Misconduct

II. Principles of Law

(c) Onus of proof

The onus lies on either the Commission or the employer to establish that the loss of employment by a claimant was "by reason of his own misconduct". In order to discharge that onus, the Board of Referees must be satisfied that the misconduct was the reason for the dismissal and not merely the excuse for it. This is a factual determination to be made after weighing all of the evidence. There must be sufficiently detailed evidence before the Board for it to determine how the employee behaved and whether the behaviour was reprehensible. Where there is doubt as to the alleged misconduct, it has not been proven that a claimant lost his or her employment for that reason.

Davlut v. Canada (A.G.) [1982], F.C.J. No. 398 (F.C.A.) A-241-82 Judgment Of The Federal Court Of Appeal
Joseph v. C.E.I.C., March 11, 1986, F.C.J. No. 169 (F.C.A.) A-636-85 Judgment Of The Federal Court Of Appeal
M.E.I. v. Bartone, January 18, 1989, F.C.J. No. 21 (F.C.A.) A-369-88 Judgment Of The Federal Court Of Appeal
Meunier v. C.E.I.C. [1996], F.C.J. No. 1347 (F.C.A.) A-130-96 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Langlois, February 21, 1996, F.C.J. No. 241 (F.C.A.) A-94-95 Judgment Of The Federal Court Of Appeal
Gauthier v. Canada (A.G.), November 10, 1998, F.C.J. No. 1704 (F.C.A.) A-6-98 Judgment Of The Federal Court Of Appeal

In order to establish misconduct, it must be shown that the employee should not have acted as he or she did. It is not enough to show that the employer considered the employee's conduct to be reprehensible or that the employer reprimanded the employee for behaving badly.

Joseph v. C.E.I.C., March 11, 1986, F.C.J. No. 169 (F.C.A.) A-636-85 Judgment Of The Federal Court Of Appeal

An employer's mere assurance that it believes the conduct in question is misconduct, and that it was the reason for termination of the employment, does not satisfy the onus of proof which rests upon the Commission. It is for the Board of Referees to assess the evidence and come to a decision. It is not bound by how the employer and employee or a third party might characterize the grounds on which an employment has been terminated.

It is not the role of the Board of Referees or the Umpire to determine whether the severity of the penalty imposed by the employer was justified or whether the employee's conduct was a valid ground for dismissal. Rather, it is to determine whether the employee's conduct amounted to misconduct within the meaning of the Act and whether this misconduct resulted in loss of employment.

In the interpretation and application of section 30 of the Employment Insurance Act, the focus is clearly not on the behaviour of the employer, but rather on the behaviour of the employee. This appears from the words “if the claimant lost any employment because of their misconduct.” There are, available to an employee wrongfully dismissed, remedies to sanction the behaviour of an employer rather than transferring the cost of the behaviour to Canadian taxpayers by way of unemployment benefits.

Canada (A.G.) v. McNamara, 2007 FCA 107 A-239-06 Judgment Of The Federal Court Of Appeal

A finding of misconduct can only be made on the basis of clear evidence and not merely of speculation and suppositions. It is for the Commission to convince the Board of Referees of the presence of such evidence irrespective of the opinion of the employer.

Crichlow v. Canada (A.G.), September 21, 1998, F.C.J. No. 1947 (F.C.A.) A-562-97 Judgment Of The Federal Court Of Appeal

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