Executive Summary: Key Legal and Evidentiary Issues

• Taghreed Azar, a supply teacher at a daycare centre, resigned citing constructive dismissal after a dispute over unpaid sick days and a reduced work schedule she believed was retaliatory.

• Under s 30(1) of the Employment Insurance Act, the Employment Insurance Commission denied her benefits, concluding she voluntarily left without just cause.

• The General Division dismissed her appeal, finding her evidence unreliable and determining she was an "on-call" worker without guaranteed hours rather than a full-time employee.

• Inappropriate employer language and workplace discomfort were acknowledged but deemed insufficient to constitute bullying, harassment, or intimidation by the General Division.

• The Appeal Division refused leave to appeal but critically failed to address Ms. Azar's key argument regarding the Ministry of Labour's findings that her employer had neither a Human Resources manager nor a Health and Safety Committee.

• The Federal Court found the Appeal Division's decision unreasonable for failing to grapple with this central argument, and remitted the matter to a new panel for redetermination.

Background and employment dispute

Taghreed Azar began working as a supply teacher at a daycare centre in 2022. In November 2023, she took two days off work due to illness, but her employer refused to pay her for those absences. Ms. Azar raised the issue with her employer on December 22, 2023, and again on April 8, 2024. The employer responded that the sick day request had been submitted too late for the 2023 payroll cycle and that, if paid, the two days would be deducted from her 2024 allotment of three sick days.

Escalation and resignation

On April 11, 2024, the employer agreed to compensate Ms. Azar for only one of the two sick days and sent her an e-mail stating, "I wish you can stop blaming others for your mistakes." Shortly thereafter, Ms. Azar received her schedule for the week of April 15, 2024, and was assigned only two days of work instead of her usual five-day schedule. Ms. Azar believed this reduction was retaliatory. On Monday, April 15, 2024, she told her employer she would miss work due to illness. She was offered additional shifts that week but declined them. On April 18, 2024, she informed her employer she was resigning, citing constructive dismissal. She subsequently filed a complaint with the Ministry of Labour and applied for employment insurance benefits. In June 2024, following an investigation by the Ministry, Ms. Azar was paid for the second sick day she took in November 2023.

Employment insurance claim and tribunal proceedings

The Employment Insurance Commission denied Ms. Azar's application for benefits, concluding that she voluntarily left her employment without just cause under s 30(1) of the Employment Insurance Act. Just cause exists if the claimant had no reasonable alternative to leaving. Upon reconsideration, the Commission maintained its initial decision. Ms. Azar then appealed to the General Division of the Social Security Tribunal, which dismissed the appeal. The General Division found Ms. Azar's evidence to be unreliable, concluding based on her pay stubs and contract of employment that she was an "on-call" worker without guaranteed hours, not a full-time employee as she had claimed. It also accepted the evidence of her employer that, by mid-April, permanent staff had returned from vacation, which explained the reduction in Ms. Azar's hours. While the General Division acknowledged the employer's inappropriate language in the April 11, 2024 e-mail and accepted that she may have been uncomfortable when the owners of the daycare centre spoke with other teachers in a language she did not understand, it found this did not amount to bullying, harassment, or intimidation.

The Appeal Division's refusal and the Ministry of Labour findings

Ms. Azar sought leave to appeal to the Appeal Division, prominently raising the Ministry of Labour's findings that her former employer had neither a Human Resources manager nor a Health and Safety Committee, and had been asked to hire an external HR consultant to conduct an investigation. She also noted that the Ministry's report was only received after her claim for EI benefits had been denied, and she appended a copy of the report to her application for leave to appeal. The Appeal Division refused leave to appeal, finding no arguable case that the General Division had made an important error of fact. Critically, however, the Appeal Division's decision said nothing about Ms. Azar's complaints to the Ministry, or its findings regarding the absence of a Human Resources manager and a Health and Safety Committee at her former workplace.

Federal Court ruling and outcome

The Federal Court, applying the standard of reasonableness as established in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, found the Appeal Division's decision to be unreasonable. Justice Fothergill held that the Appeal Division failed to grapple with a key argument advanced by Ms. Azar — namely, whether the absence of a Human Resources manager and a Health and Safety Committee may have given her just cause to resign her position — rendering its decision unreasonable pursuant to Vavilov at para 128. The application for judicial review was therefore allowed, and the matter was remitted to a differently-constituted panel of the Appeal Division of the Social Security Tribunal for redetermination. As Ms. Azar was not represented by counsel and did not request costs, no costs were awarded. No specific monetary amount was determined by the Court, as the judgment was procedural in nature, sending the matter back for a fresh hearing.