A-371-78
Roger Boulianne (Applicant)
v.
The Honourable Mr. Justice Allison A. M. Walsh,
Canada Employment and Immigration Commis
sion and Deputy Attorney General of Canada
(Respondents)
Court of Appeal, Jackett C.J., Pratte J. and Hyde
D.J.—Montreal, December 13, 1978.
Judicial review — Unemployment insurance — Sum
received by applicant as out of court settlement of grievance
arising out of his dismissal — Whether or not Umpire's
decision, reversing a decision of the Board of Referees that it
was compensation for a slur on his reputation, holding that
sum was income within s. 172 of Unemployment Insurance
Regulations, should be set aside — Unemployment Insurance
Regulations, SOR/55-392 as amended by SOR/71-324, s.
172(2)(a) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 28.
APPLICATION for judicial review.
COUNSEL:
P. Grenier for applicant.
G. LeBlanc for respondents.
SOLICITORS:
Melançon, Hélie, Marceau, Grenier & Scior-
tino, Montreal, for applicant.
Deputy Attorney General of Canada for
respondents.
The following is the English version of the
reasons for judgment delivered orally by
PRATTE J.: Applicant is asking this Court to set
aside a decision of an Umpire pursuant to the
Unemployment Insurance Act, 1971, S.C. 1970-
71-72, c. 48, which reversed the decision of a
Board of Referees and held that an amount of
$5,000 which applicant had received from his
former employer was income from employment
within the meaning of section 172(2)(a) of the
Unemployment Insurance Regulations, SOR/55-
392 as amended by SOR/71-324.
Applicant was employed by a hospital centre.
On February 13, 1975, he was dismissed. Five
days later, the employer gave him the reason for
his dismissal in writing. In accordance with the
collective agreement governing his conditions of
employment, applicant submitted a grievance
against his dismissal, which he regarded as unlaw
ful and unjustified. The grievance was submitted
to arbitration and, on August 14, 1975, the arbi
tration tribunal decided that the grievance should
be allowed solely on the ground that the employer
had not, as provided by the collective agreement,
given applicant the reason for his dismissal within
four days after the dismissal. The tribunal accord
ingly ordered the employer to reinstate applicant
and to pay him the equivalent of the salary he had
lost by his dismissal from February 13, 1975
onwards, deducting, if applicable, wages paid else
where since that time.
The employer was planning to challenge this
award in the Superior Court when a settlement
was reached, on October 17, 1975, between the
parties. This agreement is contained in a document
which reads as follows:
THE PARTIES HERETO AGREE THAT:
(1) The employer, pursuant to the decision of the arbitration
tribunal presided over by Mr. Jean-Paul Lemieux, dated
August 14, 1975, grievance No. 9620, will not file a motion for
evocation in the Superior Court;
(2) Mr. Roger Boulianne and the aforementioned union will
withdraw grievance No. 9620, dated February 21, 1975, and
grievance No. 28526, dated September 18, 1975;
(3) Mr. Roger Boulianne will submit his resignation today, to
have effect from February 13, 1975;
(4) In view of the foregoing, and the fact that it is important to
avoid legal costs and costs of arbitration, the employer will pay
Mr. Roger Boulianne the sum of five thousand dollars ($5,000)
as compensation and/or damages, without however making any
admission thereby, and solely for the purpose of settling a legal
dispute out of court;
(5) Mr. Roger Boulianne accordingly gives the Hôtel-Dieu de
St -Jérôme a complete and final release from any claim of any
nature whatsoever;
(6) This agreement is made without any admission by any
party whatsoever, solely to resolve a specific case, and may not
be used as a precedent.
The Commission held that the sum of $5,000
received by applicant pursuant to this settlement
constituted income of applicant within the mean
ing of section 172(2)(a) of the Regulations. Appli
cant appealed from this decision to the Board of
Referees. The Board concluded that the $5,000
had been paid to applicant to compensate him not
for a loss of wages, but for a slur on his reputation.
The Board accordingly "recommended" that the
amount in question not be considered applicant's
income. The Commission appealed to an Umpire
who, noting that the Board of Referees had only
made a recommendation, refused to hear the
appeal and returned the case to the Board for it to
make a decision; however, the Umpire expressed
the opinion that an "employee may not recover
damages in law for a slur on his reputation in the
case of a dismissal without good reason". The
Board, after hearing applicant, held that "this
$5,000 was awarded to him for defamatory libel".
Accordingly, it held that this amount did not
constitute income of applicant which should be
taken into account in determining his entitlement
to unemployment insurance benefits. The Commis
sion appealed from this second decision. No new
evidence was presented to the Umpire. The latter
decided the appeal on a record which contained
only the decision of the Board and the documen
tary evidence that had been before the Board; he
allowed the appeal and held that the $5,000 in
question had been paid to applicant to compensate
him for loss of wages, and should accordingly be
regarded as income. This is the decision from
which applicant is appealing here.
The recent decision of this Court in Attorney
General of Canada v. Walford [1979] 1 F.C. 768
established that amounts paid by the employer to a
former employee who has been dismissed without
notice constitute income for the employee within
the meaning of section 172(2)(a) of the Unem
ployment Insurance Regulations, provided that
such amounts have been paid to the employee to
compensate him for a loss of wages that resulted or
that may result from an unlawful dismissal. There
is no question here of disputing the validity of that
decision. In the case at bar, however, the Board of
Referees, after hearing applicant's testimony, con
cluded that he had received $5,000 to compensate
him for a slur on his reputation. This was a finding
of fact which the Umpire set aside without taking
into consideration applicant's testimony before the
Board, and without having himself heard applicant
or otherwise admitted new evidence on the point.
If the Trial Judge decided in this manner it would
seem that it was because, like the Umpire who
preceded him, he was of the opinion that an
"employee may not recover damages in law for a
slur on his reputation in a dismissal without good
reason". In my opinion, this view is erroneous. An
unlawfully dismissed employee may, as a result of
the circumstances in which he was dismissed, sus
tain damages other than the loss of wages (includ-
ing a slur on his reputation). In such a case, the
amounts paid to him to compensate him for these
other damages are not income within the meaning
of section 172 of the Regulations.
The finding of fact by the Board of Referees
that $5,000 was paid to compensate applicant for a
slur on his reputation was therefore not based on
any error of law. That being so, it could only be set
aside by the Umpire if, after hearing all relevant
evidence which the parties could present to him, he
concluded this finding was in fact erroneous.
For these reasons, I would allow the action and
return the case to the Umpire for him to decide it
on the assumption that it is possible, in law, for a
former employee to recover damages for a slur on
his reputation from the employer who unlawfully
dismissed him.
* *
JACKETT C.J. concurred.
* * *
HYDE D.J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.