EMPLOYMENT INSURANCE |
Canada (Attorney General) v. Johnson
A-296-03
2004 FCA 100, Malone J.A.
11/3/04
6 pp.
Judicial review of Umpire's decision finding respondent's dismissal from employment because found sleeping on the job did not constitute misconduct--Whether respondent lost employment by reason of his own misconduct so as to preclude claim for benefits pursuant to Employment Insurance Act (Act), s. 30(1)--Legal test for establishing misconduct under Act set out in Canada (Attorney General) v. Tucker, [1986] 2 F.C. 329 (C.A.)--Tucker analysis refined in Canada (Attorney General) v. Secours (1995), 179 N.R. 132 (F.C.A.): wrongful intent not required for behaviour to amount to misconduct; sufficient if wilful i.e. conscious, deliberate or intentional--By limiting definition of misconduct to wilful or deliberate action manifesting wrongful intent, Board of Referees failed to apply second branch of legal test established in Secours decision i.e. wrongful intent not required for act to be misconduct--Clearly error of law--Failure of Umpire to intervene to correct legal error pursuant to Act, s. 115(2) itself legal error--Focus should be whether, in falling asleep on break without taking steps to ensure would wake on time, respondent had necessary mental element--Application allowed--Employment Insurance Act, S.C. 1996, c. 23, ss. 30(1), 115(2).