Date: 19980921
Docket: A-562-97
CORAM: MARCEAU J.A.
LÉTOURNEAU J.A.
ROBERTSON J.A.
BETWEEN:
NEVILLE CRICHLOW
Appellant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia,
on Monday, September 21, 1998)
MARCEAU J.A.
[1] This application for judicial review is from a decision of an umpire acting under the authority of the Unemployment Insurance Act. In his decision, the umpire allowed the respondent"s appeal from the majority decision of the Board of Referees, and reinstated the decision of the Commission disqualifying the applicant from receiving benefits on the basis that he had lost his employment by reason of his own misconduct, pursuant to section 28 of the Act.
[2] We are all of the view that the application must succeed for the basic reason that the umpire had no reason to interfere with the majority decision of the Board as to the interpretation to be given to the facts and no jurisdiction to substitute his opinion for that of the Board as to the meaning of those facts.
[3] The Board, in our view, was perfectly entitled, on the basis of the evidence that was before it and, particularly, the oral evidence that it received, to conclude that the applicant had not committed the "misconduct" required for a disqualification under section 28 of the Act.
[4] There may have been sufficient reason to dismiss the applicant from his employment as professor of pastoral studies at the College of Emmanuel and St. Chad where he had taught since August 1, 1987. His admission to his Principal that, although he was married, he had developed a special relationship with a 37 year-old woman who had been a student at the college could, we are prepared to agree, although it is not for us to judge, be seen as rendering his continued presence on the college teaching staff undesirable. But the "misconduct" of section 28 is not to be assumed in all cases of legitimate dismissal and, more particularly, it is not to be assessed through the eyes of the Principal of a religious college. The question that was before the umpire was not, as he thought, whether there was evidence of misconduct in the view of the facts exposed by the Principal in his letter to the Commission. The question was, rather, whether the whole of the evidence could support the conclusion drawn by the Board that there had not been the misconduct required for disqualification. In the absence of any evidence that the "special relationship" had given rise to some concrete manifestation and had crossed the boundaries of a merely platonic mutual love, as firmly contended by the appellant and his "special friend," we do not accept that the view taken by the majority members of the Board, however unclearly written their published reasons for decision may have been, could be rejected by the umpire. A finding of misconduct, with the grave consequences it carries, can only be made on the basis of clear evidence and not merely of speculation and suppositions, and it is for the Commission to convince the Board, the pivotal body in the resolution of unemployment insurance disputes, of the presence of such evidence irrespective of the opinion of the employer.
[5] The application will be allowed, the decision of the umpire will be set aside and the matter will be referred back for reconsideration on the basis that there is no reason to interfere with the majority decision of the Board of Referees.
"Louis Marceau"
J.A.
Date: 19980921
Docket: A-562-97
CORAM: MARCEAU J.A.
LÉTOURNEAU J.A.
ROBERTSON J.A.
BETWEEN:
NEVILLE CRICHLOW
Appellant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Vancouver, British Columbia, on Monday, September 21, 1998.
Judgment rendered from the Bench on Monday, September 21, 1998.
REASONS FOR JUDGMENT OF THE COURT BY: MARCEAU J.A.
IN THE FEDERAL COURT OF APPEAL
Date: 19980922
Docket: A-562-97
BETWEEN:
NEVILLE CRICHLOW
Appellant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
OF THE COURT