People who pay in to the Employment Insurance (“EI”) system are eligible for EI Regular Benefits when they lose their job. Too often, people who lose their job due to issues around addiction are denied EI due to the way the law treats addictions in this context.
Someone claiming benefits can be disqualified from receiving EI if they were terminated for “misconduct”. The Social Security Tribunal, which hears appeals of decisions around EI benefit eligibility, has defined misconduct as an act that was “wilful” or “voluntary” in the sense that the employee “wilfully disregarded the effects his or her actions would have on job performance.”[1]
The Federal Court of Appeal has ruled several times that absences due to addiction are voluntary and qualify as misconduct, and that therefore people fired due to addiction-related issues do not qualify for EI benefits. Specifically, the Court has held that the consumption of substances by an individual suffering from addiction is done voluntarily, in that the acts are “conscious” and that the individual is “aware of the effects of that consumption and the consequences which could or would result.”[2]
ISAC is co-counselling with West End Legal Services of Ottawa in an appeal that directly challenges this line of Employment Insurance caselaw.
Our client was terminated from his employment due to two brief absences from work following relapses into his addiction. On top of losing his job, he was denied EI benefits on the basis that his firing was due to misconduct and that his absences from work were voluntary even though they stemmed from his addiction.
ISAC and West End Legal Services will appeal this decision to the Social Security Tribunal and are currently obtaining expert medical evidence on the nature of addiction and voluntariness. A hearing date for the appeal has not yet been set.
[1] S. M. v. Canada Employment Insurance Commission, 2014 SSTGDEI 50 (CanLII), at para. 41
[2] Mishibinijima v. Canada, 2007 FCA 36, at para. 33
– May 17, 2016
