Appeal Denied for Employment Insurance Misconduct Case

[TRANSLATION] Citation: SD  v  Canada Employment Insurance Commission , 2026  SST  43 Social Security Tribunal of Canada Appeal Division Leave to Appeal Decision Applicant: [redacted] Respondent: [redacted] Decision under appeal: General Division decision dated December 11, 2025 (GE-25-3098) Tribunal member: [NAME] Decision date: January 22, 2026 File number: AD-26-12 On this page Decision Overview Issues I am not giving the Claimant permission to appeal Conclusion Decision [ 1 ] Permission to appeal is refused. The appeal won’t go ahead. Overview [ 2 ] The Claimant, S. D., applied for Employment Insurance ( EI ) benefits. The Canada Employment Insurance Commission (Commission) decided that the Claimant wasn’t entitled to benefits because he lost his job due to misconduct. Footnote 1 The employer told the Commission that it let the Claimant go because he was stealing goods. Footnote 2 [ 3 ] The Claimant asked the Commission to reconsider its decision. He acknowledged that he was accused of stealing, but said he thought he would pay for the chocolate bars and drinks he consumed later. Footnote 3 He paid back the amounts he owed as well as his employer’s [NAME] fees. The Commission maintained its decision. Footnote 4 [ 4 ] The Claimant appealed the reconsideration decision to the General Division. The General Division decided that the Claimant lost his job because of misconduct, specifically because he stole drinks and chocolate bars. Footnote 5 [ 5 ] The Claimant is now asking the Appeal Division for permission to appeal. The Appeal Division can hear an appeal on the merits only if permission to appeal is given. Footnote 6 I am not giving permission to appeal for the following reasons. Issues [ 6 ] I have to decide the following issues: a) Is there an arguable case that the General Division made an error of law by applying the wrong burden of proof? b) Is there an arguable case that the General Division made important errors of fact in assessing the Claimant’s credibility or in deciding the reason the employment ended? c) Is there an arguable case that the General Division made an error, other than those the Claimant alleged, that would allow me to intervene? I am not giving the Claimant permission to appeal The legal test for giving permission to appeal [ 7 ] I can only give permission to appeal if there are arguable grounds on which the Claimant’s appeal might succeed. Footnote 7 I have to refuse permission to appeal if I am satisfied that the appeal has no reasonable chance of success. Footnote 8 A reasonable chance of success means that the Claimant could argue his case and possibly win. [ 8 ] The appeal has to involve one of the grounds of appeal set out in the law. So, I have to decide whether there is an arguable ground that the General Division made one of the following errors: failed to follow the principles of procedural fairness made an error of jurisdiction made an error of law based its decision on an important error of fact Footnote 9 [ 9 ] So, I have to give permission to appeal if the General Division may have made one of these errors and if that error would give the appeal a reasonable chance of success. [ 10 ] To give my decision, I reviewed the administrative file before the General Division, listened to the recording of the hearing, and carefully read the General Division decision. There is no arguable ground that the General Division made an error of law by applying the wrong burden of proof [ 11 ] In his application for permission to appeal, the Claimant alleged that the General Division applied an incorrect standard for assessing the evidence. Footnote 10 [ 12 ] The Claimant hasn’t shown an arguable ground that the General Division identified the wrong burden of proof to apply. The General Division relied on case law—a Federal Court of Appeal decision—that says the Commission has to prove misconduct. Footnote 11 The General Division explained in its decision that the Commission had to show, on a balance of probabilities, that the Claimant lost his job because of misconduct. Footnote 12 The General Division then explained what that meant. It said the Commission had to show whether it was more likely than not that the Claimant lost his job because of misconduct. Footnote 13 So, there is no arguable ground that the General Division didn’t follow the binding case law of the Federal Court of Appeal in deciding what burden of proof to apply. [ 13 ] There is also no arguable ground that the General Division failed to apply this burden of proof. It considered the decision provided by the Claimant that says compelling evidence is required to prove misconduct. Footnote 14 And it takes more than just subjective doubt—when the explanations are reasonable and consistent—to find misconduct. [ 14 ] But the General Division had more than just subjective doubt to find misconduct. It found that it had “compelling evidence.” Footnote 15 It listed this compelling evidence in its decision: the Appellant’s admission that he took items without paying for them right away two signed admissions the employer’s statement Footnote 16 [ 15 ] The General Division also found the Claimant’s explanations not very convincing. It considered his explanations that he felt pressured to sign the statement recognizing that he stole. But it noted that he still acknowledged taking items without paying for them right away. It pointed out that he recognized in writing before the General Division that he had taken 10 to 15 chocolate bars. Footnote 17 At the hearing, he also acknowledged that he consumed drinks without paying for them right away. Footnote 18 [ 16 ] So, there is no arguable ground that the General Division didn’t properly identify the burden of proof or fail to apply it. There is no arguable ground that the General Division made an important error of fact in assessing the Claimant’s credibility [ 17 ] The Claimant said in his application to the Appeal Division that the General Division found that he didn’t lie, but it still casted doubt on his credibility. Footnote 19 [ 18 ] Assessing credibility is an issue of fact, not of law. Footnote 20 The Appeal Division has very limited power to intervene when it comes to findings of fact that the General Division made. The Appeal Division can intervene only if the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner, or without regard for the evidence. Footnote 21 [ 19 ] The General Division had to look at the evidence and make findings, including about credibility. Its role is to assess the evidence and explain why it finds one piece of evidence more compelling than another. It also has to explain a finding of non-credibility. [ 20 ] There is no arguable ground that the General Division made findings about the Claimant’s credibility in a perverse or capricious manner. The Claimant also hasn’t shown an arguable ground that the General Division overlooked important evidence. [ 21 ] The General Division considered the Claimant’s explanations about how it assessed his credibility. It wrote that the Claimant said: didn’t commit any wrongdoing Footnote 22 always meant to pay for the items and did so regularly Footnote 23 kept the chocolate-bar packaging and asked the cashiers to pay what he owed later Footnote 24 stored drink bottles to pay for them later Footnote 25 that there is no concrete evidence against him because [NAME] refused to show him the videos Footnote 26 doesn’t owe the amounts he was accused of, but only some chocolate bars and some drinks Footnote 27 acted in good faith by offering to pay for the items consumed Footnote 28 signed the statement acknowledging the stealing only to avoid losing his job or having the employer call the police Footnote 29 had the [NAME] tell him what to put in the statement, and doing so under pressure Footnote 30 [ 22 ] The General Division weighed the explanations the Claimant gave and then explained what points made it doubt his credibility: The Claimant didn’t state in his benefits claim that he was accused of stealing. Footnote 31 The Claimant initially testified that he threw the drink bottles away, then contradicted himself by saying he put them somewhere in the store. Footnote 32 The Claimant said that he didn’t use his employee card that gave him discounts to buy his snacks, even though it would have saved him money. Footnote 33 The Claimant said that he would add up the packaging, go to a cash register, take a chocolate bar, and ask to pay for many other items he had consumed earlier. The General Division said that this would raise questions for the cashier. Footnote 34 The Claimant only offered to pay for the items he consumed after [NAME] caught him. Footnote 35 [ 23 ] The General Division used a paragraph for each point that raised doubts, explaining why that evidence called the Claimant’s credibility into question. The Claimant hasn’t shown an arguable ground that there is no logical or rational link between the evidence and the findings of fact that the General Division made. [ 24 ] He is in fact challenging the issue of the General Division’s decision that he committed misconduct. But he hasn’t shown an arguable ground that the General Division made findings of fact that the evidence clearly contradicts, or that are perverse or capricious. [ 25 ] The Appeal Division can’t reassess the evidence. Footnote 36 It also can’t intervene when the General Division applies a settled legal test—misconduct—to the facts of the case. Footnote 37 This is because this is an issue of mixed fact and law. There is no arguable ground that the General Division based its decision on an important error of fact about the reason his employment ended [ 26 ] In his application for permission to appeal, the Claimant alleged that the General Division made a finding of fact that wasn’t consistent with the documentary evidence. Footnote 38 He said that the General Division should not have doubted his credibility because he didn’t state, in his claim for EI  benefits, that he was let go because he was accused of stealing. His Record of Employment ( ROE ) didn’t mention that he was let go for stealing. He said he was never told that he lost his job for anything other than a breach of trust. And that was why he didn’t state that he was let go for stealing. [ 27 ] The Claimant criticizes the General Division for how it assessed the evidence. But it is in fact the General Division’s role to analyze the evidence before it in light of the parties’ explanations. It can accept or reject the parties’ statements and decide whether it finds some evidence more compelling than others. Footnote 39 [ 28 ] The Claimant didn’t say in his initial claim for EI  benefits that he was let go for stealing. Yet the General Division pointed out that the form for the initial EI  benefits claim actually included a checkbox that said, [translation] “My employer accused me of stealing.” Footnote 40 Instead, the Claimant checked the box that said, [translation] “My employer didn’t tell me why I was let go or suspended.” Footnote 41 [ 29 ] At the hearing, the General Division gave the Claimant an opportunity to explain why he didn’t write in his benefits claim that he was let go for stealing. The Claimant testified that the employer told him there was a breach of trust. Footnote 42 He said that he didn’t believe he had stolen. He also said that he relied on the ROE , and it didn’t say he was let go for stealing. Footnote 43 [ 30 ] The General Division found that this failure casted doubt on the Claimant’s credibility. Footnote 44 It said that the Claimant’s explanation was surprising because the accusation of stealing caused the breach of trust. Footnote 45 It wrote that it was undeniable that he was accused of stealing and that he knew he was accused of stealing. Footnote 46 It pointed out that this was one of the points it had to consider to assess his credibility. It explained why it found his failure to report that he was let go for stealing undermined his credibility. The General Division was free to make this type of finding. It isn’t up to the Appeal Division to reassess the evidence. There is no arguable ground that the General Division made any error, other than those the Claimant alleged, that would allow me to intervene [ 31 ] I have to make sure that there is no potential error in the file that could give the Claimant’s appeal a reasonable chance of success, considering that he is self-represented. Footnote 47 [ 32 ] There is no arguable ground that the General Division breached principles of procedural fairness. It allowed the Claimant to be heard and was impartial and independent throughout the process. It made sure to explain the applicable legal criteria at the hearing. Footnote 48 It also made an effort to answer his questions to make sure that he could present his arguments fully. Footnote 49 It also allowed him to make submissions after the hearing. Footnote 50 [ 33 ] There is no arguable ground that the General Division made an error of jurisdiction. It decided the issue that was before it—whether the Claimant lost his job because of misconduct. Conclusion [ 34 ] Permission to appeal is refused. This means that the appeal won’t go ahead. Footnotes Footnote 1 See the notice of decision at GD3-25. Return to footnote 1 referrer Footnote 2 See the notes about a telephone conversation with the employer at GD3-16. Return to footnote 2 referrer Footnote 3 See the reconsideration request at GD3-28. Return to footnote 3 referrer Footnote 4 See the reconsideration decision at GD3-40. Return to footnote 4 referrer Footnote 5 See the General Division decision at AD1A-2. Return to footnote 5 referrer Footnote 6 See section 56(1) of the Department of Employment and Social Development Act  ( DESD  Act). Return to footnote 6 referrer Footnote 7 [NAME]  v  Canada (Attorney General) , 2016  FC  115 at para 12. Return to footnote 7 referrer Footnote 8 See section 58(2) of the DESD  Act. Return to footnote 8 referrer Footnote 9 See section 58(1) of the DESD  Act. Return to footnote 9 referrer Footnote 10 See the application to the Appeal Division at AD1-3. Return to footnote 10 referrer Footnote 11 See the General Division decision at AD1A-5 at para 22. The General Division cited Minister of Employment and Immigration  v  [NAME] , A-369-88. Return to footnote 11 referrer Footnote 12 See the General Division decision at AD1A-5 at para 22. Return to footnote 12 referrer Footnote 13 . See the General Division decision at AD1A-5 at para 22. Return to footnote 13 referrer Footnote 14 See the General Division decision at AD1A-13 at para 57. The Tribunal referred to [NAME]  v  Canada (Attorney General) , 2007  FCA  36. Return to footnote 14 referrer Footnote 15 See the General Division decision at AD1A-13 at para 58. Return to footnote 15 referrer Footnote 16 See the General Division decision at AD1A-13 at para 58. Return to footnote 16 referrer Footnote 17 See the Claimant’s submissions at GD9-2. Return to footnote 17 referrer Footnote 18 Listen to the recording of the hearing at 26:50. The Claimant acknowledged that he had to pay for some drinks (a Monster and four raspberry teas). He said that he also had to pay for chocolate bars, but less than 60. Return to footnote 18 referrer Footnote 19 See the application to the Appeal Division at AD1-2. Return to footnote 19 referrer Footnote 20 See the Federal Court of Appeal decision [NAME]  v  Canada (Minister of Human Resources Development) , 2002  FCA  433 at para 2. Return to footnote 20 referrer Footnote 21 See section 58(1)(c) of the DESD  Act. Return to footnote 21 referrer Footnote 22 See the General Division decision at AD1A-6 at para 27. Return to footnote 22 referrer Footnote 23 See the General Division decision at AD1A-6 at para 27. Return to footnote 23 referrer Footnote 24 See the General Division decision at AD1A-6 at para 28. Return to footnote 24 referrer Footnote 25 See the General Division decision at AD1A-7 at para 29. Return to footnote 25 referrer Footnote 26 See the General Division decision at AD1A-7 at para 30. Return to footnote 26 referrer Footnote 27 See the General Division decision at AD1A-7 at para 30. Return to footnote 27 referrer Footnote 28 See the General Division decision at AD1A-7 at para 31. Return to footnote 28 referrer Footnote 29 See the General Division decision at AD1A-7 at para 30. Return to footnote 29 referrer Footnote 30 See the General Division decision at AD1A-11 at paras 50 and 51. Return to footnote 30 referrer Footnote 31 See the General Division decision at AD1A-9 at para 42. Return to footnote 31 referrer Footnote 32 See the General Division decision at AD1A-10 at para 44. Return to footnote 32 referrer Footnote 33 See the General Division decision at AD1A-10 at para 45. Return to footnote 33 referrer Footnote 34 See the General Division decision at AD1A-10 at para 46. Return to footnote 34 referrer Footnote 35 See the General Division decision at AD1A-10 at para 47. Return to footnote 35 referrer Footnote 36 [NAME]  v  Canada (Attorney General) , 2022  FCA  157 at para 46. Return to footnote 36 referrer Footnote 37 See Canada (Attorney General)  v  [NAME] , 2017  FC  120 at para 35. Return to footnote 37 referrer Footnote 38 See the application to the Appeal Division at AD1-2. Return to footnote 38 referrer Footnote 39 [NAME]  v  Canada (Attorney General) , 2022  FCA  157 at para 46. Return to footnote 39 referrer Footnote 40 See the General Division decision at AD1A-9 at paras 42 and 43. The General Division referred to the Claimant’s benefits claim at GD3-7. Return to footnote 40 referrer Footnote 41 See the benefits claim at GD3-8. Return to footnote 41 referrer Footnote 42 Listen to the recording of the hearing at 31:10. Return to footnote 42 referrer Footnote 43 See the Record of Employment at GD3-14. Return to footnote 43 referrer Footnote 44 See the General Division decision at AD1A-9 at para 42. Return to footnote 44 referrer Footnote 45 See the General Division decision at AD1A-10 at para 43. Return to footnote 45 referrer Footnote 46 See the General Division decision at AD1A-9 at para 42. Return to footnote 46 referrer Footnote 47 [NAME]  v  Canada (Attorney General) , 2016  FC  615 at para 10. Return to footnote 47 referrer Footnote 48 Listen to the recording of the hearing at 6:20. The General Division explained the legal test for misconduct and the applicable burden of proof. Return to footnote 48 referrer Footnote 49 Listen to the recording of the hearing at 8:00. The General Division asked the Claimant if he had questions and how he wanted to move forward. It asked him if he wanted the member to ask him questions or if he wanted to present his point of view first. Listen to the recording of the hearing at 39:36. The General Division asked the Claimant if he had any questions or anything else to add. Return to footnote 49 referrer Footnote 50 See the submissions at GD9. Return to footnote 50 referrer