a slur on his reputation. This was a finding of fact which the Umpire set aside without taking into consideration applicant's testimony before the Board, and without having himself heard applicant or otherwise admitted new evidence on the point. If the Trial Judge decided in this manner it would seem that it was because, like the Umpire who preceded him, he was of the opinion that an "employee may not recover damages in law for a slur on his reputation in a dismissal without good
reason". In my opinion, this view is erroneous. An unlawfully dismissed employee may, as a result of the circumstances in which he was dismissed, sus tain damages other than the loss of wages (includ- ing a slur on his reputation). In such a case, the amounts paid to him to compensate him for these other damages are not income within the meaning of section 172 of the Regulations.
The finding of fact by the Board of Referees that $5,000 was paid to compensate applicant for a slur on his reputation was therefore not based on any error of law. That being so, it could only be set aside by the Umpire if, after hearing all relevant evidence which the parties could present to him, he concluded this finding was in fact erroneous.
For these reasons, I would allow the action and return the case to the Umpire for him to decide it on the assumption that it is possible, in law, for a former employee to recover damages for a slur on his reputation from the employer who unlawfully dismissed him.
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JACKETT C.J. concurred.
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HYDE D.J. concurred.
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