EMPLOYMENT INSURANCE |
Locke v. Canada (Attorney General)
A-72-02
2003 FCA 262, Evans J.A.
9/6/04
5 pp.
Judicial review of Umpire's decision allowing appeal by Canada Employment Insurance Commission from Board of Referees--Board allowed applicant's appeal from Commission's rejection of claim for employment insurance benefits on ground he was disqualified since lost employment because of his misconduct--Applicant summarily dismissed without warning for smoking marijuana at end of his shift, but before punching out, outside plant where he had worked for 8 years as labourer--Board allowed appeal on ground that smoking joint of marijuana in circumstances of this case not misconduct within meaning of Employment Insurance Act, s. 30(1) because not wilful or reckless--Umpire reversed Board's decision, finding that company policy was that employee may be dismissed for using intoxicants at work, and applicant's misconduct wilful or reckless since illegal and contrary to company policy--Umpire erred in law in reversing Board's decision--Issue applicant's state of mind: did he believe or was he wilfully blind to fact likely to be dismissed if caught smoking marijuana on company premises after finished working?--Question of pure fact and, as such, could only be subject to successful appeal to Umpire under Act, s. 115(2)(c)--Applicant testified unaware company policy to dismiss employees caught using intoxicants at work--In light of fact other employees not dismissed after getting caught smoking marijuana, applicant's behaviour not such fundamental breach of employer/employee relationship that any employee must have known that, if apprehended, likely to be dismissed without warning--Hence, not patently unreason-able for Board to conclude on evidence before it Commission had failed to establish on balance of probabilities applicant either knew or was reckless in not knowing he was likely to be dismissed for smoking marijuana on company premises after finishing work--Application allowed-- Employment Insurance Act, S.C. 1996, c. 23, ss. 30(1), 115(2)(c).