WE v Canada Employment Insurance Commission

WE v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2025-12-19 Neutral citation 2025 SST 1433 Reference number GE-25-2935, GE-25-2936 Member Marc St-Jules Division General Division Decision Appeal allowed Decision Content [TRANSLATION] Citation: WE v Canada Employment Insurance Commission, 2025 SST 1433 Social Security Tribunal of Canada General Division – Employment Insurance Section Decision Appellant: W. E. Representative: Yvan Bousquet Respondent: Canada Employment Insurance Commission Decision under appeal: Canada Employment Insurance Commission reconsideration decision (761217) dated October 14, 2025 (issued by Service Canada) Tribunal member: Marc St-Jules Type of hearing: Videoconference Hearing date: December 9, 2025 Hearing participants: Appellant Appellant’s representative Decision date: December 19, 2025 File number: GE-25-2935 and GE-25-2936 On this page Decision Overview Matters I have to consider first Issue Analysis Conclusion Decision [1] The appeal is allowed. The Tribunal agrees with the Appellant. [2] The Canada Employment Insurance Commission (Commission) hasn’t proven that the Appellant lost his job because of misconduct (in other words, because he did something that caused him to lose his job). [3] This means that the Appellant isn’t disqualified from receiving Employment Insurance (EI) benefits.Footnote 1 Overview [4] The Appellant lost his job. [5] The Appellant was let go because the employer believes that he breached its policy on unexcused absences. [6] The Commission decided that the Appellant lost his job because of misconduct. Because of this, it decided that he is disqualified from receiving EI benefits. [7] The Commission acknowledges that there were inconsistencies in the dates the employer and the Appellant provided.Footnote 2 After review, it found that the employer had proven that the Appellant was absent from work as of August 20, 2024.Footnote 3 But, the Appellant had until August 29, 2024, to provide a medical certificate justifying his absence. He didn’t do that. [8] The Appellant and his representative are disputing this version of events. They acknowledge that he was absent but disagree on the dates. They are also disputing the fact that he didn’t tell his employer about the situation. The doctor’s note was also provided on September 4, 2024. Matters I have to consider first Representative’s objection about including some documents [9] The representative is asking for some documents in the file not to be considered. It is clear from the documents provided that the Commission considered both the issue of misconduct and the issue of unreported income. [10] The questions the Commission asked and the evidence in support of false or misleading statements are in the documents available to me.Footnote 4 [11] The representative argued that these factors could influence the Tribunal member because the alleged false statements aren’t part of the matter at issue.Footnote 5 He also said that the issue of false statements was changed or simply cancelled. And so, the Tribunal should not consider it. [12] After reading the file, I decided to keep it for now and talk about it at the hearing. [13] To reach this conclusion, it is important to note that it would be difficult to erase all traces of the other issue. For example, the representative disputed 18 pages. I acknowledge that these 18 pages have evidence that could undermine the Appellant’s credibility. But the Commission’s Integrity Services has the right to carry out this investigation. It was this department that collected information both about the possible false or misleading statement and the dismissal. As a Tribunal member, I know about some of the forms used and some of its procedures. This helps me know that this department carried out the investigation. There are also other factors before me that the representative didn’t mention. For example, the reconsideration request refers to a breach.Footnote 6 [14] I took note of this at the start of the hearing and told the representative that his objections would be noted. The representative didn’t ask that I recuse myself and didn’t argue that I would be biased because I know that false statements were possible. [15] I acknowledge that the representative didn’t make any allegations of bias against me. I find that I was justified in holding the hearing and keeping the file. If my decision showed that I was influenced by information on file, but not directly related to the issue before me, there would be recourse to the Tribunal’s Appeal Division. Joining of two appeals [16] The Commission gave two initial decisions.Footnote 7 Each decision is about the same dismissal. [17] After giving its reconsideration decision, the Commission issued two letters confirming each of its decisions.Footnote 8 It wasn’t stated that one letter replaced the other. [18] Because the representative provided both reconsideration decisions, two files were created with the Tribunal. [19] Because the appeals raise a common issue, I find it appropriate to join them. I asked both parties about this.Footnote 9 There were no objections. I find that this decision to join the files isn’t unfair to the parties.Footnote 10 Because of this, I find that the decision to join the files isn’t unfair to the parties.Footnote 11 Issue [20] Did the Appellant lose his job because of misconduct? Analysis [21] To answer the question of whether the Appellant lost his job because of misconduct, I have to decide two things. First, I have to determine why he lost his job. Then, I have to determine whether the law considers that reason to be misconduct. Why did the Appellant lose his job? [22] The reason for the Appellant’s dismissal isn’t in dispute. [23] The parties agree that the Appellant might have breached the employer’s absence policy. [24] Because I have no evidence or clear signs that would lead me to believe that this wasn’t the actual reason the Appellant was let go, I accept that he was let go because he was absent and didn’t provide a medical certificate justifying those absences in the time the employer considered acceptable. Is the reason for the Appellant’s dismissal misconduct under the law? [25] The reason for the Appellant’s dismissal isn’t misconduct under the law. [26] To be misconduct under the law, the conduct has to be wilful. This means that the conduct was conscious, deliberate, or intentional.Footnote 12 Misconduct also includes conduct that is so reckless that it is almost wilful.Footnote 13 The Appellant doesn’t have to have wrongful intent (in other words, he doesn’t have to mean to be doing something wrong) for his behaviour to be misconduct under the law.Footnote 14 [27] There is misconduct if the Appellant knew or should have known that his conduct could get in the way of carrying out his duties toward his employer and that there was a real possibility of being let go because of that.Footnote 15 [28] The Commission has to prove that the Appellant lost his job because of misconduct. It has to prove this on a balance of probabilities. This means that it has to show that it is more likely than not that he lost his job because of misconduct.Footnote 16 The parties’ facts and arguments [29] The Appellant was working in an industrial setting and testified that during his last week of work, he changed positions and had to stand for long periods. As a result, one of his legs started to swell. The situation got worse, and the swelling spread to other parts of his body. Because of this, he had to be absent from work. [30] This appeal is about the days the Appellant was absent, why he was absent, and the conversations the Appellant and his employer had. The Commission argues that he breached the absence policy. The Appellant and his representative are disputing this allegation. [31] The Commission acknowledges that there are many inconsistencies in the days stated.Footnote 17 It also said that this inconsistency is on the part of the employer and the Appellant. Here are examples. There are three Records of Employment (ROEs). The first two said that the Appellant was paid until August 23, 2024.Footnote 18 The third showed the last day paid as August 24, 2024.Footnote 19 On May 25, 2025, the employer said that the Appellant worked until August 23, 2024.Footnote 20 The employer and the Commission spoke on October 1, 2025.Footnote 21 From this conversation, the Commission wrote that the dismissal letter said that the Appellant had been absent since August 22, 2024. It is to be noted that no questions were asked about the last day worked shown on the ROE, or about why the employer had previously said that his last day of work was August 23, 2024. In their first conversation, the Appellant said his last day of work was August 23, 2024.Footnote 22 After that, the Appellant then seems to have said that his last day of work was August 20, 2024.Footnote 23 August 20, 2024, was in the document called [translation] “Chronological memo of events on cell phone reviewed with Mr. [Appellant].”Footnote 24 This document stated that the Appellant went back to work on August 22, 2024, to explain his health problem. He said that it was his new boss, M., who drove him from the factory to the human resources office so he could explain his situation and show photos of his condition. It was stated that the employer asked him to get a doctor’s note. The dismissal letter dated Thursday, August 29, 2024, said that the Appellant went six days without contacting his supervisors after August 22, 2024.Footnote 25 Because of that, he was let go. The medical certificate that the Appellant later provided said he could not work from August 20, 2024, to September 4, 2024.Footnote 26 [32] Based on this information, the Commission found that the Appellant had last worked on August 20, 2024.Footnote 27 It says that the medical certificate was an important factor in reaching this conclusion.Footnote 28 The Commission also says that there is inconsistent information about the people he reported his absence to. [33] The employer said that no one named M. is employed.Footnote 29 So, the Commission argues that the Appellant’s claim that M. drove him from the factory to the human resources office is unlikely. The Appellant also hasn’t provided any video or photos showing his health condition. It was after M.’s help that the Appellant said that he had shared a photo of his arm and foot. [34] The Commission argues that the Appellant was told that he needed to provide a medical certificate and that he had to do so before August 29, 2024. Because he didn’t provide this medical certificate until September 4 or 5, 2024, he was let go.Footnote 30 [35] The Commission also argues that the grievance settlement isn’t a factor it can consider.Footnote 31 The $7,500 payment the employer made doesn’t in any way prove that there was no misconduct. [36] The Appellant and his representative are disputing these allegations. They say that: The Appellant worked until August 23, 2024. They also say that he tried to provide a medical certificate, but the employer considered it unacceptable. They also say that the Appellant might be mistaken about M.’s name. The version of events and dates was established in the spring of 2025 and might not be fully accurate. He also allegedly worked with M. for only one week. The Appellant and his representative also argue that the employer knew about the situation. Also, being sick doesn’t constitute misconduct. Not being able to provide a doctor’s note also isn’t misconduct.Footnote 32 By agreeing to pay the grievance settlement, the employer showed that it didn’t have good cause for letting him go.Footnote 33 The representative also provided many Canadian Umpire Benefit (CUB) decisions that, in their view, support their case. This includes medical care that was provided later. [37] I agree that there are inconsistencies in the dates. For my part, I reach a different conclusion about his last day of work. I acknowledge that the medical certificate said that he wasn’t able to work as of August 20, 2024. But this certificate came from a doctor who wasn’t at the Appellant’s workplace. That person’s medical opinion was that the Appellant should not work as of August 20, 2024. This doesn’t prove that he didn’t actually work. I find that this third-party note can’t carry as much weight as the employer’s statements and payroll records. [38] I find the most likely date is August 22 or 23, 2024. The ROE dated September 10, 2024, issued soon after, was completed based on the employer’s payroll records. [39] The dismissal letter clearly stated that the employer considers the Appellant to have been absent without giving notice since August 22, 2024. But as shown below, whether the date was August 22 or 23 isn’t important for my conclusion. [40] The Commission has to prove misconduct. And it alleges that he was absent for five days or more without good cause. The Commission says that the Appellant breached a clear clause in the collective agreement.Footnote 34 The clause states: [translation] 10.02 Loss of seniority A regular employee loses their seniority and their employment, along with the rights attached to them, in the following cases: 3. The employee is absent from work without giving notice or without good cause for five working days in a row. [41] I will compare this clause with the conversation the Commission had with the employer.Footnote 35 The Commission wrote the following about that conversation: [translation] The collective agreement is clear about absences. After five days of being absent without good cause and without giving notice, the employee loses their job. He provided a doctor’s note for going to the blood-testing centre, dated August 21, 2024. He didn’t stop working as stated above. Later, he provided another note that was still not acceptable. The note mentioned an upcoming appointment the next week (the week of September 1). The employer gave him 48 hours to provide proper medical evidence showing that he had stopped working for medical reasons. It even suggested that he go to the emergency room, and that if they could not see him in a reasonable time frame, they could refer him. He had to provide the medical evidence by August 29, 2024. He showed up during the week of the 1st. He came on the 4th or the 5th, if he remembers correctly, and it was too late. The collective agreement had been applied. Collective agreement, section 10.02, item 3. [42] I find that this evidence, looked at as a whole, is telling but also vague. I will explain. I used bold text to highlight some points. As written, the employer said that there was in fact a medical certificate on hand, but it was considered unacceptable. It also said that the Appellant [translation] “later” provided another one that also wasn’t considered acceptable. The note also suggests that the Appellant had an appointment the next week. The Commission says that the Appellant was allegedly given 48 hours to get an acceptable note. It is important to note that it isn’t known on what day the employer allegedly gave him 48 hours. [43] The collective agreement said that an employee is let go if they are absent for five days in a row without giving notice or without good cause. The dismissal letter is dated Thursday, August 29, 2024. Between August 22, 2024, and August 29, 2024, there are seven calendar days. But it isn’t known how many days the Appellant was absent from work. Was he supposed to work six days during that period, or fewer? In other words, which days did he miss? There is also some evidence that the Appellant worked on August 23, 2024. Also, on what day was he told that he had 48 hours to bring in a doctor’s note? There are many unknowns. It is important to have his version of events because clause 10.02 refers to working days, not calendar days. [44] To add to this, there is the collective agreement. It said that an employee is let go if they didn’t tell their employer or if they didn’t provide good cause. Based on what the employer said, the Appellant came back with another medical certificate. That suggests the employer had been told. So, I can’t find that the Appellant didn’t tell his employer that he was absent. [45] So that leaves good cause. The employer gave him two days to provide an acceptable medical certificate. I find from this that the employer didn’t accept the certificate itself, not the reason. [46] The Appellant then provided a medical certificate. I have no evidence before me that the employer didn’t consider the reason written on the certificate to be good cause. I am not a doctor, but the note clearly said he could not work. Since the employer doesn’t say that the note or the reason wasn’t good cause, it is very reasonable to find that, in the employer’s opinion, the only issue was the time it took him to provide the note. [47] I also want to address the grievance that was settled. The Commission says that it isn’t relevant.Footnote 36 I agree that settling a grievance in an employee’s favour doesn’t decide the issue.Footnote 37 But the Federal Court of Appeal has said that it can be relevant when deciding whether there was misconduct under the Act.Footnote 38 For example, this could matter if the grievance documents contradict the evidence before me. That was the situation before the Federal Court of Appeal in the decision that was cited. [48] The fact that the employer paid $7,500 is a factor I will consider. The representative says that this payment suggests the employer’s case might have been weak during the arbitration process or negotiations. In other words, an employer with a strong case would not have paid compensation so easily. [49] I find that the fact he was let go isn’t misconduct under the Act. I will explain why the Commission’s arguments don’t convince me. [50] First, case law tells us that a finding of misconduct has to be made on the basis of clear evidence and not merely of speculation and suppositions.Footnote 39 [51] Here is what I considered: It isn’t known on what day he was allegedly given this 48-hour deadline. The Appellant also denies being given a 48-hour deadline or being told about any consequences that go with it. He testified that he doesn’t remember being given 48 hours or being told that, if he didn’t do so, he could be let go. The policy said that an employee has to tell the employer about being absent. The fact that the employer says it got unacceptable doctor’s notes suggests that the Appellant did in fact tell it that he would be absent. The collective agreement requires good cause for being absent. The employer suggests that a doctor’s note is required, but only if it is provided in 48 hours. The policy doesn’t mention any deadline. The exact days he missed aren’t known. Did he work Monday to Friday, or did he work irregularly? [52] Based on the evidence set out above, I find that misconduct hasn’t been established. The evidence leaves enough doubt about whether the Appellant breached the collective agreement. The lack of evidence confirming the day the final deadline was given leads me to believe that the Appellant wasn’t properly told about this deadline. [53] Based on the evidence above, I find that no wrongdoing has been established. The evidence raises enough doubt to find that the Appellant didn’t breach the clause of the collective agreement. [54] On a balance of probabilities, I find that no misconduct under the Act has been established. The Commission hasn’t proven that he breached the collective agreement or that he should have known he was at risk of being let go. [55] I acknowledge that I didn’t refer to all of the CUB decisions that the representative cited. The case law says that I don’t have to respond to every argument.Footnote 40 I am also not bound by CUB decisions. Conclusion [56] I find that the Appellant isn’t disqualified from receiving benefits. [57] This means that the appeal is allowed. Footnotes Footnote 1 Section 30 of the Employment Insurance Act (Act) says that claimants who loses their job because of misconduct are disqualified from receiving benefits. It is the same outcome for someone who voluntarily leaves employment without just cause. Footnote 2 See GD4-6. Footnote 3 See GD4-7. Footnote 4 See GD3-36 to GD3-39, GD3-47 to GD3-50, GD3-53 to GD3-55, GD3-61 to GD3-63, and GD3-80 to GD3-81. Footnote 5 See GD8. Footnote 6 See GD3-57. A breach can be issued when a penalty is imposed. A penalty is imposed when the Commission has decided that a wrongful act has been committed. Footnote 7 See GD3-51 in GE-25-2035, and GD3-51 in GE-25-2036. Footnote 8 See GD07-3 and GD3-5. Footnote 9 See GD06 and GD07 for the Commission. The representative communicated his agreement at the start of the hearing. Footnote 10 See section 35 of the Social Security Tribunal Rules of Procedure. Footnote 11 See GDJ01. Footnote 12 See Mishibinijima v Canada (Attorney General), 2007 FCA 36. Footnote 13 See McKay-Eden v Her Majesty the Queen, A-402-96. Footnote 14 See Attorney General v Secours, A-352-94. Footnote 15 See Mishibinijima v Canada (Attorney General), 2007 FCA 36. Footnote 16 See Minister of Employment and Immigration v Bartone, A-369-88. Footnote 17 See GD4-6. Footnote 18 See GD3-15 and GD3-33. Footnote 19 See GD3-40. Footnote 20 See GD3-31. Footnote 21 See GD03-84. Footnote 22 See GD3-35. Footnote 23 See GD3-71. The representative said that this was a text message the Appellant sent him. This text message was recreated from memory in the spring of 2025. Footnote 24 See GD03-72. Footnote 25 See GD3-43. Footnote 26 See GD3-44. Footnote 27 See GD4-7. Footnote 28 See GD4-7. Footnote 29 See GD4-6. Footnote 30 See GD4-6. Footnote 31 See GD4-7. Footnote 32 See GD9-3. Footnote 33 See GD9-3. Footnote 34 See GD3-86. Footnote 35 See GD3-84. Footnote 36 See GD4-8. Footnote 37 I have to consider only the Act and the case law that relates to it. Footnote 38 See Canada (Attorney General) v Boulton, A-45-96. See also Canada (Attorney General) v Courchene, 2007 FCA 183. Footnote 39 See Crichlow v Canada (Attorney General), A-562-97. Footnote 40 See Simpson v Canada (Attorney General), 2012 FCA 82.