Employee knew that termination was possibility if she continued to consume alcohol on reserve

Public law - Social programs - Employment insurance

Misconduct. Canada Employment Insurance Commission denied employee’s application for employment insurance (EI) benefits on ground that she lost employment due to misconduct. General Division (GD) of Social Security Tribunal dismissed employee’s appeal. Appeal Division (AD) of Social Security Tribunal allowed employee’s appeal on grounds that GD did not have regard to employer’s progressive discipline policy or how employer treated other employees who engaged in similar conduct, and failed to find whether employee had received prior warning. AD agreed that employee was dismissed for misconduct because she consumed alcohol on dry reserve contrary to terms of employment, and held that it was not reasonable for employee to rely on progressive discipline policy or treatment of other employees. Employee brought application for judicial review. Application dismissed. AD was entitled to decide factual questions and make decision GD should have made. AD did not err in determining that employee knew that termination was possibility if she continued to consume alcohol on reserve, and that her behaviour amounted to misconduct. It was reasonable for AD to conclude that not drinking alcohol on reserve was term of employment and to infer that employee was aware of employer's concern. AD erred when it considered fact that employee knew of employer’s decision to summarily terminate her husband as basis for finding that employee could not rely on employer’s progressive discipline policy or treatment of other employees but error was not determinative.

Nelson v. Canada (Attorney General) (2019), 2019 CarswellNat 4171, 2019 FCA 222, Wyman W. Webb J.A., D.G. Near J.A., and Yves de Montigny J.A. (F.C.A.).

Case Law is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. These cases may be found online in WestlawNext Canada. To subscribe, please visit store.thomsonreuters.ca

Free newsletter

Our newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please enter your email address below to subscribe.

Recent articles & video

LSO Convocation approves license proposal for non-lawyer family legal services providers

Recent ruling a 'cautionary tale' for start-ups, says IP lawyer

OCA refuses to extend intrusion upon seclusion liability to hacked commercial database holders

Law Society of Ontario extends virtual verification until January 2024

Ontario Court of Appeal upholds summary judgment in seller's favour after buyer fails to close

Heather Johnston joins Law Foundation of Ontario's board of trustees

Most Read Articles

Seven new judges join Ontario Court of Justice

LSO and federation push Metrolinx to find alternative to new subway station on Osgoode Hall property

LSO Convocation approves license proposal for non-lawyer family legal services providers

OCA refuses to extend intrusion upon seclusion liability to hacked commercial database holders