Although "misconduct" and "voluntary leaving" are two distinct notions, they are dealt with together in section 30 of the Employment Insurance Act. Legally speaking, the issue under appeal before a Board of Referees is a disqualification imposed under these sections of the legislation. If, on the facts before it, the Board is satisfied that a claimant lost his or her employment either by reason of voluntarily leaving that employment or being dismissed for misconduct, it is duty-bound to confirm the disqualification imposed under the legislation, regardless of whether the Commission had thought that the other cause was the one involved.
Canada (A.G.) v. Dufour [1993], F.C.J. No. 1370 (F.C.A.) A-1398-92
Canada (A.G.) v. Easson [1994], F.C.J. No. 124 (F.C.A.) A-1598-92
Canada (A.G.) v. Eppel,, September 28, 1995, F.C.J. No. 1266 (F.C.A.) A-3-95
Smith v. Canada (A.G.), September 11, 1997, F.C.J. No. 1182 (F.C.A.) A-875-96
Canada (A.G.) vs. Desson, [2004] F.C.J. No. 1534 (F.C.A.) A-78-04
"Dismissal for misconduct" and "voluntarily leaving without just cause" are two notions rationally linked together because they both refer to situations where loss of employment results from a deliberate action of the employee. The two notions have also been linked for very practical reasons: it is often unclear from the contradictory evidence, especially for the Commission, whether the unemployment results from the employee's own misconduct or from the employee's decision to leave. In the end, since the legal issue is a disqualification under subsection 30(1) of the Act, the finding of the Board or the Umpire can be based on any of the two grounds for disqualification as long as it is supported by the evidence. There is no prejudice to a claimant in so doing because the claimant knows that what is sought is a disqualification from benefits and he is the one who knows the facts that led to the seeking of the disqualification order.
Canada (A.G.) v. Easson [1994], F.C.J. No. 124 (F.C.A.) A-1598-92
Canada (A.G.) v. Borden, [2004] F.C.J. No. 781 (F.C.A.) A-338-03
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2009-05-06