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*This asterisk denotes recent case law.

Questions to Answer

  1. Did claimant lose employment because of the alleged offence (action or omission)?
  2. Did claimant commit the alleged offence?
  3. Does the alleged offence constitute misconduct?
  4. Should a disqualification?.. or disentitlement apply?


Legal test

The Act does not define "misconduct". The test for misconduct is whether the act complained of was wilful, or at least of such a careless or negligent nature that one could say that the employee wilfully disregarded the effects his or her actions would have on job performance. TUCKER  A-381-85 

"... there will be misconduct where the conduct of a claimant was wilful, i.e. in the sense that the acts which led to the dismissal were conscious, deliberate or intentional. Put another way, there will be misconduct where the claimant knew or ought to have known that his 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."  MISHIBINIJIMA A-85-06. Also see: HASTINGSA-592-06, LEE A-64-06, CAUL A-441-05, WASYLKA A-255-03, LOCKE A-72-02, LANGLOIS A-94-95 and SECOURS A-352-94.

Onus of proof

  1. The employer and the Commission must show that claimant lost his/her employment due to misconduct decision to be made on the balance of probabilities LARIVEE A-473-06, FALARDEAU A-396- 85.
  2. Conflicting evidence should be resolved by accepting the evidence which is reasonable reliable and credible having regard to the circumstances. CUB 39640.
Note: If the evidence on each side of the issue is equally balanced, the Commission shall give the benefit of doubt to the claimant subsection 49(2) CUB 39868 

Key Case Law


TUCKER A-381-85:  See Legal test

*LEPRETRE A-246- 10: Onus of Proof on the employer and Commission to prove misconduct.

LARIVEE A-473- 06, GAGNON A-3-96:  Onus of proof

*CASTONGUAY A-189-09, DROUIN A-190-09, GIRARD A-191-09, GAGNÉ A-193-09, TREMBLAY A-194-09, GUILLEMETTE A-195- 09: The Federal Court of Appeal dismissed the Commission’s appeal stating: “…the claimants involved could not suspect that their behaviour would jeopardize their employment, given that this behaviour had long been tolerated, even by the supervisors, and that these actions had been committed in plain sight and with the knowledge of the supervisors without penalty, at least as far as the claimants knew.”

HASTINGS A-592-06: The fact that the claimant acted "on the spur of the moment" and that he immediately regretted his actions and apologized to his employer shortly thereafter is of no relevance to whether his conduct constitutes misconduct.
JOHNSON A-296-03, MCKAY-EDEN A-402- 96:  Considers the element of wilfulness. Refers to TUCKER

COULOMBE  A-408-07 : The use of illicit drugs, despite an employer's zero tolerance policy, constitutes misconduct. WASYLKA A-255-03: Considers wilfulness of drug consumption.

CLARK  A-315- 06: Loss of driver's license, which was not an essential condition of the employment that had been performed at the time of dismissal.
PAGANO  A-90-07THIBAULT   A-573-04, DESSON A-78-04, COOPER A-126-03, CHURCHI  A-666-02, GRANSTROM  A-444- 02: Loss of driver’s license.

NEVEU  A-72-04, LAVALLÉE A-720-01, CARTIER A-168- 00: Failure to pay traffic fines, MEUNIER  A-130-96, BRISSETTE A-1342-92, NOLET A-517-91, GAUDET A- 990-96Dealing with criminal charges. Definitions of misconduct

LEFEBVRE A -33-03: Falsification of records to hide drug addiction.

LATOUR A-344- 03: Total disability falsely claimed.

NGUYEN A-516-99: Harassment of co-worker.

GAULT A-927-96:  Refusal to comply with employer's order. Reference to claimant's state of mind.

*LEMIRE A-51-10: The Board incorrectly ruled on the severity of the disciplinary measure instead of whether the action in question constituted misconduct within the meaning of the Act.

JOLIN A-200-09, ROBERGE A-176-09, LEE A-64- 06 : The role of the Board was not to determine whether the dismissal by the employer was justified or was the appropriate sanction. The Board had to decide whether disconnecting calls with customers before responding to their inquiries amounted to misconduct under section 30 of the Act. AUCLAIR A-211-06:  It is not for the Board of Referees to consider whether dismissal was the appropriate disciplinary action in view of the alleged misconduct.McNAMARA A-239-06, CAUL  A-441-05, FLEMING  A-274- 05, LOCKE A-72-02, MARION A-135-01, LLOYD A-436-95, FAKHARI A-732-95, EDWARD  and LANGLOIS A-94-95 & A-96-95:  Determination of misconduct vs the reasonableness of the employer's decision to dismiss the claimant.

JOSEPH A-636-85, CHOINIERE A-471-95, CRICHLOW A-562-97:  Type of evidence needed to establish misconduct.

TRAYNOR A-492- 94:  Indefinite period of disqualification

BERUBE A-82-00Upholds CUB 47007, in which the Umpire determined the lack of insured hours since the dismissal to establish a new benefit period.

Misconduct vs Voluntary Leaving: PARKS A-321-97, McDONALD A-297-97:  Considers the necessity for the Board of Referees to state and explain its findings of fact

HALLÉE  A-337-07 : The two previous medication errors ignored by the Board, constituted fundamental evidence that the claimant was dismissed by reason of her own misconduct.

CARON  A-416-08 : Repeated absences can constitute misconduct.

LASSONDE  A-213-09, BIGLER  A-62-08 , MISHIBINIJIMA  A-85-06 (leave to appeal dismissed by the Supreme Court [31967]), PEARSON  A-315-05, RICHARD A-538-04, CASEY A-570-00, TURGEON A- 582-98:  Alcoholism is not in itself proof there is no misconduct

ARMSTRONG A-81- 02:  Suspension for refusal to enter alcohol treatment program as previously agreed.

McNAMARA A-239-06, SMITH (Robert) A-875-96:  Considers misconduct occurring prior to the employment

BUIST et al A-92-01:  Participation in an illegal strike constitutes misconduct

GAGNON A-138- 01:  Failure to report co-worker's fraud.

MURRAY A-245-96:  Frequent lateness

MORROW A-170-98, MORRIS A-291-98 Supreme Court [27354]:  Determining "misconduct" when employer withdraws the original allegations under terms of a settlement agreement; or when a "no fault" settlement for both parties is reached.

COURCHENE  A-294-06, BOULTON  A-45-96: Does the settlement agreement nullify earlier evidence of misconduct?
MCDONALD A-152-96:  Whether misconduct was the real cause of the claimant's dismissal

LANGLOIS A-94-95, EDWARD A-96-95, GUAY A-1036-96, GAUTHIER A- 6-98:  Considers the scope and seriousness of the actions/omissions.

AUCLAIR  A-211-06: As the claimant acknowledged making abusive remarks concerning his employer, it was clear that his remarks were deliberate and voluntary. FORGUES A-257-05:  Threats, offensive remarks and inappropriate behaviour at work violate the employer/employee relationship of trust and constitute misconduct.

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