Canada (Attorney General) v. McNamara, (2007) 366 N.R. 201 (FCA)

• Judge: Desjardins, Létourneau and Ryer, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: March 14, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 366 N.R. 201 (FCA);2007 FCA 107;366 NR 201;[2007] FCJ No 364 (QL)

Can. (A.G.) v. McNamara (2007), 366 N.R. 201 (FCA)

MLB headnote and full text

Temp. Cite: [2007] N.R. TBEd. MR.057

The Attorney General of Canada (applicant) v. John McNamara (respondent)

(A-239-06; 2007 FCA 107)

Indexed As: Canada (Attorney General) v. McNamara

Federal Court of Appeal

Desjardins, Létourneau and Ryer, JJ.A.

March 14, 2007.

Summary:

McNamara secured employment through his union. His employer provided services to Syncrude. McNamara submitted to a drug test to gain access to Syncrude's job site. After he commenced working, the results of the test were returned with a positive result. Pursuant to Syncrude's policies, McNamara was not allowed access to the work site. The employer terminated McNamara's services. McNamara applied for unemployment benefits. A board of referees denied the application on the ground that McNamara had lost his employment because of misconduct. An umpire allowed McNamara's appeal on the basis that an act which occurred prior to securing employment was not evidence of misconduct that justified the termination of employment. The Attorney General of Canada appealed.

The Federal Court of Appeal allowed the appeal, set aside the umpire's decision and remitted the matter to the Chief Umpire or his designate for a redetermination on the basis that McNamara lost his employment because of misconduct and, therefore, was not entitled to receive benefits.

Unemployment Insurance - Topic 1705

Claims - Grounds for refusal - Misconduct or union activity - McNamara's employer provided services to Syncrude - McNamara submitted to drug testing to gain access to Syncrude's job site - After he commenced working, the test results were returned with a positive result - Pursuant to Syncrude's policies, McNamara was denied access to the work site - The employer terminated McNamara's services - A board of referees denied McNamara's application for unemployment benefits on the ground that he was dismissed because of misconduct (Employment Insurance Act, s. 30) - McNamara asserted that the conditions for drug testing had not been met and he was entitled to benefits because of Syncrude's and the employer's misconduct in wrongfully dismissing him - An umpire allowed McNamara's appeal, holding that an act which occurred prior to securing employment was not evidence of misconduct that justified dismissal - The Federal Court of Appeal allowed an appeal - Misconduct could result from an act or omission that occurred prior to taking the employment if that misconduct was the cause of the dismissal - McNamara renounced his right to claim a strict enforcement of Syncrude's policies by voluntarily submitting to drug testing - Further, the board's and umpire's role was not to determine whether the dismissal was wrongful, but to determine if the employee's acts or omission constituted misconduct.

Cases Noticed:

Smith v. Canada (Attorney General) (1997), 220 N.R. 130 (F.C.A.), refd to. [para. 14].

Canada (Attorney General) v. McNally Construction Inc. (2002), 291 N.R. 139; 2002 FCA 185, refd to. [para. 22].

Canada (Attorney General) v. Caul (2006), 354 N.R. 21 (F.C.A.), refd to. [para. 22].

Fakhari v. Canada (Attorney General) (1996), 197 N.R. 300 (F.C.A.), refd to. [para. 22].

Canada (Attorney General) v. Namaro (1983), 46 N.R. 541 (F.C.A.), refd to. [para. 22].

Canada (Attorney General) v. Jewell (1994), 175 N.R. 350 (F.C.A.), refd to. [para. 22].

Canada (Attorney General) v. Secours (1995), 179 N.R. 132 (F.C.A.), refd to. [para. 22].

Statutes Noticed:

Employment Insurance Act, S.C. 1996, c. 23, sect. 30 [para. 4].

Counsel:

Mark Heseltine, for the applicant;

Micah J. Field and Craig Madill, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant;

Blakely & Dushenski, Edmonton, Alberta, for the respondent.

This appeal was heard at Edmonton, Alberta, on March 12 and 14, 2007, by Desjardins, Létourneau and Ryer, JJ.A., of the Federal Court of Appeal. Létourneau, J.A., delivered the following judgment orally for the court on March 14, 2007.