BETWEEN:
THE ATTORNEY GENERAL OF CANADA
and
Heard at Winnipeg, Manitoba, on May 9, 2007.
Judgment delivered from the Bench at Winnipeg, Manitoba, on May 9, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: RICHARD C.J.
Docket: A-294-06
Citation: 2007 FCA 183
CORAM: RICHARD C.J.
LINDEN J.A.
RYER J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
JULIA COURCHENE
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Winnipeg, Manitoba by the Chief Justice on May 9, 2007)
[1] This is an application by the Attorney General of Canada for an order to set aside the decision of the Honourable Paul Rouleau, dated May 31, 2006, (CUB65901) which he rendered in his capacity as an Umpire appointed under the Employment Insurance Act, S.C. 1996, c. 23 (the “Act”). In his decision, the Umpire allowed the appeal of Julia Courchene from the decision of the Board of Referees, dated November 2, 2005, that she lost her employment by reason of her own misconduct and as a result, that she was disqualified indefinitely from receiving benefits by virtue of sections 29 and 30 of the Act.
[2] The Umpire allowed in evidence Minutes of Settlement which were not before the Board.
[3] The applicant argues that the Minutes of Settlement are inadmissible before the Umpire since they existed prior to the hearing of the Board. Whether the Minutes of Settlement constituted “new facts” or a material fact that was unknown to the Board of Referees at the time of their decision, the decision of the Umpire to admit the Minutes of Settlement into evidence was permissible under section 120 of the Act. In relation to the appropriate approach to be accorded to the admission of new evidence by an Umpire, we would refer to the decision of this Court in Gilles Dubois v. Canada Employment Insurance Commission and Attorney General of Canada, [1998] F.C.J. No. 768, 231 N.R. 119 at 129-121, in which Marceau J. states:
Suffice it to say that the Umpire refused to admit the new evidence based on a strict application of the principles established by the courts holding that on appeal or judicial review, new evidence implies that either the party involved was unaware of the evidence or it was impossible to produce the evidence, at the time of the hearing at first instance.
. . .
We must express serious reservations about the application by an Umpire of formal rules developed for the smooth functioning of the courts. The Umpire is one level in the process of the administration of the Unemployment Insurance Act, an eminently social piece of legislation, where claimants usually represent themselves and where the boards of referees sitting a first instance have no legal training. The principles of justice suggest that submissions by claimants should be accepted very liberally at all levels; in fact this very liberal approach is required by s. 86
[now section 120] of the Act.
[4] The Umpire concluded that Canada (A.G.) v. Boulton (1996), 208 N.R. 63 is authority for the proposition that a settlement agreement can constitute evidence that could rebut other evidence of misconduct in circumstances in which the settlement agreement provides for the reinstatement of the employee or provides for a meaningful amount of compensation for the employee. The Umpire found that the contents of the Minutes of Settlement in fact contradicted the employer’s assertion of misconduct.
[5] In my view, it was reasonable for the Umpire to conclude that the Minutes of Settlement “contradict a finding of misconduct on the claimant’s part.” As held in Boulton, 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 (para.10). I have reproduced below the portions of the Minutes of Settlement which, in my opinion, support the Umpire’s conclusion:
. . .
- The Employer withdraws its letter of termination dated.
- The Employer will pay to the Employee an amount equal to 12 weeks pay at her last regular rate of pay, less necessary deductions.
- The Employee will provide the Employer with a letter of resignation effective July 21, 2005, in wording as attached hereto as Schedule “A”, which will be placed on the Employee’s personnel file.
- The Employer will expunge from the Employee’s personnel file all documents imposing the discipline and termination which were the subject of the grievances.
. . .
8. The Employer will file an amended Record of Employment stating that her employment was terminated by mutual agreement.
. . .
10. The terms of these Minutes shall be without prejudice or precedent to the parties with respect to any existing or future matters arising between them, and shall be held in strict confidence except as may be required by law.
. . .
[6] These terms, taken together, can reasonably be understood to contradict a finding of misconduct on the part of the respondent. The letter of termination is replaced by a letter of resignation, the respondent’s personnel file is expunged to eliminate all information related to the grievance, the Record of Employment is amended to indicate that the employer was terminated by mutual agreement and, also of considerable significance, the respondent is given meaningful compensation (12 weeks pay after 1½ years of employment).
[7] Accordingly the application for judicial review will be dismissed with costs.
“J. Richard”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-294-06
STYLE OF CAUSE: The Attorney General of Canada v. Julia Courchene
PLACE OF HEARING: Winnipeg, Manitoba
REASONS FOR JUDGMENT OF THE COURT BY: Richard C.J.
Linden J.A.
Ryer J.A.
DELIVERED FROM THE BENCH BY: Richard C.J.
APPEARANCES:
|
Department of Justice Edmonton, AB
|
FOR THE APPLICANT
|
|
Winnipeg, MB
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Deputy Attorney General of Canada Ottawa, ON
|
FOR THE APPLICANT
|
|
Barristers & Solicitors Winnipeg, MB |
FOR THE RESPONDENT
|