Social Security Tribunal Denies Claimant's EI Benefit Appeal Due to Misconduct

Citation: [NAME]  v  [NAME] Commission and X , 2026  [NAME]  174 [NAME] Security Tribunal of Canada Appeal Division Leave to Appeal Decision Applicant: [redacted] Respondent: [redacted] Added Party: X Representative: [NAME] Decision under appeal: [NAME] decision dated January 20, 2026 (GE-25-3439) Tribunal member: [NAME] Decision date: March 9, 2026 File number: AD-26-105 On this page Decision Overview Issues The test for getting permission to appeal I am not giving the Claimant permission to appeal Conclusion Decision [ 1 ] Leave (permission) to appeal is refused. M. F.’ appeal will not proceed. Overview [ 2 ] M. F. is the Claimant. She worked for a [COMPANY] (the “Employer”). She was dismissed from her job and applied for Employment Insurance benefits. [ 3 ] The [NAME] Commission (Commission) decided that the loss of her job wasn’t due to her misconduct, so she could get benefits. Footnote 1 However, the Employer appealed that decision to the [NAME]. [ 4 ] The [NAME] allowed the Employer’s appeal. It decided that the Claimant lost her job due to her own misconduct resulting in a disqualification to benefits. Footnote 2 [ 5 ] The Claimant is now asking for permission to appeal. She argues that the [NAME] didn’t follow a fair process, made legal errors and important factual errors. Footnote 3 [ 6 ] I am denying permission to appeal because the Claimant’s arguments don’t show that she has an arguable case upon which the appeal might succeed. So, I can’t give her permission to appeal. Footnote 4 Issues [ 7 ] The issues in this appeal are: a) Is there an arguable case that the [NAME] didn’t follow a fair process in some way? b) Is there an arguable case that the [NAME] made any legal errors and any important factual errors when it decided the misconduct issue? The test for getting permission to appeal [ 8 ] The law says that I can consider four types of errors, and they include, a failure to follow a fair process, jurisdictional, legal, and important factual errors. Footnote 5 [ 9 ] I can only give the Claimant permission to appeal if there’s an “arguable case” that the [NAME] made a reviewable error that gives her appeal a reasonable chance of success. Footnote 6 [ 10 ] The Claimant set out her reasons for appealing. Footnote 7 She argues that the [NAME] didn’t follow a fair process, made legal errors and important factual errors, so that’s what I will focus on. [ 11 ] I’ve reviewed all of her arguments and considered them, but I don’t have to deal with every argument in detail. Footnote 8 Instead, I’ve summarized and focused only on the Claimant’s main arguments only. I’ve also reviewed the [NAME]’s decision, the file documents and listened to the audio recording of the [NAME] hearing before making my decision. I am not giving the Claimant permission to appeal The Claimant argues that the [NAME] didn’t follow a fair process [ 12 ] The Claimant argues that the [NAME] didn’t follow a fair process because she wasn’t given notice and time to prepare for the hearing, which had a lot of documents. She also says that she had no opportunity to seek representation, while the other side was represented by legal counsel. [ 13 ] The Claimant explained that she understood that the hearing would be “informal,” but she hadn’t expected to be asked so many questions. As well, the order of proceedings was not clearly explained to her. She also objects to the length of the [NAME] hearing, which went over 3 hours. [ 14 ] Finally, she says they ran out of time at the [NAME] hearing, so they had to submit their closing submissions in writing. There is no arguable case that the [NAME] didn’t follow a fair process [ 15 ] Natural justice is about the fairness of the process and includes certain procedural protections. Parties before the [NAME] have procedural protections such as the right to be heard, to know the case against them, to timely receipt of the Notice of Hearing and documents, and the right to an unbiased decision-maker are just some examples. [ 16 ] I see no arguable case that the [NAME] didn’t follow a fair process for the following reasons. [ 17 ] The parties in this appeal included the Claimant (self-represented), the [NAME] Commission and the Employer. [ 18 ] The file record shows that the Notice of Hearing was delivered to the Claimant by courier and by email on January 5, 2026. The teleconference hearing took place on January 8, 2026. [ 19 ] Only the Claimant, the Employer, the Employer’s Witness and Employer’s representative attended the [NAME] hearing. The Commission submitted written arguments to the [NAME] instead. Footnote 9 [ 20 ] I listened to the audio recording of the [NAME] hearing and heard the following. The Claimant told the [NAME] that she was in Alberta at the time the Notice of Hearing was delivered and her friend accepted it on her behalf. She explained that she returned to Ontario to attend the teleconference hearing. Footnote 10 [ 21 ] The [NAME] asked the parties if they had received and had sufficient time to review the documents in the file. The Claimant confirmed that she had recently received and reviewed the documents. Footnote 11 [ 22 ] The [NAME] explained the legal test it would apply and how the proceedings would unfold. This was done in significant detail. It invited the parties to ask any questions before commencing the hearing. The Claimant didn’t have any questions for the [NAME] member. Footnote 12 [ 23 ] The [NAME] Security Tribunal Rules of Procedure says that the appeal process has to be simple, quick and fair. Footnote 13 As well, Tribunal members use active adjudication to help parties fully participate in the appeal process. Footnote 14 [ 24 ] Hearings before the [NAME] and Appeal Division are often “informal.” For example, parties can ask for breaks when needed and have food & water with them. But an informal hearing doesn’t mean that a party won’t be asked questions about their evidence and arguments. [ 25 ] The Claimant got an opportunity to present her own case and ask the Employer and his Witness questions. And the Employer got to ask her questions too. [ 26 ] There were several times during the proceedings when the [NAME] had to caution the Claimant for interrupting the Employer and his Witness when they testified. Footnote 15 Both parties are entitled to a fair process, so this was appropriate in the circumstances. [ 27 ] The [NAME] scheduled the teleconference hearing for one hour only. Unfortunately, it underestimated the amount of time that was needed for the hearing. The hearing ended up taking approximately 3 hours and the parties were invited to provide closing arguments in writing after the hearing. Footnote 16 Both parties agreed to this. Footnote 17 [ 28 ] When the Claimant expressed some concern about preparing written arguments, the [NAME] explained to her, in plain language, what it expected to see in closing arguments. It restated the applicable legal test and told her to refer to the evidence. It also suggested she could look at the Tribunal’s website for more information about the legal test for misconduct cases, etc. Footnote 18 [ 29 ] There is no arguable case that the [NAME] didn’t follow a fair process. Footnote 19 [ 30 ] To summarize: The [NAME] actively adjudicated the appeal and explained the hearing process and legal test to the parties. The audio recording shows that the Claimant had an opportunity to testify and present her case. She knew the case against her and had sufficient notice of the hearing date and time to review the documents. At no point, did the Claimant tell the [NAME] that she needed time to obtain legal representation and that she needed more time to prepare for the hearing. And she never asked the [NAME] for a rescheduling of the hearing either. A hearing that runs longer than expected doesn’t amount to an unfair process. The Claimant argues that the [NAME] made legal errors [ 31 ] The Claimant argues that [NAME] didn’t consider the burden of proof and benefit of doubt provision. She says that the Employer had the burden of proof to prove misconduct. She also says when the existence of misconduct is equally balanced on both sides, the benefit of the doubt must go to the Claimant. [ 32 ] The Claimant says that she was dealing with harassment and aggression at the workplace which was not properly addressed and this amounted to a legal error. And she restates that the Employer’s allegations against her remain unsubstantiated because the Witness was unreliable, biased and lacked credibility. [ 33 ] To support her overall position, she referred to her ESA complaint and case before the Ontario Labour Relations Board (OLRB), the Minister of Employment and Immigration  v  [NAME] , A-369-88, D  v  [NAME] , 2024  [NAME]  945 and [NAME]   v   [NAME] Commission and X , 2021   [NAME]  153. Footnote 20 There is no arguable case that the [NAME] made any legal errors [ 34 ] A legal error happens when the [NAME] does not apply the correct law or uses the correct law but misunderstands what it means or how to apply it. [ 35 ] The [NAME] had to decide whether the Commission had proven the Claimant was dismissed from her job due to her own misconduct (based on the meaning according to the  Employment Insurance Act and relevant case law). [ 36 ] The  EI  Act says that a person who loses their job due to misconduct is disqualified from getting benefits. Footnote 21 [ 37 ] “Misconduct” is not defined in the  EI  Act, but the Federal Court of Appeal ( FCA ) in  [NAME]  defines “misconduct” as conduct that is wilful, which means that the conduct was conscious, deliberate, or intentional. Footnote 22 [ 38 ] There is misconduct if the Claimant knew or should have known the conduct could get in the way of carrying out their duty to the employer and that dismissal was a real possibility. Footnote 23 [ 39 ] I see no arguable case that the [NAME] made any legal errors. [ 40 ] The [NAME] correctly identified in its decision that the Employer had the burden of proving that the Claimant lost her job due to misconduct on a balance of probabilities. Footnote 24 It found that the Employer had met their burden of proving she was dismissed for her own misconduct. [ 41 ] This is consistent with the [NAME] decision cited by the Claimant. It confirms that the Employer had the onus of proving she lost her job due to misconduct and that the Tribunal must be satisfied that the misconduct was the reason for the dismissal not the excuse for it. [ 42 ] The benefit of the doubt provision in the EI Act is only applied by the Commission and not the [NAME]. Footnote 25 The focus is on the Claimant’s conduct, not the Employer’s conduct. Footnote 26 Allegations about the Employer’s conduct are for another forum, and not this Tribunal. Footnote 27 The Claimant in this case has already initiated actions against the Employer in other forums. [ 43 ] The Claimant submitted new information about her ESA complaint and ongoing OLRB proceedings. The Appeal Division doesn’t normally accept new evidence, but I accept that this information fits under the “background information” exception. Footnote 28 It simply states that mediation was scheduled for February 24, 2026. Footnote 29 [ 44 ] In D  v  [NAME] , the Appeal Division refused permission to appeal. It involved an application for the [NAME] disability pension. Footnote 30 I’m not sure why the Claimant cited this case as I don’t see how it applies because it wasn’t about misconduct and EI benefits. [ 45 ] In [NAME]   v   [NAME] Commission and X, the Appeal Division found that the [NAME] had overlooked some important evidence. This case was about misconduct and EI benefits. The Appeal Division substituted with its own decision and concluded that the Employer had failed to establish misconduct. Footnote 31 This decision wasn’t binding on the [NAME], so it didn’t have to follow it. [ 46 ] The [NAME] reasons are adequate and explained why it made the decision it did. Footnote 32 It found the Employer had proven the Claimant lost her job due to misconduct. The [NAME] also correctly stated and applied the law and case law in its decision. Footnote 33 So, there is no arguable case that it made any legal errors. Footnote 34 The Claimant argues that the [NAME] made important factual errors [ 47 ] The Claimant argues that the [NAME] made important factual errors because the testimony from the Employer’s witness was self-serving and discreditable, unreliable and biased and only bolsters the Employer’s cause. She also says the Employer provided some hearsay evidence, and so the [NAME] should have given low weight. [ 48 ] She maintains that the Employer perpetrated a deliberate attack against her because they feared she would expose them and their appalling malpractices. And she says that the outcome of her ESA complaint was irrelevant to prove her misconduct because she’s appealed it to the OLRB. [ 49 ] Finally, she says that EI benefits have already been paid and she hasn’t been able to secure employment. She says that the [NAME] arrived at the wrong conclusion. There is no arguable case that the [NAME] based its decision on any important factual errors [ 50 ] The [NAME] makes an important factual error if it bases its decision on a factual finding it made by ignoring or misunderstanding relevant evidence. Footnote 35 [ 51 ] The [NAME] found that the Claimant lost her job on October 31, 2024. It found she was dismissed because she made discriminatory remarks when she spoke to the [NAME] on October 19, 2024. Footnote 36 [ 52 ] It found the Employer and his Witness were more credible than the Claimant’s own evidence about what happened. Footnote 37 It was entitled to weigh and prefer that evidence. And it was also allowed to accept hearsay evidence because the [NAME] doesn’t have to follow the strict rules of evidence. [ 53 ] The [NAME] did find that the Claimant had accessed and printed documents but that it didn’t amount to misconduct because she had printed them to protect herself and not undermine the Employer’s interest. Footnote 38 [ 54 ] The [NAME] was also aware of the complaints the Claimant made about the Employer to other forums. It correctly stated that it wasn’t bound by the findings of the Ministry of Labour Inspector and the workplace investigator. However, it noted that its “findings cast doubt on some of the Claimant’s assertions before me, including that her employer owed her a bonus payment.” Footnote 39 In any event, the issue before it was about misconduct and not whether she was owed a bonus payment. And that’s what it focused on. [ 55 ] The [NAME] found that the Claimant’s actions were deliberate. Footnote 40 It concluded that she knew, or should have known, that making discriminatory remarks and looking for information to use against her employer amounted to misconduct and led to the loss of her employment. Footnote 41 [ 56 ] The [NAME] decided that her conduct breached the employer’s policy and “rules.” Footnote 42 Because of that, it concluded that she lost her job due to misconduct and was disqualified from getting benefits. Footnote 43 [ 57 ] The Claimant is re-arguing her case because she disagrees with the [NAME]’s decision and how the evidence was weighed. The Appeal Division has a limited mandate and a disagreement with the outcome isn’t a reviewable error. Footnote 44 [ 58 ] The [NAME] is the trier of fact. I can’t intervene in the [NAME]’s conclusion where it applies settled law to the facts. Footnote 45 Put another way, I can’t reweigh the evidence in order to reach a different conclusion for the Claimant. [ 59 ] I see no arguable case that the [NAME] based its decision on any important factual errors. Footnote 46 Its key findings are consistent with the evidence before it. And it didn’t ignore or misunderstand any relevant evidence when it decided the misconduct issue. [ 60 ] There are no other reasons for giving the Claimant permission to appeal. Footnote 47 Conclusion [ 61 ] Permission to appeal is refused. This means that the appeal will not proceed. It has no reasonable chance of success. Footnotes Footnote 1 See Commission’s initial and reconsideration decision at pages GD3-38 and GD3-131. Return to footnote 1 referrer Footnote 2 [NAME] decision at pages AD1-56 to AD1-69. Return to footnote 2 referrer Footnote 3 See Application to the Appeal Division at pages AD1-1 to AD1-69. Return to footnote 3 referrer Footnote 4 See section 58(2) of the Department of Employment and [NAME] Development Act ( DESD Act). Return to footnote 4 referrer Footnote 5 See section 58(1) of the DESD Act. Return to footnote 5 referrer Footnote 6 [NAME]  v  Canada ([NAME]), 2016  FC  11 at paragraph 12 and sections 56(1) and 58(2) of the DESD Act. Return to footnote 6 referrer Footnote 7 See pages AD1-1 to AD1-69. Return to footnote 7 referrer Footnote 8 [NAME]  v  Canada ([NAME]) , 2020  FCA  29 at paragraph 29;  [NAME]  v  Canada ([NAME]) , 2020  FCA  33 at paragraph 12; and  [NAME]  v  Canada ([NAME]) , 2019  FCA  44 at paragraph 29. Return to footnote 8 referrer Footnote 9 See pages GD4-1 to GD4-12. Return to footnote 9 referrer Footnote 10 Listen to the audio recording at 20:29 to 20:55. Return to footnote 10 referrer Footnote 11 Listen to the audio recording at 18:47 to 28:50. Return to footnote 11 referrer Footnote 12 Listen to the audio recording at 29:10 to 35:00. Return to footnote 12 referrer Footnote 13 See section 8(1) of the [NAME] Security Tribunal Rules of Procedure ( [NAME]). Return to footnote 13 referrer Footnote 14 See section 8(2) and 17(2) of the  [NAME]. Return to footnote 14 referrer Footnote 15 Listen to the audio recording at 46:53 to 47:27, 49:00 to 49:24 and 1:36:00 to 1:36:30. Return to footnote 15 referrer Footnote 16 Listen to the audio recording at 2:51:50 to 2:58:40. Return to footnote 16 referrer Footnote 17 See pages GD10-1 to GD10-3, GD11-1 to GD11-9, GD12-1 to GD12-16, GD13-1 to GD13-9 and GD14-1 to GD14-16. Return to footnote 17 referrer Footnote 18 Listen to the audio recording at 2:56:54. Return to footnote 18 referrer Footnote 19 See section 58(1)(a) of the DESD Act. Return to footnote 19 referrer Footnote 20 See pages AD1-24 to AD1-55. Return to footnote 20 referrer Footnote 21 See section 30(1) of the Employment Insurance Act ( EI Act). Return to footnote 21 referrer Footnote 22 [NAME]  v  Canada ([NAME]),  2007  FCA  36. Return to footnote 22 referrer Footnote 23 [NAME],  at paragraph 14. Return to footnote 23 referrer Footnote 24 See paragraph 51 of the [NAME] decision. Return to footnote 24 referrer Footnote 25 See section 49(2) of the EI Act says that the Commission shall give the benefit of the doubt to the claimant on the issue of whether any circumstances or conditions exist that have the effect of disqualifying the claimant under section 30 or disentitling the claimant under section 31, 32 or 33, if the evidence on each side of the issue is equally balanced. Return to footnote 25 referrer Footnote 26 See Canada ([NAME])  v  [NAME] , 2007  FCA  107. Return to footnote 26 referrer Footnote 27 [NAME]  v  Canada ([NAME]), 2024  FCA  102 and Kuk  v  Canada ([NAME]), 2023  FCA  74. Return to footnote 27 referrer Footnote 28 [NAME]  v  Canada ([NAME]),  2015  FC  1300 at paragraphs 29 and 34; [NAME]  v  Canada ([NAME]),  2017  FC  354, at paragraph 23. The exceptions to new evidence are set out in [NAME]   v   Canada ([NAME]),  2018  FCA  48 and  [NAME]  v  Canada ([NAME]), 2022  FCA  157 at paragraphs 37–39. Return to footnote 28 referrer Footnote 29 See page AD1-31. Return to footnote 29 referrer Footnote 30 See pages AD1-34 to AD1-42. Return to footnote 30 referrer Footnote 31 See pages AD1-43 to AD1-53. Return to footnote 31 referrer Footnote 32 See paragraph 29 of the [NAME] decision. Return to footnote 32 referrer Footnote 33 See paragraphs 7 and 49–51 of the [NAME] decision. Return to footnote 33 referrer Footnote 34 See section 58(1)(b) of the DESD Act. Return to footnote 34 referrer Footnote 35 This is a plain language explanation of section 58(1)(c) of the  DESD  Act which says a factual error happens when the [NAME] has “based its decision on an erroneous finding of fact it made in a perverse or capricious manner or without regard for the material before it.” Return to footnote 35 referrer Footnote 36 See paragraphs 42 and 46 of the [NAME] decision. Return to footnote 36 referrer Footnote 37 See paragraphs 23–30 and 57 of the [NAME] decision. Return to footnote 37 referrer Footnote 38 See paragraphs 59–62 of the [NAME] decision. Return to footnote 38 referrer Footnote 39 See paragraph 40 of the [NAME] decision. Return to footnote 39 referrer Footnote 40 See paragraph 61 of the [NAME] decision. Return to footnote 40 referrer Footnote 41 See paragraph 56 of the [NAME] decision. Return to footnote 41 referrer Footnote 42 See paragraphs 53–55 of the [NAME] decision. Return to footnote 42 referrer Footnote 43 See paragraphs 64–65 of the [NAME] decision and section 30(1) of the EI Act. Return to footnote 43 referrer Footnote 44 See section 58(1) of the  DESD  Act. Return to footnote 44 referrer Footnote 45 [NAME]  v  Canada ([NAME]),  2018  FCA  118 at paragraphs 9–11. Return to footnote 45 referrer Footnote 46 See section 58(1)(c) of the DESD Act. Return to footnote 46 referrer Footnote 47 The Federal Court has recommended such a review in  [NAME]   v   Canada ([NAME]), 2016  FC  874 and  [NAME]  v  Canada ([NAME]),  2016  FC  615. Return to footnote 47 referrer