A-381-85
Attorney General of Canada (Applicant)
v.
Francine Tucker (Respondent)
INDEXED AS: CANADA (ATTORNEY GENERAL) V. TUCKER
Court of Appeal, Marceau, Stone and MacGuigan
JJ.—Toronto, March 18; Ottawa, March 27,
1986.
Unemployment insurance — Application to review and set
aside Umpire's decision Board of Referees erred in not consid
ering claimant's intention — Flight attendant suspended for
impairment during flight — Disqualified under s. 41 of Act
from receiving unemployment insurance benefits on ground
loss of employment resulting from own misconduct — Claim
ant admitting impairment but denying intent to neglect duties
— Board of Referees upholding disqualification — Umpire
finding no misconduct without wilfulness and substituting her
decision for that of Board — Appeal dismissed — Construc
tion of "misconduct" question of law — Umpire correctly
interpreting s. 41(1) as requiring mental element of wilfulness
— Rationale of provision to punish undesirable conduct fall
ing short of true unemployment Act intended to benefit —
Board erred in considering proof of mental element unneces
sary — S. 96 entitling Umpire to give decision Board should
have given — Unemployment Insurance Act, 1971, S.C. 1970-
71-72, c. 48, ss. 41(1), 95 (as am. by S.C. 1976-77, c. 54, s.
56), 96.
Construction of statutes — Unemployment Insurance Act,
1971, s. 41 — Suspension of flight attendant for impairment
on duty disqualifying her from receiving unemployment insur
ance benefits as loss of employment due to own misconduct —
Admitted impairment, but denied intent to neglect duties —
Construction of "misconduct" question of law — Application
to particular facts question of fact — "Misconduct" requiring
mental element of wilfulness — Rationale of provision to
punish undesirable conduct falling short of true unemployment
— Interpretation also supported by: dictionary definition;
modifying personal pronouns "his own" implying responsibili
ty; parallelism with requirement of "voluntarily" leaving
employment without just cause and French phrase, "sa propre
inconduite" with similar connotation — Unemployment Insur
ance Act, 1971, S.C. 1970-71-72, c. 48, s. 41(1).
Judicial review — Applications to review — Suspension of
flight attendant for impairment disqualifying her from receiv
ing unemployment insurance benefits as having lost employ
ment because of own misconduct — Admitted impairment, but
not mental element for misconduct — Board of Referees
denying appeal — Umpire holding Board erred in not consid
ering intent — Having found error of law, Umpire entitled to
substitute her decision for that of Board pursuant to s. 96 —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 —
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48,
ss. 41(1), 95 (as am. by S.C. 1976-77, c. 54, s. 56), 96.
This is an application to review and set aside the decision of
an Umpire. A flight attendant, suspended for impairment
during a flight, was disqualified under section 41 of the Unem
ployment Insurance Act, 1971 from receiving unemployment
insurance benefits as the loss of employment was due to her
own misconduct. The claimant appealed to the Board of
Referees, admitting her impairment, but explaining that she
had taken tranquilizers not prescribed for her. She argued that
she had not intended to neglect her duties. The Board of
Referees dismissed her appeal. The Umpire found that the
Board had erred in law in not considering the claimant's mental
intent. She found that there could be no misconduct without an
element of wilfulness. Pursuant to section 96, the Umpire then
gave the decision on the facts that, in her opinion, the Board of
Referees should have given. The applicant argues that 1) the
Umpire exceeded her jurisdiction in substituting her view of the
facts for that of the Board of Referees and 2) the Umpire erred
in her definition of misconduct.
Held (Marceau J. dissenting), the appeal should be
dismissed.
Per MacGuigan J. (Stone J. concurring): In Attorney Gener
al of Canada v. Bedell, Stone J. held that "The construction of
the word `misconduct' is a question of law." The applicant
relied upon Brutus v. Cozens, [1973] A.C. 854 (H.L.) for the
proposition that the construction of an ordinary word of the
English language is not a question of law. But in R v National
Insurance Comr, ex parte Secretary of State for Social Ser
vices, [1974] 3 All ER 522 (Q.B.), it was held that "the
decision of the correct shade of meaning to give to the word in a
particular context becomes a matter of construction and there
fore a matter of law". The application of a statutory word to
particular facts is a matter of fact.
The Umpire correctly interpreted subsection 41(1) as requir
ing a mental element of wilfulness, or conduct so reckless as to
approach wilfulness. This is supported by the definition of
"misconduct" in Black's Law Dictionary and the modifying
personal pronouns "his own" before "misconduct" in section
41, which imply responsibility and so intentionality or reckless
ness. There is the parallelism with the requirement of `volun-
tarily" leaving his employment without just cause. There is the
French phrase "sa propre inconduite" with a similar connota
tion to that of the English phrase. Finally, there is the rationale
of the whole provision, which is to impose a disqualification as
a kind of "punishment" for undesirable conduct which falls
short of the true unemployment the Act intends to benefit.
The applicant argued that the Board of Referees committed
no error of law in its decision. On the basis of the fact that the
claimant admitted impairment but denied the requisite mental
element of misconduct, the Board concluded that her admission
of impaired performance was an admission of misconduct.
Since her admission was an admission of fact only, and not of
the requisite mental state, the only meaning that can be given
to the Board's conclusion is that the Board considered proof of
a mental element unnecessary. This is a misinterpretation of
subsection 41(1) and is thus an error of law on the part of the
Board.
Once the Umpire has correctly found an error of law, section
96 entitles the Umpire to give the decision she believes the
Board should have given.
Per Marceau J. (dissenting): The English word "misconduct"
may not have a connotation of wilfulness, but the same cannot
be said of the French word "inconduite". Also, the context
requires such a connotation, since the purpose of the provision
is to impose a penalty, and one would not punish an individual
for something done without his free will. However, the Umpire
erred in saying that in order to constitute misconduct the
employee must have wilfully disregarded the effects his actions
would have on job performance. The spirit behind this state
ment was unduly influenced by preoccupations attached to the
criminal law. Also, a certain action and the effects thereof
should not be confused. Only the action needs to be wilful to
constitute misconduct, and it may be so even if the effects are
not intended. Impairment is not an action. It is the effect of an
action. Reference to "conduct" of an individual usually refers
to a series of linked actions, and the conduct itself may be seen
as wilful even if some of the interrelated actions occur as a
necessary consequence of preceding ones, and as such are not
dictated by volition. The concept of misconduct is applicable to
any behaviour and its application requires the consideration of
all surrounding circumstances, such as, in the case of an
employee, the nature of his duties, his intention at the time of
the incident, the certainty, probability or mere possibility,
immediate or remote that his ability to satisfactorily perform
his duties would be affected or that unfortunate consequences
would ensue and the gravity of those consequences.
The Board of Referees did not err. The word "misconduct"
was intended to be given its usual and ordinary meaning.
Nothing indicates that the Board misunderstood the meaning
of the provision. The Board must have considered the mental
disposition of the respondent, as it appears to be the only
possible reason for the Board reducing the number of weeks of
disentitlement. In effect, the Umpire says that she cannot be
sure that the Board has not committed an error. This is a
reversal of the presumption of validity that attaches to all
decisions of first instance, particularly those open to only
limited review. The mere possibility of an error does not entitle
the Umpire to reconsider the facts and substitute his applica
tion for that of the Referees. To infer an error, the Umpire
must be satisfied that no reasonable person apprised of the law
could have reached the conclusion they arrived at. That was not
the case.
CASES JUDICIALLY CONSIDERED
APPLIED:
Deputy Minister of National Revenue for Customs and
Excise v. GTE Sylvania Canada Limited, judgment
dated December II, 1985, Federal Court, Appeal Divi
sion, A-539-83, not yet reported; Attorney General of
Canada v. Bedell, judgment dated June 8, 1984, Federal
Court, Appeal Division, A-1716-83, not yet reported.
CONSIDERED:
Brutus v. Cozens, [1973] A.C. 854 (H.L.).
COUNSEL:
Roslyn J. Levine for applicant.
APPEARANCE:
Francine Tucker on her own behalf.
SOLICITOR:
Deputy Attorney General of Canada for
applicant.
RESPONDENT ON HER OWN BEHALF:
Francine Tucker, Gilford, Ontario.
The following are the reasons for judgment
rendered in English by
MARCEAU J. (dissenting): This is an application
by the Attorney General, pursuant to section 28 of
the Federal Court Act, [R.S.C. 1970 (2nd Supp.),
c. 10], to review and set aside the decision of
Madam Justice Reed, sitting as an Umpire under
the Unemployment Insurance Act, 1971 [S.C.
1970-71-72, c. 48], allowing an appeal brought by
the respondent against a decision of the Board of
Referees. The facts may be quickly summarized
but, to appreciate the issues, it will be necessary to
look at the words used by the Referees in certain
passages of their decision and then review closely
the reasons given by the Umpire in support of her
conclusion.
On October 27, 1982, the respondent, who was
employed by Canadian Pacific Airlines as a flight
attendant, was suspended without pay pending an
investigation into her conduct while at work. The
investigation revealed that indeed she had been
intoxicated during a flight and incapable of per
forming her duties. As a result of negotiations
between the employer and a union representative,
it was finally agreed that the respondent would not
be discharged but would serve a suspension of four
months. The respondent, thereupon, applied for
unemployment insurance benefits for the period of
the suspension.
The Commission accepted the claim but notified
the respondent that the benefits would be suspend
ed for the first four weeks for which they would
otherwise be payable on the basis that she had lost
her employment by reason of her own misconduct
and a disqualification period had to be imposed
under subsection 41(1) of the Act which reads as
follows:
41. (1) A claimant is disqualified from receiving benefits
under this Part if he lost his employment by reason of his own
misconduct or if he voluntarily left his employment without just
cause.
The respondent appealed the Commission's ruling
to the Board of Referees. Appearing before the
Board, she pointed out, with respect to her poor
attendance record to which the employer had
alluded, that, at each occasion, she had submitted
"doctors' letters" and went on to explain that her
impairment on the flight in question was due to
the fact that she had taken medication (tranquiliz-
ers) not prescribed for her, asking, in the words of
the Board, "that her foolish behaviour not be
judged too severely as she had not intended to
neglect her duties." After a concise but complete
statement of the facts they considered relevant, the
Referees expressed their conclusion and decision as
follows:
CONCLUSION:
The Board weighed all the evidence presented and considered
that absenteeism with medical excuses could not be considered
misconduct. The Board considered the admission of impaired
performance during a flight as "admission of misconduct". The
Board considered the circumstances surrounding the event and
felt there were some extenuating circumstances involved.
DECISION:
It is the unanimous decision of the Board that the appeal be
DISALLOWED, however, the disqualification imposed under Sec.
41 & 43 of the Unemployment Insurance Act, 1971 be reduced
to 3 weeks.
The learned Umpire wrote lengthy reasons in
support of her conclusion that the appeal of the
respondent against the decision of the Board was
well founded but her reasoning can be reviewed
and summarized by referring to the essential pas
sages thereof.
The Umpire begins her analysis by raising the
question of whether the Board had considered, in
coming to its decision, "that there must be a
wilfulness in order to find misconduct." She notes
that "the record does not disclose to me that the
Board did address its mind to this crucial
point ..." and that "there is no indication that the
Commission drew to the Board's attention the fact
that impairment alone might not be sufficient to
demonstrate misconduct ..." (page 4 of the rea
sons), and then writes (page 5):
I cannot conclude from the record, as it stands, that the Board
addressed itself to the claimant's mental intention. Accordingly,
this is an appropriate case for me to consider the claimant's
case, and render a decision pursuant to section 96 of the
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, as
amended.
Having thus concluded that it was open to her to
give the decision that should have been given by
the Board of Referees, the Umpire speaks of the
"foolishness", readily acknowledged by the
respondent herself, of the act of taking medication
prescribed for someone else but points out that,
nevertheless, the respondent had become impaired
unintentionally. There could be no misconduct
therefore, since, she declares (page 8):
... 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. No
such wilfulness was present in this case.
As her final disposition, the Umpire simply allows
the appeal, meaning obviously that it was not only
the decision of the Board that was thereby set
aside but also the ruling of the Commission.
In his application herein, the Attorney General
adopts two lines of attack against the decision of
the Umpire. One is that the Umpire exceeded her
jurisdiction in substituting her view of the facts of
the case for that of the Board of Referees, and the
other, that the Umpire erred in law in defining as
she did the word "misconduct" in subsection 41(1)
of the Act. While the latter criticism does not
appear to me completely justified, the former one,
in my view, is definitely so.
1. The applicant contends that in defining the
word "misconduct" as used in subsection 41(1),
the Umpire has erroneously read into the provision
a qualification that was not there, that of volun-
tariness or wilfulness. The word misconduct in
itself does not require that the act referred to be
voluntary, he says, and if it had been intended that
it be so in this particular instance the phrase
"wilful misconduct" would have been used. I dis
agree. It may be that the English word "miscon-
duct" has no necessary connotation of voluntari-
ness or wilfulness, but I do not think the same can
be said of the corresponding word in the French
version of the text, the word "inconduite". Besides,
the context requires that the word be understood
with such connotation, since the purpose of the
provision is to impose a penalty, and no one would
think of punishing an individual for something
done without his free will.
I am of the opinion, however, that the Umpire
went too far in her characterization of the volun-
tariness required when she said 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." Not only
does it appear clear to me that the spirit behind
the statement was unduly influenced by preoccu
pations attached to the criminal law, I even have
difficulty with the meaning of the statement itself,
when the practical components of human behavi
our are taken into account. It seems to me that one
should not confuse a certain action and the effects
thereof. Only the action needs to be wilful to
constitute misconduct, and it may be so even if the
effects are not intended. Impairment is not an
action, it is the effect of an action. Besides, when
reference is made to the "conduct" of an individu
al, most of the time, what is referred to is not a
single action but a series of actions somehow
linked to one another, and the conduct itself may
certainly be seen as wilful even if some of these
interrelated actions come about as a necessary
consequence of preceding ones and as such are not
themselves dictated by volition. A few simplistic
illustrations will show what I mean. It was not my
intention to bump into someone walking on the
sidewalk, but it happened because, going out of the
house, I rushed through the door without first
making sure that the way was clear, or it happened
because I had been running with my eyes closed. I
fail to see, in everyday instances of this type, which
act is the one referred to in the test suggested by
the Umpire. In my view, the concept of miscon
duct is applicable to any behaviour, abnormal in
itself or regrettable in its effects, for which a
person may be to blame; and its application
requires the consideration of all surrounding cir
cumstances, such as, in the case of an employee,
the nature of his duties, his intention at the time of
the incident, the certainty, probability or mere
possibility, immediate or remote, that his ability to
satisfactorily perform his duties would be affected
or that unfortunate consequences would ensue, the
gravity of those consequences, etc. So a practical
and moral judgment based on totality of the cir
cumstances is involved. And with this observation
in mind, I pass on to my second and main point.
2. It seems to me, as I read the reasons of the
Board, that the Referees did exactly what they
were called upon to do, that is to say, give their
opinion as to whether, in view of all the circum
stances, the respondent could incur reproaches for
her unusual behaviour. It may be said that a
question of law was involved in the sense that a
word used in a provision of law had to be properly
understood in context (see on this point the com
ments of Stone J. in Deputy Minister of National
Revenue for Customs and Excise v. GTE Sylvania
Canada Limited, a recent judgment of this Court,
dated December 11, 1985, A-539-83, not yet
reported). I do not think, however, that the word
here was intended to be given any meaning other
than its usual and ordinary one—which renders
the question of law quite an inconsequential one—
and, above all, I see nothing in the statements of
the Board which could lead to the conclusion that
it misunderstood the meaning of the provision. As
seen above, the learned Umpire's censure is merely
based on the fact that she "cannot conclude from
the record, as it stands, that the Board addressed
itself to the claimant's mental intention". One may
very strongly disagree with such an assumption
since the consideration of the mental disposition of
the respondent appears to be the only possible
reason for which the Board could intervene as it
did to reduce, from four to three, the number of
weeks of disentitlement. But, in any event, what
the Umpire in effect says is that she cannot be sure
that the Board has not committed an error. This
appears to me a complete reversal of the presump
tion of validity that must attach to all decisions of
first instance particularly those open to only lim
ited review such as the decisions of the Boards of
Referees under the Act.' The mere possibility or
even concern that an error may have been commit
ted by the Board does not entitle the Umpire, in
my respectful opinion, to proceed to a reconsidera
tion of the facts and to substitute his or her
appreciation for that of the Referees. To be able to
infer, from a mere lack of clear explanation as to
their understanding of the law, that the Referees
had committed an error, the Umpire, I think, had
to be satisfied that, on the facts of the case, no
reasonable person apprised of the law could have
I I reproduce for convenience the applicable section [as am.
by S.C. 1976-77, c. 54, s. 561:
95. An appeal lies as of right to an umpire in the manner
prescribed from any decision or order of a board of referees at
the instance of the Commission, a claimant, an employer or an
association of which the claimant or employer is a member, on
the grounds that
(a) the board of referees failed to observe a principle of
natural justice or otherwise acted beyond or refused to
exercise its jurisdiction;
(b) the board of referees erred in law in making its decision
or order, whether or not the error appears on the face of the
record; or
(c) the board of referees based its decision or order on an
erroneous finding of fact that it made in a perverse and
capricious manner or without regard for the material before
it.
reached the conclusion they arrived at. It is to me
obvious (as it was, no doubt, to the union repre
sentative who negotiated the four-month suspen
sion!) that that was not the case.
With all due respect for the opposite view, I
think that the Umpire was not entitled to intervene
here and that her decision should not be allowed to
stand. The matter should be referred back to her
for reconsideration on the basis that there is no
ground on which the decision of the Board could
be impeached.
* * *
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.: This section 28 application is
taken against a decision of Madam Justice Reed
acting as an Umpire under section 95 of the
Unemployment Insurance Act, 1971 ("the Act").
The claimant in this case, a flight attendant
with CP Air, was suspended by her employer for
four months for having been impaired during the
course of a flight as a result of taking tranquilizers
not prescribed for her. She was disqualified under
section 41 of the Act by the Unemployment Insur
ance Commission ("the Commission") from
receiving unemployment insurance benefits for
four weeks. A Board of Referees unanimously
upheld her disqualification from benefits but
reduced it from four weeks to three. Reed J.
allowed her appeal against the disqualification.
The grounds of an appeal to an Umpire under
section 95 are substantially identical with those
under section 28 of the Federal Court Act. Having
found an error in law by the Board of Referees
under paragraph 95(b), Reed J. exercised her
powers under section 96 to give the decision on the
facts that in her opinion the Board of Referees
should have given.
Subsection 41(1) of the Act under which the
disqualification was imposed is as follows:
41. (1) A claimant is disqualified from receiving benefits
under this Part if he lost his employment by reason of his own
misconduct or if he voluntarily left his employment without just
cause.
The relevant part of Reed J.'s decision was as
follows:
In order to determine whether misconduct occurred in the
present case, one must look to the general legal principles
respecting that concept as it relates to employee-employer
relationships. In this regard, I note that in the text by Innis
Christie, on Employment Law in Canada (1980) it is stated, at
page 361:
It is clear that a breach of some of the implied obligations of
the employee is more serious than the breach of others.
... Dishonesty aside, the courts seem to be prepared to
accept that employees are human; they may get ill and be
unable to fulfil their obligations and they may make mistakes
under pressure or through inexperience.
Black's Law Dictionary (1979, 5th Ed.) says of misconduct:
... its synonyms are misdemeanour, misdeed, misbehavior,
delinquency, impropriety, mismanagement, offense, but not
negligence or carelessness.
Misconduct, which renders discharged employee ineligible
for unemployment compensation, occurs when conduct of
employee evinces willful or wanton disregard of employer's
interest, as in deliberate violations, or disregard of standards
of behavior which employer has right to expect of his
employees, or in carelessness or negligence of such degree or
recurrence as to manifest wrongful intent ...
While the second excerpt above does not relate to the
Canadian Unemployment Insurance Act, 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. No such wilfulness
was present in this case.
The applicant argues, on the authority of Lord
Reid in Brutus v. Cozens, [1973] A.C. 854 (H.L.),
at page 861, that "the meaning of an ordinary
word of the English language is not a question of
law", that the ordinary meaning of the word "mis-
conduct" does not require that the misconduct be
wilful, and that the Umpire therefore erred in law
in defining the word misconduct as she did.
It seems to me, however, that this question was
put to rest by this Court in Attorney General of
Canada v. Bedell, A-1716-83, decided June 8,
1984, unreported, where Stone J. for the Court
said [at page 4] of the very same subsection under
consideration here that "The construction of the
word `misconduct' is a question of law." Moreover,
Stone J., in delivering the reasons for decision of
this Court in the more recent case of Deputy
Minister of National Revenue for Customs and
Excise v. GTE Sylvania Canada Limited,
A-539-83, decided December 11, 1985, puts in
perspective the words of Lord Reid in the Brutus
case [at pages 12-13]:
The contextual approach to statutory construction is firmly
established. It was put in this way by Stamp J. in Bourne
(Inspector of Taxes) v. Norwich Crematorium, Ltd., [1967] 2
All E.R. 576 (Ch.D.), at page 578:
English words derive colour from those which surround them.
Sentences are not mere collections of words to be taken out
of the sentence, defined separately by reference to the dic
tionary or decided cases, and then put back again into the
sentence with the meaning which you have assigned to them
as separate words, so as to give the sentence or phrase a
meaning which as a sentence or phrase it cannot bear
without distortion of the English language.
Its application is well illustrated by the case of R v National
Insurance Comr, ex parte Secretary of State for Social Ser
vices, [1974] 3 All ER 522 (Q.B.D., Div. Ct.). There, a
statutory tribunal had to construe the word "night" in a context
which read: "... he is so severely disabled physically or mental
ly that he requires from another person, in connection with his
bodily functions, frequent attention throughout the day and
prolonged or repeated attention during the night ...." Two
years earlier, in Brutus v. Cozens, [1972] 2 All ER 1297;
[1973] A.C. 854, the House of Lords had decided (per Lord
Reid, at page 861 A.C.; at page 1299 All ER) that the meaning
of an ordinary word of the English language is not a question of
law although the proper construction of a statute is such a
question. The reasoning of Lord Widgery C.J., speaking for the
Court (at page 526), commends itself to me:
Now as to the construction of the section, it is important to
remember the words of Lord Reid in Brutus v. Cozens,
[1972] 2 All ER 1297, [1973] A.C. 854. In that case Lord
Reid was considering the meaning of the word `insulting' in a
statute with which this court is more familiar than the
statute now under consideration. He observed that the giving
of a meaning to an ordinary English word is not a question of
law at all, but of course the construction of a statute is a
question of law. In regard to those matters, I take warning
from what Lord Reid said that in considering here what is on
the face of it an ordinary English word `night' prima facie
the giving of a meaning to that word is not a matter of law at
all. However, though `night' is one of the commonest English
words in its ordinary usage, it does have different shades of
meaning and the decision of the correct shade of meaning to
give to the word in a particular context requires consider
ation of the context and thus becomes a matter of construc
tion and therefore a matter of law. (Emphasis added.)
A court is not a lexicographer and is no greater
authority on ordinary usage than any other student
of language. But it is an official interpreter of
statutes, and when a word appears in a statutory
context, it is for a court to interpret that word as a
matter of law. Of course, as Stone J. wrote [at
page 4] in the Bedell case, supra, "Whether a
particular act or omission on the part of an
employee is of such a nature as to fall within it is a
question of fact", but that is to say that a complete
judgment as to the application of the statute in a
particular instance is a question of mixed law and
fact, not that it is a question of fact alone. The
construction of a statutory word is a matter of law;
its application to particular facts a matter of fact.
In the case of subsection 41(1) of this Act, all of
the considerations I have been able to isolate sup
port Madam Justice Reed's interpretation. There
is, first, the definition from Black's Law Diction
ary with its emphasis on "willful or wanton disre
gard of employer's interest." There are the modi
fying personal pronouns "his own" before
misconduct, which imply responsibility and so
intentionality or recklessness. There is the parallel
ism with the requirement of "voluntarily" leaving
his employment without just cause. There is the
French phrase "sa propre inconduite", with a
similar connotation to that of the English phrase.
Finally, and perhaps most important, there is the
rationale of the whole provision, which is to impose
a disqualification as a kind of "punishment" for
undesirable conduct which falls short of the true
unemployment the Act intends to benefit. The
most the applicant was able to come up with on
the other side was one dictionary definition that
was ambiguous on the point. I have no hesitation
in concluding that Reed J. correctly interpreted
subsection 41(1) as requiring for disqualification a
mental element of wilfulness, or conduct so reck
less as to approach wilfulness.
The applicant argued, alternatively, that the
Board of Referees committed no error of law in its
decision. The operative part of that decision is as
follows:
STATEMENT OF FACTS:
The claimant was present as was Mr. Day, representative of the
Union. The claimant agreed that she had been impaired during
the flight in question and that she had not been capable of
performing her duties. She said she had not been relieved of her
duties during the flight and had not been approached about her
behaviour by her supervisor until the return flight home the
next day. The claimant said her attendance record had been
poor but it had all been occasions for which she had submitted
doctors letter [sic] and for which she had been granted leave.
The claimant claimed that she had used poor judgment in
taking medication not prescribed to her which had caused her
impairment. She asked that her foolish behaviour not be judged
too severely as she had not intended to neglect her duties.
CONCLUSION:
The Board weighed all the evidence presented and considered
that absenteeism with medical excuses could not be considered
misconduct. The Board considered the admission of impaired
performance during a flight as "admission of misconduct". The
Board considered the circumstances surrounding the event and
felt there were some extenuating circumstances involved.
DECISION:
It is the unanimous decision of the Board that the appeal be
DISALLOWED, however, the disqualification imposed under Sec.
41 & 43 of the Unemployment Insurance Act, 1971 be reduced
to 3 weeks.
The material facts upon which the Board makes
it clear that it founds its conclusion appear to be as
follows: (1) the claimant's admission of impair
ment during the flight in question; (2) her denial
of incapacity to perform her duties during that
flight; (3) her admission of poor judgment in
taking medication not prescribed to her; (4) her
plea that her foolish behaviour not be judged too
severely. In sum, she admitted the fact of impair
ment but denied the requisite mental element of
misconduct ("she had not intended to neglect her
duties").
On the basis of these facts the Board concludes
that her admission of impaired performance
during a flight was an admission of misconduct.
Since her admission was an admission of a fact
only, and not of the requisite mental state, the only
meaning that can be given to the Board's conclu
sion is that the Board considered proof of a mental
element unnecessary. This is to read subsection
41(1) as the applicant urged, as not requiring
wilfulness or recklessness. As I have already
indicated this is a misinterpretation of subsection
41(1) and is thus an error of law on the part of the
Board.
Once the Umpire has correctly found an error of
law by the Board, the question as to whether there
was evidence before the Board which could reason
ably allow it to come to the conclusion it did no
longer arises. Under section 96 of the Act the
Umpire is herself entitled to give the decision she
believes the Board should have given.
I would therefore dismiss the appeal.
STONE J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.