Employment Insurance (EI)

Decision

[1] Leave to appeal is refused. This means the appeal will not proceed.

Overview

[2] The Applicant (Claimant) was put on an unpaid leave of absence because he refused to follow the COVID-19 vaccination policy (Policy) of the employer’s client. The client required that the Claimant work at a new worksite. It was a requirement of the new worksite that the Claimant be vaccinated. He was not granted an exemption. The Claimant then applied for Employment Insurance (EI) regular benefits.

[3] The Respondent (Commission) determined that the Claimant was suspended from his job because of misconduct, so it was not able to pay him benefits. After an unsuccessful reconsideration, the Claimant appealed to the General Division.

[4] The General Division found that the Claimant was suspended from his job when he failed to obtain a vaccine passport, or to have an approved exemption, as required by his employer and its client. He was not granted an exemption. It found that the Claimant knew that the employer was likely to suspend him in these circumstances. The General Division concluded that the Claimant was suspended from his job because of misconduct.

[5] The Claimant seeks leave to appeal of the General Division’s decision to the Appeal Division. He submits that he refused to receive the COVID-19 vaccine to protect his body from an experimental vaccine that has been proven to be a gene therapy causing serious injuries, including death. Not taking the vaccine was therefore a matter of life and death. The Claimant files more documents to support his position that the COVID-19 vaccine was unnecessary, unsafe, and violated his rights under Canadian and international law.

[6] I must decide whether the Claimant has raised some reviewable error of the General Division upon which the appeal might succeed.

[7] I refuse leave to appeal because the Claimant’s appeal has no reasonable chance of success.

Issue

[8] Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed?

Analysis

[9] Section 58(1) of the Department of Employment and Social Development Act specifies the only grounds of appeal of a General Division decision. These reviewable errors are that:

1. 1. The General Division hearing process was not fair in some way.
2. 2. The General Division did not decide an issue that it should have decided. Or, it decided something it did not have the power to decide.
3. 3. The General Division based its decision on an important error of fact.
4. 4. The General Division made an error of law when making its decision.

[10] An application for leave to appeal is a preliminary step to a hearing on the merits. It is an initial hurdle for the Claimant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the leave to appeal stage, the Claimant does not have to prove his case but must establish that the appeal has a reasonable chance of success based on a reviewable error. In other words, that there is arguably some reviewable error upon which the appeal might succeed.

[11] Therefore, before I can grant leave to appeal, I need to be satisfied that the reasons for appeal fall within any of the above-mentioned grounds of appeal and that at least one of the reasons has a reasonable chance of success.

Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed?

[12] The Claimant submits that he refused to receive the COVID-19 vaccine to protect his body from an experimental vaccine that has been proven to be a gene therapy causing serious injuries, including death. Not taking the vaccine was therefore a matter of life and death. The Claimant files more documents to support his position established before the General Division that the COVID-19 vaccine was unnecessary, unsafe, and violated his rights under Canadian and international law.

[13] The General Division had to decide whether the Claimant was suspended because of misconduct.

[14] The notion of misconduct does not imply that it is necessary that the breach of conduct be the result of wrongful intent; it is sufficient that the misconduct be conscious, deliberate, or intentional. In other words, in order to constitute misconduct, the act complained of must have been wilful or at least of such a careless or negligent nature that one could say the employee wilfully disregarded the effects their actions would have on their performance.

[15] The General Division’s role is not to judge the severity of the employer’s penalty or to determine whether the employer was guilty of misconduct by suspending the Claimant in such a way that his suspension was unjustified, but rather of deciding whether the Claimant was guilty of misconduct and whether this misconduct led to his suspension.^{Footnote 1}

[16] Based on the evidence, the General Division determined that the Claimant was suspended because he refused to follow the Policy. He had been informed of the Policy and was given time to comply. He was not granted an exemption. The Claimant refused intentionally; this refusal was wilful. This was the direct cause of his suspension. The General Division found that the Claimant knew that his refusal to comply with the Policy could lead to his suspension. The General Division concluded from the preponderant evidence that the Claimant’s behavior constituted misconduct.

[17] It is well-established that a deliberate violation of the employer’s policy is considered misconduct within the meaning of the Employment Insurance Act (EI Act).^{Footnote 2}

[18] It is not really in dispute that an employer has an obligation to take all reasonable precautions to protect the health and safety of its employees in their workplace. In the present case, the employer and its client followed the recommendations of public health officials to implement the Policy to protect the health of all employees during the pandemic. The Policy was in effect when the Claimant was suspended.

[19] This Tribunal does not have the jurisdiction to decide whether the employer’s health and safety measures regarding COVID-19 were efficient or reasonable.

[20] The question of whether the employer should have accommodated the Claimant by allowing him to work from home or whether the employer’s policy violated the Claimant’s human and constitutional rights is a matter for another forum. This Tribunal is not the appropriate forum through which the Claimant can obtain the remedy that he is seeking.^{Footnote 3}

[21] In the recent Paradis case, the Claimant was refused EI benefits because of misconduct. He argued that the employer’s policy violated his rights under the Alberta Human Rights Act. The Federal Court found it was a matter for another forum.

[22] The Federal Court also stated that there are available remedies for a claimant to sanction the behaviour of an employer other than transferring the costs of that behaviour to the Employment Insurance Program.

[23] In the Mishibinijima case, the Federal Court of Appeal stated that the employer’s duty to accommodate is irrelevant in deciding EI misconduct cases.

[24] The preponderant evidence before the General Division shows that the Claimant made a personal and deliberate choice not to follow the Policy and this resulted in him being suspended from work.

[25] I see no reviewable error made by the General Division when it decided the issue of misconduct solely within the parameters set out by the Federal Court of Appeal, which has defined misconduct under the EI Act.^{Footnote 4}

[26] I am fully aware that the Claimant may seek relief before another forum, if a violation is established.^{Footnote 5} This does not change the fact that under the EI Act, the Commission has proven on a balance of probabilities that the Claimant was suspended because of misconduct.

[27] In his application for leave to appeal, the Claimant has not identified any reviewable errors such as jurisdiction or any failure by the General Division to observe a principle of natural justice. He has not identified errors in law nor identified any erroneous findings of fact, which the General Division may have made in a perverse or capricious manner or without regard for the material before it, in coming to its decision.

[28] After reviewing the docket of appeal, the decision of the General Division and considering the arguments of the Claimant in support of his request for leave to appeal, I find that the appeal has no reasonable chance of success.

Conclusion

[29] Leave to appeal is refused. This means the appeal will not proceed.