Date: 19990211

Docket: A-170-98

CORAM:      LINDEN J.A.

         LÉTOURNEAU J.A.

         SEXTON J.A.

BETWEEN:     

THE ATTORNEY GENERAL OF CANADA

Applicant

- and -

DIANE MORROW

Respondent

Heard at Toronto, Ontario, Thursday, February 11, 1999

Judgment delivered from the Bench

at Toronto, Ontario on Thursday, February 11, 1999

REASONS FOR JUDGMENT OF THE COURT BY:      LÉTOURNEAU J.A.

Date: 19990211

Docket: A-170-98

CORAM:      LINDEN J.A.

         LÉTOURNEAU J.A.

         SEXTON J.A.

BETWEEN:     

THE ATTORNEY GENERAL OF CANADA

Applicant

- and -

DIANE MORROW

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario on

Thursday, February 11, 1999)

LÉTOURNEAU J.A.

[1]      We are of the view that this application for judicial review should succeed.

[2]      The Board of Referees (the "Board") instructed itself correctly in law and applied the proper test in determining that the respondent had lost her employment because of her misconduct. The Board was satisfied by the evidence adduced before it that the disciplinary record of the respondent, her job performance, her work attitude toward the patients and her attendance record are the essential facts that led to her dismissal. The Board also looked at the Settlement Agreement reached between the respondent and her employer which redefined the respondent's termination of employment to voluntary resignation and provided for the sealing of her personal file. It was satisfied that nothing in the agreement altered the essential facts which led to the termination of the respondent's employment.

[3]      The Board's findings were findings of fact not only based on all the evidence before it, but also supported by that evidence. As this Court said in Canada (Attorney General) v. Boulton¹:

before a settlement agreement can be used to contradict an earlier finding of misconduct, there must be some evidence in respect of the misconduct which would contradict the position taken by the employer during the investigation by the Commission or at the time of the hearing before the Board.

[4]      We see no such evidence in the present instance and, therefore, the Umpire had no valid grounds for interfering with the Board's decision on this issue.

[5]      For these reasons, the application for judicial review will be allowed, the decision of the Umpire will be set aside and the matter will be referred back to the Chief Umpire or to an Umpire designated by him for a redetermination on the basis that the respondent's appeal be dismissed.

                             "Gilles Létourneau"

J.A.

              FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

DOCKET:                      A-170-98

STYLE OF CAUSE:             THE ATTORNEY GENERAL OF CANADA

Applicant

- and -

DIANNE MORROW

Respondent

DATE OF HEARING:             THURSDAY, FEBRUARY 11, 1999

PLACE OF HEARING:             TORONTO, ONTARIO

REASONS FOR JUDGMENT

OF THE COURT BY:             LÉTOURNEAU J.A.

Delivered at Toronto, Ontario

on Thursday, February 11, 1999

APPEARANCES:                  Ms. Helen Park

                    

For the Applicant

Ms. Diane Morrow

                             For the Respondent

SOLICITORS OF RECORD:          Morris Rosenberg

Deputy Attorney General of Canada

For the Applicant

                        Diane Morrow

841, 15th Street

Owen Sound, Ontario

N4K 5N9

                             For the Respondent

---

FEDERAL COURT OF APPEAL

Date: 19990211

Docket: A-170-98

BETWEEN:

THE ATTORNEY GENERAL OF CANADA

Applicant

- and -

DIANNE MORROW

Respondent

REASONS FOR JUDGMENT

OF THE COURT

__________________

     ¹      (1996) 208 N.R. 63, at p. 68 (F.C.A.).