Self-defense Not Enough to Avoid EI Termination

Citation: JJ  v  Canada Employment Insurance Commission , 2026  SST  148 Social Security Tribunal of Canada Appeal Division Leave to Appeal Decision Applicant: [redacted] Respondent: [redacted] Decision under appeal: General Division decision dated January 16, 2026 (GE-26-19) Tribunal member: [NAME] Decision date: March 2, 2026 File number: AD-26-103 On this page Decision Overview Issue Analysis Conclusion Decision [ 1 ] Leave (permission) to appeal is refused. The appeal will not proceed. Overview [ 2 ] The Applicant (Claimant) lost his job. He was working as a bus driver. While he was at a stop, and passengers were exiting the bus, one of them dumped a foul-smelling liquid on him. He got off the bus to confront [NAME] who had dumped the liquid on him. [ 3 ] During the confrontation with [NAME], the Claimant noticed [NAME] had a knife so he pushed him away to create distance between them. Unfortunately, the Claimant was attacked with the knife. While he managed to disarm [NAME], he was still injured during the altercation. [ 4 ] The employer performed an investigation into the incident and fired the Claimant. The employer said that the Claimant was aware of their rules that he was never to leave the bus to confront [NAME] passengers. He had even been disciplined twice before for improper interactions with passengers. [ 5 ] The Respondent (Commission) decided that the Claimant’s actions led to him being fired. In other words, he committed misconduct, so they could not pay him benefits. The Claimant disagreed. [ 6 ] After an unsuccessful reconsideration, the Claimant appealed to the General Division. He argued that he was wrongfully terminated as he was the one who was assaulted and he acted in self-defence. He also argued that his employer created an environment which encourages the public to assault transit workers. [ 7 ] The General Division found that the Claimant lost his job because he left his bus to confront [NAME] who had sprayed him with a liquid. It found that the Claimant was aware of the employer’s policies and that he was not to leave his bus to confront a [NAME]. [ 8 ] The General Division found that the Claimant ought to have known that he would be fired for exiting the bus. This was the reason he lost his job. The General Division concluded that the Claimant lost his job because of misconduct. [ 9 ] The Claimant now seeks leave to appeal of the General Division’s decision to the Appeal Division.  The Claimant submits that the General Division failed to exercise its jurisdiction, ignored the evidence before it, and made an error in its interpretation of misconduct. [ 10 ] I must decide whether the Claimant raised some reviewable error of the General Division upon which the appeal might succeed. [ 11 ] I refuse leave to appeal because the Claimant’s appeal has no reasonable chance of success. Issue [ 12 ] Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed? Analysis [ 13 ] The law specifies the only grounds of appeal of a General Division decision. Footnote 1 These reviewable errors are that: The General Division hearing process was not fair in some way. The General Division did not decide an issue that it should have decided. Or, it decided something it did not have the power to decide. The General Division based its decision on an important error of fact. The General Division made an error of law when making its decision. [ 14 ] An application for leave to appeal is a preliminary step to a hearing on the merits. It is an initial hurdle for the Claimant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the leave to appeal stage, the Claimant does not have to prove his case but must establish that the appeal has a reasonable chance of success based on a reviewable error.  In other words, that there is arguably some reviewable error upon which the appeal might succeed. [ 15 ] Therefore, before I can grant leave, I need to be satisfied that the reasons for appeal fall within any of the above-mentioned grounds of appeal and that at least one of the reasons has a reasonable chance of success. Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed? [ 16 ] The Claimant submits that the employer failed its duty to protect staff from workplace assaults and that consistently performing work in an unsafe workplace has its consequences psychologically, which cannot be denied. [ 17 ] The Claimant submits that the Commission did not identify which action led to his termination. His immediate response was to get off the seat, from that closed space to get some fresh air. He submits that a reflex action by a scared body or startle response is an involuntary, rapid and automatic reaction designed for survival, which his exactly what he did. The physical altercation was only for his defence once he partially saw the metal weapon ready to be used. [ 18 ] The Claimant maintains that he was completely unaware that he could be dismissed for getting off the bus after the physical assault. He wants the Appeal Division to conclude that he did not lose his job because of his misconduct, to understand the assault he suffered, to understand the body's reflexive reactions, and to determine whether his termination was wrongful or not. [ 19 ] The General Division had to decide whether the Claimant lost his job because of misconduct under the Employment Insurance Act ( EI Act). [ 20 ] The General Division’s role is to determine whether the employee’s conduct amounted to misconduct within the meaning of the EI Act and not whether the severity of the penalty imposed by the employer was justified or whether the employee’s conduct was a valid ground for dismissal. [ 21 ] The General Division determined that the Claimant lost his job because he left his bus to confront [NAME] that splashed a liquid on him. [ 22 ] The General Division based this conclusion on the Claimant’s initial statement to the Commission in which he admitted that he got out of the bus on the driver side and approached [NAME] to ask him why he threw liquid him. As he approached [NAME], he saw that he was holding a knife. The Claimant said he was scared and gently pushed him away from him to create a safe space between he and [NAME]. The man then attacked him with the knife and cut him in several places. Footnote 2 [ 23 ] The General Division took note that the employer’s policies state that in response to a [NAME], the Claimant should always be calm and polite, act in a professional manner, and call a supervisor if he needs help. It further noted that none of the employer’s policies permitted confrontation with the public. The General Division found that the Claimant was aware of the workplace policies having signed off on such documents in July 2025. [ 24 ] The General Division determined that the Claimant had previously answered in his driver exam that it was not okay “…to get off your bus to confront an [NAME].” [ 25 ] The General Division determined that the Claimant had already received a written warning for approaching a [NAME] and making physical contact with him to wake him up. He was suspended for one day. [ 26 ] For these reasons, the General Division found that the Claimant ought to have known that he would be fired for exiting the bus to confront [NAME] who splashed liquid on him, and that this was the reason he lost his job. The General Division concluded that the Claimant lost his job because of misconduct. [ 27 ] The evidence before the General Division supports its conclusion that the Claimant’s actions were wilful or of such a careless or negligent nature that one could say that the Claimant wilfully decided to disregard the effects his actions would have on his job performance. His employer had warned him not to get off the bus to approach an [NAME], but he did it anyway, which led to his dismissal. [ 28 ] I see no reviewable error made by the General Division. It made its decision based on the evidence before it, and the decision complies with both the legislative provisions and the case law regarding misconduct. Unfortunately, for the Claimant, an appeal to the Appeal Division is not an appeal in which there is a new hearing where a party can re-present their evidence and hope for a favourable decision. [ 29 ] I am fully aware that the Claimant may seek relief before another forum if he feels the employer wrongfully dismissed him or failed its duty to protect staff from workplace assaults. This does not change the fact that under the EI Act, the Commission has proven on a balance of probabilities that the Claimant lost his job because of misconduct. [ 30 ] After reviewing the appeal file and the General Division’s decision as well as considering the Claimant’s arguments in support of his request for leave to appeal, I have no choice but to find that the appeal has no reasonable chance of success. The Claimant has not set out a reason, which falls into the above-enumerated grounds of appeal that could possibly lead to the reversal of the disputed decision. Conclusion [ 31 ] Leave to appeal is refused. This means the appeal will not proceed. Footnotes Footnote 1 Section 58(1) of the Department of Employment and Social Development Act . Return to footnote 1 referrer Footnote 2 GD3-31. Return to footnote 2 referrer