Decisions by subject: Employment Insurance

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Use this tool to find relevant decisions that could help you prepare for your Employment Insurance (EI) appeal. The tool is organized by subjects that may be part of an EI appeal . It includes links to relevant decisions from the Supreme Court of Canada, the Federal Court of Appeal and the Federal Court. The tool will be updated over time.

If the legislation changes or the court decides otherwise, some of the decisions listed here tool may no longer be relevant.

This tool does not include the Tribunal’s decisions. However, all final Appeal Division decisions and a selection of General Division decisions are available.

This page contains external hyperlinks. For information on our hyperlinking practices, refer to the Terms and conditions.

Antedate – Late initial claims – Subsection 10(4) of the Employment Insurance Act

Legislation

Conditions for antedating a claim

Rationale and general principles

Good cause for delay

Notion of good cause

Duty on claimants: reasonable and prudent person in the same circumstances

Good cause: Examples of factual assessments

Ignorance of the law and good faith

Misinformation

  1. By the Commission
  2. By the employer / placement agency
  3. By a lawyer

Trying to find another job or live on savings

Personal or family circumstances

Length of the delay

Antedate – Other Late Claims – Subsection 10(5) of the Employment Insurance Act

Availability and Suitable Employment – Paragraph 18(1)(a) of the Employment Insurance Act

Paragraph 18(1)(a) of the Employment Insurance Act – Availability for work

Legislation

Legal test

General principles

Legal issues

Application of the test

  1. The desire to return to the labour market as soon as a suitable employment is offered
    1. General principles
    2. Example of factual assessment
  2. The expression of that desire through efforts to find a suitable employment
    1. General principles
    2. Example of factual assessment
  3. No personal conditions that might unduly limit the chances of returning to the labour market
    1. General principles
    2. Examples of factual assessments

Policy to enlarge the job research to remain available to work when moving in a place with less opportunities for re-employment

No case law currently identified

Other considerations

Suitable employment, reasonable job search efforts and the Connecting Canadians with Available Jobs (CCAJ) initiative

The Connecting Canadians with Available Jobs initiative

No case law currently identified

Subsection 50(8) of the Employment Insurance Act – Proof of efforts to obtain employment

  1. General principles

Sections 9.001 to 9.004 of the Employment Insurance Regulations (2012 amendments)

No case law currently identified

Other Circumstances

Interaction between just cause for voluntary leaving an employment, disqualification from receiving benefits and availability for work

  1. Legislation
  2. General principles regarding the interaction between paragraph 29(c) of the Employment Insurance Act, subsection 30(1) of the Employment Insurance Act and section 18 of the Employment Insurance Act
  3. Examples of factual assessments

Presumption of unavailability when going to school

  1. General principles
  2. Examples of factual assessments

Other circumstances relating to the notion of “availability”

No case law currently identified

Disqualification (including voluntary leave and misconduct) – Sections 27 to 30 of the Employment Insurance Act

Section 27 of the Employment Insurance Act

Legislation

Rationale and interpretation

Test of “good cause” and general principles

Refusal or failure to apply for or to accept suitable employment - Paragraphs 27(1)(a) and (b) of the Employment Insurance Act

Failure to comply with reasonable written directions or to attend an interview - Paragraphs 27(1)(c) and (d) of the Employment Insurance Act

Section 28 of the Employment Insurance Act

Legislation

General principles

Operation of disqualification (Subsections 28(2) to (6) of the Employment Insurance Act)

Sections 29 and 30 of the Employment Insurance Act

Legislation

Interpretation

General principles

Voluntary leaving an employment without “just cause”

  1. The test
  2. “just cause” vs “good cause” vs “good reason”

“Just cause” – Examples of factual assessments

  1. Subparagraph 29(c)(i) of the Employment Insurance Act – Sexual harassment
  2. Subparagraph 29(c)(ii) of the Employment Insurance Act – Voluntary leaving to accompany a spouse or a common-law partner
  3. Subparagraph 29(c)(iii) of the Employment Insurance Act – Discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act
    • No case law currently identified
  4. Subparagraph 29(c)(iv) of the Employment Insurance Act – Working conditions that constitute a danger to health or safety
  5. Subparagraph 29(c)(v) of the Employment Insurance Act – Care for a child or a member of immediate family
  6. Subparagraph 29(c)(vi) of the Employment Insurance Act – Reasonable assurance of another employment
  7. Subparagraph 29(c)(vii) of the Employment Insurance Act – Significant modification of terms and conditions respecting wages or salary
  8. Subparagraph 29(c)(viii) of the Employment Insurance Act – Excessive overtime work or refusal to pay for overtime work
  9. Subparagraph 29(c)(ix) of the Employment Insurance Act – Significant changes in work duties
  10. Subparagraph 29(c)(x) of the Employment Insurance Act – Antagonism with the supervisor if the claimant is not primarily responsible for the antagonism
  11. Subparagraph 29(c)(xi) of the Employment Insurance Act – Practices of an employer that are contrary to law
    • No case law currently identified
  12. Subparagraph 29(c)(xii) of the Employment Insurance Act – Discrimination with regard to employment because of membership in an association, organization or union of the workers
    • No case law currently identified
  13. Subparagraph 29(c)(xiii) of the Employment Insurance Act – Undue pressure by an employer on claimant to leave their employment
  14. Subparagraph 29(c)(xiv) of the Employment Insurance Act – Any other reasonable circumstances that are prescribed (see section 51.1 of the Employment Insurance Regulations)
  15. Other situations
    1. Situations not listed in paragraph 29(c) of the Employment Insurance Act
    2. Workforce reduction process (see section 51 of the Employment Insurance Regulations)
    3. Leave employment to return to school or to retrain

“Misconduct”

Test and interpretation

General principles

Examples of factual assessments

Subsection 30(5) of the Employment Insurance Act - Restriction on qualifying for benefits

Disentitlement – Labour Disputes – Section 36 of the Employment Insurance Act

Disentitlement – Labour Disputes – Section 36 of the Employment Insurance Act

Section 36 of the Employment Insurance Act

  1. Legislation: Subsection 2(1) of the Employment Insurance Act – Definition of “Labour Dispute”
  2. Legislation: Subsections 36(1) to 36(5) of the Employment Insurance Act

Interpretation

General principles

Subsection 36(1) of the Employment Insurance Act

  1. General principles
  2. Examples of factual assessments

Subsection 36(2) of the Employment Insurance Act

No case law currently identified

Subsection 36(3) of the Employment Insurance Act

No case law currently identified

Subsection 36(4) of the Employment Insurance Act

  1. Interpretation: “Financing”, “Directly Interested”, “Participating”
  2. General principles
    1. General principles relating to essential services orders
  3. Examples of factual assessments

Subsection 36(5) of the Employment Insurance Act

No case law currently identified

Section 52 of the Employment Insurance Regulations

No case law currently identified

Section 53 of the Employment Insurance Regulations

No case law currently identified

Disentitlement – Claimants Outside of Canada – Section 37 of the Employment Insurance Act and section 55 of the Employment Insurance Regulations

Paragraph 37(b) of the Employment Insurance Act

Legislation

General principles

Interpretation of “Any period”

  1. Examples of factual assessments

Privacy Act and Canadian Charter of Rights and Freedoms challenges

Section 2 of the Employment Insurance Act – Section 55 of the Employment Insurance Regulations – exceptions to paragraph 37(b) of the Employment Insurance Act

Legislation

General principles

Paragraphs 55(1)(a) and (c) of the Employment Insurance Regulations – Medical treatment outside of Canada

Paragraphs 55(1)(b) and (d) of the Employment Insurance Regulations – Funeral of an immediate family member and seriously ill or injured immediate family member who is outside of Canada

Paragraphs 55(1)(e) and (f) of the Employment Insurance Regulations – Bona fide job interview and search outside of Canada

Subsection 55(4) of the Employment Insurance Regulations – Maternity, parental, compassionate care, critically ill child and training benefits for claimants outside Canada

Subsection 55(5) of the Employment Insurance Regulations – Special benefits for claimants with insurable employment outside of Canada

No case law currently identified

Subsection 55(6) of the Employment Insurance Regulations – Claimants who reside outside of Canada

Subsections 55(7) to (10) of the Employment Insurance Regulations – Number of weeks of benefits for claimants referred to in subsections 55(5) and (6)

No case law currently identified

Subsection 55(11) of the Employment Insurance Regulations – Self-employment employment benefits

No case law currently identified

Subsections 55(12) and (13) of the Employment Insurance Regulations – Claim for benefits

No case law currently identified

Section 55.01 of the Employment Insurance Regulations – Self-employed persons outside of Canada

No case law currently identified

Additional conditions and terms in relation to teachers – Section 33 of the Employment Insurance Regulations

Legislation

General principles

Canadian Charter of Rights and Freedoms

General principles

Canadian Charter of Rights and Freedoms

Teaching and non-teaching periods

Non-teaching periods

Teaching

Exceptions to general rule that teachers are not entitled to regular benefits

General principles

Contract of employment for teaching has terminated

  1. Purpose
  2. Legal test and nature of the question
  3. Interpretation and relevant considerations
  4. Application in specific cases
    1. Contract not terminated
    2. Contract terminated

Employment in teaching was on a casual or substitute basis

  1. Interpretation
  2. Application in specific cases

Qualifies to receive benefits in respect of employment in an occupation other than teaching

No case law currently identified

Penalties, offences, notices of violation and warnings – Sections 7.1 and 38 to 41.1 of the Employment Insurance Act

Overview of the EI Act’s scheme of penalties, offences, notice of violation, and warnings

Increase in required hours: Section 7.1 of the EI Act

General principles

Interpretation of subsections 7.1(1) to 7.1(4) of the EI Act

Application of subsections 7.1(1) to 7.1(4) of the EI Act in specific cases

Interpretation of subsections 7.1(5) to 7.1(7) of the EI Act

Application of subsections 7.1(5) to 7.1(7) of the EI Act in specific cases

Penalty for claimants, etc.: Section 38 of the EI Act

Interpretation of Section 38 of the EI Act

Legal test and nature of the question

Onus and burden of proof

Evidence

Discretion to impose and jurisdiction to review a penalty

Mitigating circumstances

Application of Section 38 of the EI Act in specific cases

Penalty for employers, etc.: Section 39 of the EI Act

Interpretation

Limitation on imposition of penalties: Section 40 of the EI Act

General principles

Application in specific cases

Rescission, etc., of penalty: Section 41 of the EI Act

General principles

Warnings: Section 41.1 of the EI Act

Interpretation of Section 41.1 of the EI Act

Application of Section 41.1 of the EI Act in specific cases

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