Canada (Attorney General) v. Lemire, (2010) 415 N.R. 88 (FCA)

• Judge: Noël, Pelletier and Mainville, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: November 23, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 415 N.R. 88 (FCA);2010 FCA 314

Can. (A.G.) v. Lemire (2010), 415 N.R. 88 (FCA)

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Temp. Cite: [2010] N.R. TBEd. NO.054

Attorney General of Canada (applicant) v. René Lemire (respondent)

(A-51-10; 2010 FCA 314; 2010 CAF 314)

Indexed As: Canada (Attorney General) v. Lemire

Federal Court of Appeal

Noël, Pelletier and Mainville, JJ.A.

November 23, 2010.

Summary:

Lemire was summarily dismissed for violating company policy against selling contraband cigarettes on work premises. He was in uniform and in the parking lot, but his shift had not yet started. He was denied employment insurance benefits under s. 30 of the Employment Insurance Act because he lost his employment due to misconduct. A Board of Referees determined that there was no misconduct and Lemire was entitled to benefits. An Umpire affirmed the decision. The Attorney General sought judicial review.

The Federal Court of Appeal allowed the application and remitted the matter on the basis that Lemire was guilty of misconduct which disentitled him to employment insurance benefits.

Unemployment Insurance - Topic 1705

Claims - Grounds for refusal - Misconduct or union activity - Lemire sold contraband cigarettes in his employer's parking lot - He was in uniform, but his shift had not started - Lemire knew that company policy prohibited selling contraband cigarettes on work premises - Lemire was summarily dismissed - He was denied employment insurance benefits under s. 30 of the Employment Insurance Act because he lost his employment due to misconduct - A Board of Referees ruled that there was no "misconduct" where there was no criminal or penal complaint or conviction for the contraband sales, the sales were made before his shift started, the policy violation was not wilful, the illegal act did not affect Lemire's job as a delivery person, and the employer dismissed Lemire without first giving him a warning - The Federal Court of Appeal allowed the Attorney General's judicial review application and remitted the matter for redetermination on the ground that Lemire was guilty of misconduct which disentitled him to employment insurance benefits - Lemire was guilty of wilful misconduct under s. 30, where he knew or ought to have known that selling contraband cigarettes on work property, contrary to company policy, could foreseeably result in dismissal - No criminal or penal complaint or conviction was required for "wilful" misconduct - "Wilful" required a conscious, deliberate or intentional act, not wrongful intent - The Board was required to determine whether Lemire's actions constituted misconduct, not whether misconduct warranted dismissal or some less severe disciplinary measure.

Cases Noticed:

Budhai et al. v. Canada (Attorney General) (2002), 292 N.R. 379; 2002 FCA 298, refd to. [para. 8].

Mac v. Canada (Attorney General) (2008), 380 N.R. 203; 2008 FCA 184, refd to. [para. 8].

Canada (Attorney General) v. McNamara (2007), 366 N.R. 201; 2007 FCA 107, refd to. [para. 8].

Canada (Attorney General) v. Hallée (2008), 380 N.R. 298; 2008 FCA 159, refd to. [para. 8].

Canada (Attorney General) v. Roberge (2009), 402 N.R. 76; 2009 FCA 336, refd to. [para. 9].

Canada v. Tucker, [1986] 2 F.C. 329; 66 N.R. 1 (F.C.A.), refd to. [para. 11].

Mishibinijima v. Canada (Attorney General) (2007), 360 N.R. 296; 279 D.L.R.(4th) 121; 2007 FCA 36, refd to. [para. 11].

Canada (Attorney General) v. Secours (1995), 179 N.R. 132 (F.C.A.), refd to. [para. 13].

Canada (Attorney General) v. Granstrom, [2003] N.R. Uned. 279; 2003 FCA 485, refd to. [para. 13].

Canada (Procureur général) v. Brissette, [1994] 1 F.C. 684; 168 N.R. 60 (F.C.A.), refd to. [para. 14].

Canada (Procureur général) v. Cartier (2001), 284 N.R. 172; 2001 FCA 274, refd to. [para. 14].

Canada (Attorney General) v. Nguyen (2001), 284 N.R. 260; 2001 FCA 348, refd to. [para. 14].

Meunier v. Commission de l'emploi et de l'immigration du Canada et al. (1996), 208 N.R. 377 (F.C.A.), refd to. [para. 15].

Canada (Procureur général) v. Marion, [2002] N.R. Uned. 258; 2002 FCA 185, refd to. [para. 22].

Canada (Attorney General) v. Jolin (2009), 398 N.R. 375; 2009 FCA 303, refd to. [para. 23].

Statutes Noticed:

Employment Insurance Act, S.C. 1996, c. 23, sect. 115(2) [para. 10].

Counsel:

Chantal Labonté and Pauline Leroux, for the applicant;

Jean Guy Ouellete, for the respondent.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant;

Ouellet, Nadon et Associées, Montreal, Quebec, for the respondent.

This application was heard on November 4, 2010, at Montreal, Quebec, before Noël, Pelletier and Mainville, JJ.A., of the Federal Court of Appeal.

On November 23, 2010, at Ottawa, Ontario, Mainville, J.A., delivered the following judgment for the Court of Appeal.