Employment Insurance Benefit Entitlement (8:VII) - Revision history

LSLAP at 19:08, 13 October 2025

2025-10-13T19:08:54Z

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	{{REVIEWED LSLAP \| date= August ~~8, 2024~~}}		{{REVIEWED LSLAP \| date= 1 August 2025}}
	{{LSLAP Manual TOC\|expanded = EI}}		{{LSLAP Manual TOC\|expanded = EI}}

LSLAP: /* 2. Full-Time Course or Training Program */

2025-09-28T20:09:03Z

2. Full-Time Course or Training Program

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	=== 2. Full-Time Course or Training Program ===		=== 2. Full-Time Course or Training Program ===
	In [https://canlii.ca/t/2f3q7 Cryenne] (2010) the Federal Court of Appeals held that a “presumption of non-availability” arises when someone is in school or training full-time. Without evidence to the contrary, a claimant enrolled in full-time training is presumed to be unavailable for work, and ineligible for EI regular benefits. Though the question of whether a claimant’s full-time training makes them unavailable for work is fact-specific, the FCA has referred to various principles which rebut the presumption of non-availability. In [https://canlii.ca/t/k4x0p S.N] (2024) the General Division of the SST summarized those principles as including:		In ''[https://canlii.ca/t/2f3q7 Cryenne]'', (2010) the Federal Court of Appeals held that a “presumption of non-availability” arises when someone is in school or training full-time. Without evidence to the contrary, a claimant enrolled in full-time training is presumed to be unavailable for work, and ineligible for EI regular benefits. Though the question of whether a claimant’s full-time training makes them unavailable for work is fact-specific, the FCA has referred to various principles which rebut the presumption of non-availability. In ''[https://canlii.ca/t/k4x0p S.N]'', (2024) the General Division of the SST summarized those principles as including:

	* having a history of full-time employment while studying full-time		* having a history of full-time employment while studying full-time

LSLAP: /* c) Misconduct outside of work */

2025-09-28T20:08:01Z

c) Misconduct outside of work

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	==== c) Misconduct outside of work ====		==== c) Misconduct outside of work ====
	For an alleged offence to be misconduct, it is not necessary that it be committed at work, or in an employment context.. There must be a causal relationship between the misconduct which an employee is accused of and their employment, however the bar for finding such a relationship is low. For example in [https://canlii.ca/t/h377n S.S. v CEIB] (2016) the General Division of the SST found that offensive conduct done by an employee outside of work was misconduct, on the basis that a video of it went viral and ultimately damaged his employer’s reputation.		For an alleged offence to be misconduct, it is not necessary that it be committed at work, or in an employment context.. There must be a causal relationship between the misconduct which an employee is accused of and their employment, however the bar for finding such a relationship is low. For example in ''[https://canlii.ca/t/h377n S.S. v CEIB]'', (2016) the General Division of the SST found that offensive conduct done by an employee outside of work was misconduct, on the basis that a video of it went viral and ultimately damaged his employer’s reputation.

	==== e) Onus of proving misconduct ====		==== e) Onus of proving misconduct ====

LSLAP: /* 2. Misconduct */

2025-09-28T20:07:17Z

2. Misconduct

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	'''The claimant did not know of the express or implied duty'''		'''The claimant did not know of the express or implied duty'''

	An employee cannot be dismissed for misconduct, if they had no knowledge of the duty which their alleged offence breached. There are two categories of duties, express and implied. An express duty is one which the employer directly informs the employee of. As held by the Appeals Division of the SST in [https://canlii.ca/t/k145r J.B v CEIC] (2023), an express duty may be imposed unilaterally at any time during the employment, without the employee’s consent to the instruction, rule, or regulation establishing it. However, the express duty must be specific enough to allow the employee to know what is permissible. Breach of vague duties (e.g., “be a good team player”) cannot be the basis for a dismissal for misconduct.		An employee cannot be dismissed for misconduct, if they had no knowledge of the duty which their alleged offence breached. There are two categories of duties, express and implied. An express duty is one which the employer directly informs the employee of. As held by the Appeals Division of the SST in ''[https://canlii.ca/t/k145r J.B v CEIC]'', (2023), an express duty may be imposed unilaterally at any time during the employment, without the employee’s consent to the instruction, rule, or regulation establishing it. However, the express duty must be specific enough to allow the employee to know what is permissible. Breach of vague duties (e.g., “be a good team player”) cannot be the basis for a dismissal for misconduct.

	An implied duty is one so inherent to an employment relationship that it exists by default, and only a contradictory express term can annul it. An example of an implied duty is an employee’s duty to not steal from their employer. An employee does not have to be told that they have a duty not to steal, they ought to know that already. The criteria by which an implied duty is assessed is whether the employee ought to know of its existence, irrespective of whether it was communicated to them or not.		An implied duty is one so inherent to an employment relationship that it exists by default, and only a contradictory express term can annul it. An example of an implied duty is an employee’s duty to not steal from their employer. An employee does not have to be told that they have a duty not to steal, they ought to know that already. The criteria by which an implied duty is assessed is whether the employee ought to know of its existence, irrespective of whether it was communicated to them or not.
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	'''The infraction was not intentional or reckless'''		'''The infraction was not intentional or reckless'''

	Misconduct requires an employee to have the reckless or willful intention of breaching a policy or duty of their employment. An alleged offence is not misconduct if the breach was not intentional or reckless. In [https://canlii.ca/t/h4394 J.M. v Canada EI Commission] the SST held that an employee dismissed for chronic absenteeism should not be denied benefits, because the cause of the final incident was a medical emergency which made it impossible for them to work.		Misconduct requires an employee to have the reckless or willful intention of breaching a policy or duty of their employment. An alleged offence is not misconduct if the breach was not intentional or reckless. In ''[https://canlii.ca/t/h4394 J.M. v Canada EI Commission]'' the SST held that an employee dismissed for chronic absenteeism should not be denied benefits, because the cause of the final incident was a medical emergency which made it impossible for them to work.

	'''Additional considerations in relation to EI misconduct.'''		'''Additional considerations in relation to EI misconduct.'''

	==== a) A legitimate dismissal for misconduct can be unreasonable and discriminatory ====		==== a) A legitimate dismissal for misconduct can be unreasonable and discriminatory ====
	The legal test for misconduct does not require the Commission to investigate the reasonableness, or legality of the policy which the employee was dismissed for breaching. The test only investigates whether the claimant willfully breached an express or implied duty of their employer, while knowing doing so could result in their termination. An employer may have a policy that is unreasonable and discriminatory, but employees who willfully breach it still commit misconduct. The proper avenues for justice, in such circumstances, is legal action for wrongful dismissal and/or discrimination, not the EI claims system. As stated by the Federal Court of Appeals in [https://canlii.ca/t/j0vwq Dubeau] (2019) “it is not the responsibility of Canadian taxpayers to assume the cost of wrongful conduct by an employer by way of employment insurance benefits.”		The legal test for misconduct does not require the Commission to investigate the reasonableness, or legality of the policy which the employee was dismissed for breaching. The test only investigates whether the claimant willfully breached an express or implied duty of their employer, while knowing doing so could result in their termination. An employer may have a policy that is unreasonable and discriminatory, but employees who willfully breach it still commit misconduct. The proper avenues for justice, in such circumstances, is legal action for wrongful dismissal and/or discrimination, not the EI claims system. As stated by the Federal Court of Appeals in ''[https://canlii.ca/t/j0vwq Dubeau]'', (2019) “it is not the responsibility of Canadian taxpayers to assume the cost of wrongful conduct by an employer by way of employment insurance benefits.”

	==== b) Incompetence is not misconduct ====		==== b) Incompetence is not misconduct ====

LSLAP: /* 2. Misconduct */

2025-09-28T20:06:14Z

2. Misconduct

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	Neither the EI Act nor Regulations defines misconduct. In relation to EI, misconduct is defined through case law. Misconduct is different from the concept of “just cause” in employment law. Certain offences allow an employee to be dismissed “with cause,” but do not meet the threshold of misconduct for denying them EI benefits, and vice-versa.		Neither the EI Act nor Regulations defines misconduct. In relation to EI, misconduct is defined through case law. Misconduct is different from the concept of “just cause” in employment law. Certain offences allow an employee to be dismissed “with cause,” but do not meet the threshold of misconduct for denying them EI benefits, and vice-versa.

	To be misconduct, the alleged offence must be willful. This means the claimant’s wrongful conduct was intentional, or so reckless as to be willful. As held by the Federal Court of Appeal in [https://canlii.ca/t/1qgkr Mishibinijima] (2009), willfulness further requires the claimant to have known or ought to have known that their conduct impaired the performance of a duty owed to their employer, and as a result their dismissal was a real possibility. There are three ways for a claimant to dispute that their alleged offence amounts to misconduct.		To be misconduct, the alleged offence must be willful. This means the claimant’s wrongful conduct was intentional, or so reckless as to be willful. As held by the Federal Court of Appeal in ''[https://canlii.ca/t/1qgkr Mishibinijima]'', (2009), willfulness further requires the claimant to have known or ought to have known that their conduct impaired the performance of a duty owed to their employer, and as a result their dismissal was a real possibility. There are three ways for a claimant to dispute that their alleged offence amounts to misconduct.

	'''The claimant did not know of the express or implied duty'''		'''The claimant did not know of the express or implied duty'''

LSLAP: /* 2. Misconduct */

2025-09-28T20:05:25Z

2. Misconduct

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	The Commission cannot make a finding of misconduct if the employer forgave the claimant for an infraction, or imposed a lesser punishment for it, then later dismissed the employee for the same infraction. Once settled, an infraction cannot be revived to dismiss an employee for misconduct.		The Commission cannot make a finding of misconduct if the employer forgave the claimant for an infraction, or imposed a lesser punishment for it, then later dismissed the employee for the same infraction. Once settled, an infraction cannot be revived to dismiss an employee for misconduct.

	As stated by the FCA in [https://canlii.ca/t/fm3b7 Masic] (2011) The alleged offence must not be an excuse or pretext for dismissal; it must cause the loss of employment. The FCA further held in [https://canlii.ca/t/fs7x9 Doucet] (2012) that the Commission must be satisfied (on the balance of probabilities) that the alleged offence was the “main reason” for the claimant’s suspension or dismissal. This does not mean the employer cannot have other reasons influencing their decision to dismiss an employee (such reasons may even be unreasonable or discriminatory) only that their main reason must be the alleged offence.		As stated by the FCA in ''[https://canlii.ca/t/fm3b7 Masic]'', (2011) The alleged offence must not be an excuse or pretext for dismissal; it must cause the loss of employment. The FCA further held in ''[https://canlii.ca/t/fs7x9 Doucet]'', (2012) that the Commission must be satisfied (on the balance of probabilities) that the alleged offence was the “main reason” for the claimant’s suspension or dismissal. This does not mean the employer cannot have other reasons influencing their decision to dismiss an employee (such reasons may even be unreasonable or discriminatory) only that their main reason must be the alleged offence.

	'''The claimant committed the alleged offence'''		'''The claimant committed the alleged offence'''
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	Once it has been established that the claimant lost their employment due to an alleged offence, the Commission must determine whether the claimant was the actual cause of the offence. If the claimant argues they were not, the Commission will gather evidence from both parties, and possibly hear from third-party witnesses, to determine whose version of events is more credible.		Once it has been established that the claimant lost their employment due to an alleged offence, the Commission must determine whether the claimant was the actual cause of the offence. If the claimant argues they were not, the Commission will gather evidence from both parties, and possibly hear from third-party witnesses, to determine whose version of events is more credible.

	The onus of proving the claimant committed an alleged offence, on the balance of probabilities, lies with their employer and the Commission. The Commission must be cognizant of the FCA’s holding in [https://canlii.ca/t/4m8t Crichlow] (1998), that an employer’s mere suspicion or speculation cannot result in a finding of misconduct, and the grave consequences is carries, without clear evidence to support it.		The onus of proving the claimant committed an alleged offence, on the balance of probabilities, lies with their employer and the Commission. The Commission must be cognizant of the FCA’s holding in ''[https://canlii.ca/t/4m8t Crichlow]'', (1998), that an employer’s mere suspicion or speculation cannot result in a finding of misconduct, and the grave consequences is carries, without clear evidence to support it.

	'''The alleged offence constitutes misconduct'''		'''The alleged offence constitutes misconduct'''

LSLAP: /* a) Statute & Case Law */

2025-09-28T20:04:22Z

a) Statute & Case Law

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	:(xiv) any other reasonable circumstances that are prescribed.		:(xiv) any other reasonable circumstances that are prescribed.

	To date the only prescribed circumstance under s. 29(c)(xiv) is EI Regulations s. 51.1, where if the claimant’s leaving preserved the employment of a co-worker, whose employment would otherwise have been terminated through a work-force reduction process, they had just cause.		To date the only prescribed circumstance under s. 29(c)(xiv) is ''EI Regulations'' s. 51.1, where if the claimant’s leaving preserved the employment of a co-worker, whose employment would otherwise have been terminated through a work-force reduction process, they had just cause.

	A claimant must have done everything possible to avoid quitting, to support a finding of just cause. In ''[https://www.canlii.org/en/ca/fca/doc/2007/2007fca320/2007fca320.html?autocompleteStr=Canada%20v%20Hernandez%2C%202007%20FCA%20320&autocompletePos=1 Canada v Hernandez]'', 2007 FCA 320 the claimant was disqualified for quitting his job after a public health nurse informed him that silica dust used in his workplace was a carcinogen. The court decided he did not exhaust his alternatives because he should have asked the employer to change its business or find him a new job somewhere else.		A claimant must have done everything possible to avoid quitting, to support a finding of just cause. In ''[https://www.canlii.org/en/ca/fca/doc/2007/2007fca320/2007fca320.html?autocompleteStr=Canada%20v%20Hernandez%2C%202007%20FCA%20320&autocompletePos=1 Canada v Hernandez]'', 2007 FCA 320 the claimant was disqualified for quitting his job after a public health nurse informed him that silica dust used in his workplace was a carcinogen. The court decided he did not exhaust his alternatives because he should have asked the employer to change its business or find him a new job somewhere else.

LSLAP: /* a) Statute & Case Law */

2025-09-25T22:10:41Z

a) Statute & Case Law

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	To date the only prescribed circumstance under s. 29(c)(xiv) is EI Regulations s. 51.1, where if the claimant’s leaving preserved the employment of a co-worker, whose employment would otherwise have been terminated through a work-force reduction process, they had just cause.		To date the only prescribed circumstance under s. 29(c)(xiv) is EI Regulations s. 51.1, where if the claimant’s leaving preserved the employment of a co-worker, whose employment would otherwise have been terminated through a work-force reduction process, they had just cause.

	A claimant must have done everything possible to avoid quitting, to support a finding of just cause. In [https://www.canlii.org/en/ca/fca/doc/2007/2007fca320/2007fca320.html?autocompleteStr=Canada%20v%20Hernandez%2C%202007%20FCA%20320&autocompletePos=1 Canada v Hernandez], 2007 FCA 320 the claimant was disqualified for quitting his job after a public health nurse informed him that silica dust used in his workplace was a carcinogen. The court decided he did not exhaust his alternatives because he should have asked the employer to change its business or find him a new job somewhere else.		A claimant must have done everything possible to avoid quitting, to support a finding of just cause. In ''[https://www.canlii.org/en/ca/fca/doc/2007/2007fca320/2007fca320.html?autocompleteStr=Canada%20v%20Hernandez%2C%202007%20FCA%20320&autocompletePos=1 Canada v Hernandez]'', 2007 FCA 320 the claimant was disqualified for quitting his job after a public health nurse informed him that silica dust used in his workplace was a carcinogen. The court decided he did not exhaust his alternatives because he should have asked the employer to change its business or find him a new job somewhere else.

	==== b) Importance of Evidence ====		==== b) Importance of Evidence ====

LSLAP: /* 2. Full-Time Course or Training Program */

2025-09-21T21:08:56Z

2. Full-Time Course or Training Program

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	'''NOTE''': For more information, refer to:		'''NOTE''': For more information, refer to:
	www.canada.ca/en/employment-social-development/programs/ei/ei-list/courses-training.html		[http://www.canada.ca/en/employment-social-development/programs/ei/ei-list/courses-training.html www.canada.ca/en/employment-social-development/programs/ei/ei-list/courses-training.html]

	==== a) Referral from a Province or Indigenous Organization ====		==== a) Referral from a Province or Indigenous Organization ====

LSLAP: /* 2. Full-Time Course or Training Program */

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2. Full-Time Course or Training Program

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	* having a history of full-time employment while studying full-time		* having a history of full-time employment while studying full-time
	* • the existence of “'''exceptional circumstances'''” that would enable the claimant to work while taking their course (for example, whether the claimant has a history of working part-time while studying full-time, whether the claimant has a history of being employed at irregular hours, the attendance requirements of the course, the claimant’s willingness to give up their studies to accept employment)		* the existence of “'''exceptional circumstances'''” that would enable the claimant to work while taking their course (for example, whether the claimant has a history of working part-time while studying full-time, whether the claimant has a history of being employed at irregular hours, the attendance requirements of the course, the claimant’s willingness to give up their studies to accept employment)

	Because the presumption of non-availability requires exceptional circumstances to rebut, claimants should always seek a referral from a designated authority before enrolling in full-time training. Under section 25 of the EI Act, claimants referred to a full-time training program by a designated authority are deemed to be unemployed, capable of and available for work for the duration of their participation in the course or program.		Because the presumption of non-availability requires exceptional circumstances to rebut, claimants should always seek a referral from a designated authority before enrolling in full-time training. Under section 25 of the EI Act, claimants referred to a full-time training program by a designated authority are deemed to be unemployed, capable of and available for work for the duration of their participation in the course or program.