The Honourable E.J. Houston, Q.C.
This appeal was heard at the City of Toronto on September 23, 1998.
The appellant was represented by Mr. Eric Tourikian. Ms. Jolanta Malicki, a barrister, represented the employer Imperial Oil Ltd., Ms. Jan
Rodgers appeared for the Commission.
The appellant lost his job with Imperial Oil on December 6, 1996 due to his alleged misconduct. The Board, in a unanimous decision upheld the finding of the Insurance Agent that the employee had been guilty of misconduct.
Mr. Tourikian filed written submissions dated September 14, 1998, marked Exhibit A-1 at the hearing of the appeal. Mr. Bhamre had previously filed a document dated January 17, 1997, marked Exhibit 10-1 to 10-4. It contains a complaint by him to the Human Right Commission.
Counsel for the employer filed a letter dated March 10, 1997, addressed to an officer with Ontario Human Rights Commission. The document, a detailed rebuttal to Mr. Bhamre's complaint and is marked Exhibit 17-1 to 17-18. Ms. Rhonda Jansen, a barrister and solicitor with Gowling, Strathy and Henderson, filed the factum of Imperial Oil Limited, dated July 24, 1998. Also in the file is a transcript of the tapes recorded at the hearing before the Board of Referees.
The Commission filed Exhibits 13-1 to 13-4, Representations of the Commission to the Board of Referees.
The employee claimant was fired for the following reasons (a) Contravention of the harassment-free work area policy, (b) unauthorized use of the Internet Gateway Imperial Oil assets, (c) telling untruths during the investigation.
In its conclusion on Exhibit 18-3, the Board wrote:
The claimant used the employer's electronic mail system for personal messages, as many as 250 notes (Exhibits 6 and 7). this is against company rules; the system is intended for business purposes only.
The employer has access to the claimant's electronic messages, note log, and stated some that were created and forwarded by the claimant could be considered sexist and racist by certain groups of people (Exhibit 8-2). This is against the company policy of a harassment-free work area (Exhibit 6). Further examples of these notes are contained in Exhibit 17.
The claimant was aware of the company's policies regarding the use of electronic mail and internet system.
The Board concludes that the claimant lost his employment as a result of his own misconduct and as a result is disqualified from receiving benefits for an indefinite period for each week in the benefit period following the waiting period (subsection 30(2) of the Employment Insurance Act).
The appellant was a Programmer Analyst in the Processing and Networks Department at Imperial Oil. He had access to the E-mail system. To say the least some of the notes distributed on the system were obscene. one example is reproduced in Exhibits 17-3 and 17-4.
As subject: The "gift". It is not necessary to print the contents but an unprejudicial reader would find the contents offensive.
The arguments of Mr. Tourikian have been considered by this Umpire. In his written submissions was included a decision of another Board of Referees, concerning another employee of Imperial Oil, Eunice Koo. The decision is dated May 13, 1997. the Board allowed the appeal. The evidence was different than in the case at bar. Each case must depend on the facts in that case.
Imperial Oil had a clear policy that its E-mail system was to be used for business purposes only. The claimant was aware of this policy.
The word misconduct has been interpreted in the case law in many decisions and judgments of the Federal Court of Appeal. In Black's law Dictionary, sixth edition, at page 999, misconduct is defined as "a transgression of some established and definite role of action, a forbidden act, a dereliction of duty. The author adds "see its synonyms". It is true that misconduct has taken on a different meaning in unemployment insurance law. Nevertheless, the criminal law concept of mens rea which is mentioned in some judgments is not to be considered in deciding whether there is or is not misconduct.
Mr. Justice Marceau's dissenting judgment in Tucker  2 F.C. 329, A-381-85, has been quoted many times. In the judgment issued by the Court at the top of page 16 in A-381-85, the learned jurist says:
... the purpose of the provision is to impose a penalty, and no one would think of punishing an individual for something done without his free will.
Further down the page Mr. Justice Marceau says, inter alia:
It seems to me that one should not confuse a certain action and the effects thereof. Only the action needs to be wilful to constitute misconduct, and it may be so even if the effects are not intended.
In this Umpire's opinion, the law is correctly stated by Mr. Justice Letourneau for the Court in Attorney General of Canada v. Michel Brissette, A-1342-92. At page 4, commencing at the second full paragraph the learned Justice says:
It is true, as counsel for the respondent contends, and as it was expressed in Tucker (supra), that in order for the conduct in question to constitute misconduct within the meaning of section 28 of the Act, it must be wilful or deliberate or so reckless as to approach wilfulness. The assertion made in Tucker, is not, however, as absolute as counsel contends, particularly when viewed both in the context of the actual facts of the case and in the context in which it appears in the judgment: it comes at the end of and summarizes a discussion of the issue in which considerably more nuance is apparent. This may be seen in the following passage, which precedes that assertion, at page 341:
"In the case of subsection 41(1) of the Act, all of the considerations I have been able to isolate support Madam Justice Reed's interpretation. There is, first, the definition from Black's Law Dictionary with its emphasis on 'wilful or wanton disregard of employer's interest.' There are the modifying personal pronouns 'his own' before misconduct, which imply responsibility and so intentionality or recklessness. There is the parallelism with requirement of 'voluntarily' leaving his employment without just cause. There is the French phrase "sa propre inconduite", with a similar connotation to that of the English phrase. Finally, and perhaps most important, there is the rationale of the whole provision, which is to impose a disqualification as a kind of 'punishment' for undesirable conduct which falls short of the true unemployment the Act intends to benefit."
At page 7, commencing at the first full paragraph, he says:
On this point, we would recall that counsel for the respondent contended that the loss of employment was caused by the loss of the driver's licence. In our view, concluding that the loss of employment resulted from the loss of the licence and not from the licence-holder's misconduct amounts to indulging in too narrow an analysis and interpretation of the situation and interpretation of the situation and of subsection 28(1) of the Act. Take, for example, the case of an employee who deliberately and systematically violates the conditions of his or her employment, right in the workplace, with the result that the exasperated employer dismisses the employee. Can it seriously be argued that the employee was dismissed not for misconduct, but merely for failure to comply with the conditions of his or her employment? Clearly, we must examine the cause of the failure to comply with the conditions of the employment. An employee may fail to comply with the conditions of the employment because he or she is ill or incompetent, has no operating licence or is misbehaving.
In addition to the causal relationship, the misconduct must be committed by the employee while he or she was employed by the employer, and must constitute a breach of a duty that is express or implied in the contract of employment (Attorney General of Canada v. Nolet (F.C.A. no. A-517-91, March 19, 1992)).
In this appeal, the employer was in breach of the contract of employment, express or implied. He knew the rules and he broke them.
The Board made no reviewable error. The hearing was fair and without bias. The evidence was properly considered and there was no misapplication of it. The law was properly interpreted.
The suggestion by the appellant, that his dismissal was racially motivated is not supported by the evidence.
The appeal is dismissed.
E. J. HOUSTON
October 2, 1998