Employment Insurance (EI)

Decision

[1] The appeal is allowed.  The matter goes back to the General Division for reconsideration.

Overview

[2] The Appellant (Claimant) was a nurse at a public care home. Her employer adopted the parent company’s mandatory COVID-19 vaccination policy, applicable to all employees. The Claimant did not want to be vaccinated. Her employer put her on an unpaid leave of absence.

[3] When the Claimant applied for Employment Insurance (EI) benefits, the Respondent (Commission) denied her benefits because she had been suspended because of her misconduct. Upon reconsideration, the Commission maintained its initial decision. The Claimants appealed the reconsideration decision to the General Division.

[4] The General Division found that the Claimant’s appeal had no reasonable chance of success and summarily dismissed the appeal. It found that the Claimant deliberately did not comply with the employer’s vaccination policy, knew that she would get suspended, and was suspended because of her refusal. The General Division concluded that her suspension was the result of her misconduct.

[5] The Claimant submits that she did not have the opportunity to speak to a live person although she has filed plenty of supporting documents. She submits that making a medical decision for herself is not misconduct under the law. She submits that the employer failed to negotiate with her union and that they have filed grievances on her behalf. She submits that she had the right to refuse treatment by law. The Claimant puts forward that the Commission must demonstrate that the policy is valid and lawful since it is the reason for her suspension.

[6] I must determine whether the General Division made an error in summarily dismissing the Claimant’s appeal.

[7] I am allowing the Claimants appeal. The matter goes back to the General Division for reconsideration.

Issue

[8] Did the General Division make an error by summarily dismissing the Claimant’s appeal?

Analysis

Appeal Division’s mandate

[9] The Federal Court of Appeal has determined that when the Appeal Division hears appeals pursuant to section 58(1) of the Department of Employment and Social Development Act (DESD Act), the mandate of the Appeal Division is conferred to it by sections 55 to 69 of that Act.^{Footnote 1}

[10] The Appeal Division acts as an administrative appeal tribunal for decisions rendered by the General Division and does not exercise a superintending power similar to that exercised by a higher court.^{Footnote 2}

[11] Therefore, unless the General Division failed to observe a principle of natural justice, erred in law, based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it, I must dismiss the appeal.

Did the General Division make an error when it decided to summarily dismissed the Claimant’s appeal?

[12] I must decide whether the General Division erred when it summarily dismissed the Claimant’s appeal.

[13] The Appeal Division has determined that the correct test to be applied in cases of summary dismissal is the following:

• Does the appeal manifestly lack substance, and is it clearly bound to fail?^{Footnote 3}

[14] To be clear, the question is whether that failure is pre-ordained no matter what evidence or arguments might be presented at the hearing. The threshold to summarily dismiss an appeal is high.

[15] The following appeals have been considered to be clearly bound to fail:

• Claimant did not meet qualifying conditions;
• Claimant had insufficient insurable hours; no jurisdiction to make a ruling on the Claimant’s insurable hours;
• Allocation of a Claimant’s undisputed earnings; obligation to repay;
• Claimant had reached the maximum number of weeks paid for sickness benefits.

[16] These examples demonstrate unambiguously when an appeal is clearly bound to fail or pre-ordained to failure.

[17] I note that Parliament has adopted a legislative and regulatory framework that does not authorize the Employment Insurance Section of the General Division to make decisions on the record. The general rule is that appellants must have an opportunity to be heard. Summary dismissal should not be expanded to circumvent that intention.

[18] In the context of summary dismissal, it is therefore not appropriate to consider the case on the merits in the parties’ absence and then find that the appeal has no reasonable chance to succeed.

[19] In her notice of appeal to the General Division, the Claimant submitted, among other things, that making an informed decision not to accept the treatment is not misconduct under the law. She put forward that she was willing to continue daily swabbing and wearing the required mask as she had done the first 20 months of the pandemic. She submitted that the Commission did not investigate properly whether the employer’s policy was valid and that it had failed to consider her rights to privacy and freedom of choice protected by law.

[20] I am of the view that even if the General Division had serious doubts about the Claimant’s arguments, it could not properly find that the appeal was clearly bound to fail regardless of what evidence or arguments might be submitted at a hearing.

[21] I find that the General Division did not explicitly state in its decision the correct test to apply and erroneously decided the case on its merits, on the record.

[22] I conclude that the General Division did not apply the proper test in determining that the appeal had to be summarily dismissed. This is an error of law.

[23] I am therefore justified to intervene.

Remedy

[24]  Since the General Division did not apply the proper test, I am allowing the appeal. It is appropriate to refer the matter back to the General Division for reconsideration.

Conclusion

[25] The appeal is allowed. The matter goes back to the General Division for reconsideration.