Whether the conduct of an employee causing loss of his or her employment amounts to "misconduct" depends largely on the circumstances of each individual case. The interpretation of the word "misconduct" is a question of law. Whether a particular act or omission on the part of an employee is of such a nature as to fall within the term misconduct is a question of fact.
Canada (A.G.) v. Bedell, [1985] F.C.J. No. 515 (F.C.A.) A-1716-83
Gauthier v. Canada (A.G.), November 10, 1998, F.C.J. No. 1704 (F.C.A.) A-6-98
Canada (A.G.) v. Lee, 2007 FCA 406 A-64-06
In order to constitute misconduct, the conduct must have been wilful or at least of such a careless or negligent nature that one could say the employee wilfully disregarded the effects his or her actions would have on job performance. It requires a mental element of wilfulness, or conduct so reckless as to approach wilfulness.
Canada (A.G.) v. Tucker, [1986] 2 F.C. 329 (F.C.A.) A-381-85
Canada (A.G.) v. Brissette, [1994] 1 F.C. 684 (F.C.A.) A-1342-92
Canada (A.G.) v. Johnson, [2004] F.C.J. No. 432 (F.C.A.) A-296-03
Locke v. Canada (A.G.), [2003] F.C.J. No. 1962 (F.C.A.) A-72-02
The misconduct referred to in the legislation may include a violation of the law, of a regulation or of an ethical rule, and may mean that an essential condition of the employment ceases to be met, resulting in dismissal. Such a condition may be express or implied and may relate to a concrete or more abstract requirement, such as no longer meeting the standards required of an employee who is in a position of trust. However, there must be a causal relationship between the misconduct and the dismissal. It is not sufficient for the misconduct to be a mere excuse or pretext for the dismissal. It must cause the loss of employment and must be an operative cause.
Canada (A.G.) v. Nolet, March 12, 1992 (F.C.A.) A-517-91
Canada (A.G.) v. Brissette, [1994] 1 F.C. 684 (F.C.A.) A-1342-92
Smith v. Canada (A.G.), September 11, 1997, F.C.J. No. 1422 (F.C.A.) A-875-96
Canada (A.G.) v. Nguyen, November 15, 2001, F.C.J. No. 1722 (F.C.A.) A-516-99
Canada (A.G.) v. Cartier, September 19, 2001, F.C.J. No. 1182 (F.C.A) A-168-00
Canada (A.G.) v. Granstrom, [2003] F.C.J. No. 1922 (F.C.A.) A-444-02
In order for there to be misconduct under the Act it is not necessary that there be a wrongful intent. It is sufficient that the act or omission complained of be made "wilfully", that is, consciously, deliberately or intentionally. In other words, there will be misconduct where the claimant knew or ought to have known that his or her conduct was such as to impair the performance of the duties owed to his employer and that, as a result, dismissal was a real possibility.
Canada (A.G.) v. Secours [1995], F.C.J. No.210, (F.C.A.) A-352-94
McKay-Eden v. Canada (A.G.) [1997], F.C.J. No. 718 (F.C.A.) A-402-96
Gault v. Canada, February 4, 1998, F.C.J. No. 147 (F.C.A.) A-927-96
Canada (A.G.) v. Wasylka, [2004] F.C.J. No. 977 (F.C.A.) A-255-03
Canada (A.G.) v. Johnson, [2004] F.C.J. No. 432 (F.C.A.) A-296-03
Mishibinijima v. Canada (A.G.), 2007 FCA 36 A-85-06
Canada (A.G.) v. Lee, 2007 FCA 406 A-64-06
In cases where an employee suddenly becomes unable to carry on his job it does not matter whether the employer or the employee took the initiative in severing the employment relationship. The employment is terminated by necessity, and if a reprehensible act is to be identified as the real cause of that sudden situation, it is misconduct exclusive of just cause whether you approach it from either of the two branches of subsection 28(1) [Now 30(1)] .
Smith v. Canada (A.G.), [1997] F.C.J. No. 1182 (F.C.A.) A-875-96
Canada (A.G.) v. Borden, [2004] F.C.J. No. 781 (F.C.A.) A-338-03
Where an employee who cannot work because he is incarcerated is dismissed, "the dismissal arises out of the fact that the employee is not available, which is itself an inescapable consequence of the deprivation of liberty lawfully imposed on an employee who has committed a prohibited act. Every incarcerated offender must suffer the consequences that result from being imprisoned, namely loss of employment for unavailability." In this case, the employer declared that the defendant failed to show up for work and that, after his release from prison, no decision had been made about hiring him. It is obvious from this statement that the employer considered the employment contract to be terminated.
There is a long line of authorities stating that where an employee, through his own actions amounting to misconduct, can no longer perform the services required from him under the employment contract and as a result loses his employment, that employee "cannot force others to bear the burden of his unemployment, no more than someone who leaves the employment voluntarily."
Canada (A.G.) v. Brissette, [1994] 1 F.C. 684 (F.C.A.) A-1342-96
Canada (A.G.) v. Lavallee, [2003] F.C.J. No. 913 (F.C.A.) A-720-01
Canada (A.G.) v. Borden, [2004] F.C.J. No. 781 (F.C.A.) A-338-03
Canada (A.G.) v. Wasylka, [2004] F.C.J. No. 977 (F.C.A.) A-255-03
It would be fundamentally altering the nature and principles of the employment insurance scheme and Act if employees, who lose their employment as a result of abusing impairing substances such as alcohol or drugs, could be entitled to receive regular unemployment benefits. The legislation already provides for sickness benefits and the respondent has been a recipient of such benefits. The consumption of these substances by claimants is voluntary, in the sense that the acts are conscious and claimants are aware of the effects of that consumption and the consequences which could or would result.
Canada (A.G.) v. Turgeon, [1999] F.C.J. No. 1861 (F.C.A.)
Casey v. Canada (E.I.C.), 2001 FCA 375 A-570-00
Canada (A.G.) v. Wasylka, [2004] F.C.J. No. 977 (F.C.A.) A-255-03
Canada (A.G.) v. Neveu, 2004 FCA 362 A-72-04
Canada (A.G.) v. Richard, [2005] F.C.J. No. 1750 (F.C.A.)
Canada (A.G.) v. Pearson, 2005 FCA 199 A-315-05
Mishibinijima v. Canada (A.G.), 2007 FCA 36 A-85-06
However, when an employee has been dismissed for alcoholism-related misconduct, he or she will not be disqualified from receiving unemployment benefits purusuant to subsection 30(1) of the Employment Insurance Act, if both the fact of the alcoholism and the involuntariness of the conduct in question are established.
Canada (A.G.) v. Bigler, 2009 FCA 91 (F.C.A.) A-62-08
The fact that the conduct in question occurred away from the workplace or outside of work hours does not mean that it does not constitute misconduct under the Act, provided the conduct is sufficiently related to the employment so as to necessitate dismissal.
Canada (A.G.) v. Brissette, [1994] 1 F.C. 684 (F.C.A.) A-1342-92
Being dismissed for cause is not necessarily the same as being dismissed for misconduct. Simple mistakes, incompetence or misunderstandings between an employer and employee may be grounds for dismissal but they do not constitute misconduct under the Act.
Canada (A.G.) v. St. Laurent, January 17, 1984, F.C.J. No. 32 (F.C.A.) A-440-83
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