Employment Insurance (EI)

Decision

[1] Leave (permission) to appeal is refused. The appeal will not proceed.

Overview

[2] The Applicant, M. T. (Claimant), was suspended from his job. His employer introduced a COVID-19 vaccination policy. The Claimant did not confirm that he had received the vaccine by the deadline in the policy and his employer placed him on an unpaid leave.

[3] The Claimant applied for employment insurance (EI) regular benefits. The Respondent, the Canada Employment Insurance Commission (Commission), initially decided that the Claimant took a voluntary leave of absence without just cause.

[4] The Claimant requested a reconsideration and the Commission changed the reason for denying benefits. It decided that the Claimant was suspended for misconduct and was disentitled from receiving benefits.

[5] The Claimant appealed the reconsideration decision to the Tribunal’s General Division. The General Division dismissed the appeal. It found that the Claimant was suspended from his job because he did not comply with the employer’s vaccination policy. It decided that this reason is considered misconduct and he is disentitled from receiving EI benefits.

[6] The Claimant is now asking to appeal the General Division decision to the Tribunal’s Appeal Division. However, he needs permission for his appeal to move forward.

[7] I have to decide whether there is some reviewable error of the General Division on which the appeal might succeed. I am refusing leave to appeal because the Claimant’s appeal has no reasonable chance of success.

Issues

[8] The issues are:

1. a) Is there an arguable case that the General Division made an error of law by not considering the merits of the employer’s policy?
2. b) Does the Claimant raise any other reviewable error of the General Division upon which the appeal might succeed?

I am not giving the Claimant permission to appeal

[9] The legal test that the Claimant needs to meet on an application for leave to appeal is a low one: Is there any arguable ground on which the appeal might succeed?^{Footnote 1}

[10] To decide this question, I focused on whether the General Division could have made one or more of the relevant errors (or grounds of appeal) listed in the Department of Employment and Social Development Act (DESD Act).^{Footnote 2}

[11] An appeal is not a rehearing of the original claim. Instead, I must decide whether the General Division:

1. a) failed to provide a fair process;
2. b) failed to decide an issue that it should have, or decided an issue that it should not have;
3. c) based its decision on an important factual error;^{Footnote 3} or
4. d) made an error in law.^{Footnote 4}

[12] Before the Claimant can move on to the next stage of the appeal, I have to be satisfied that there is a reasonable chance of success based on one or more of these grounds of appeal. A reasonable chance of success means that the Claimant could argue his case and possibly win. I should also be aware of other possible grounds of appeal not precisely identified by the Claimant.^{Footnote 5}

No arguable case that the General Division made an error of law

[13] The Claimant argues that the General Division made an error of law. He says that the General Division should have considered whether the employer’s policy was scientifically valid, ethical, legal and moral. He argues that he took a stand against the policy and should have had EI benefits while he did so.^{Footnote 6}

[14] The Claimant argues that he should not have to undergo an experimental medical procedure or risk losing his income. He says that the government should protect his Charter right to security of the person.^{Footnote 7}

[15] I find that the Claimant’s arguments do not have a reasonable chance of success. The General Division accurately set out the legal test for misconduct as established by case law from the Federal Court and the Federal Court of Appeal.^{Footnote 8}

[16] The General Division then applied the legal test, as set out in the case law, to the Claimant’s circumstances. It found that the Commission had proven that the Claimant was suspended due to misconduct for the following reasons:

• The employer had a policy requiring employees to provide their vaccination status by a certain date and the Claimant was aware of this policy.^{Footnote 9}
• The Claimant made an intentional decision not to comply with the policy.^{Footnote 10}
• The Claimant knew that he could be suspended for failing to comply.^{Footnote 11}

[17] The General Division acknowledged and considered the Claimant’s arguments that the vaccine did not prevent transmission of Covid-19 and he could have continued to work safely.^{Footnote 12}

[18] The General Division found that it does not have the jurisdiction to make decisions about the efficacy of the vaccine. It also does not have the authority to make decisions about the conduct of the employer and whether the suspension was reasonable or justified. The General Division cited a decision from the Federal Court of Appeal in support.^{Footnote 13}

[19] The Claimant also argued that the vaccination policy contravened his collective agreement and was illegal. He said that refusing to follow the policy was not misconduct.^{Footnote 14}

[20] The General Division found that it can only decide whether there was misconduct according to the EI Act and can’t decide if the employer breached a collective agreement. It pointed to case law that makes this clear.^{Footnote 15}

[21] There is no arguable case that the General Division made an error of law. The General Division properly cited and applied the law when making its decision.

[22] As discussed above, the General Division explained its reasons for not deciding about the employer’s policy or the efficacy of the vaccine.^{Footnote 16} The General Division supported this decision with reference to case law.

[23] The Federal Court of Appeal has said that the question of whether an employer breached a collective agreement is not relevant to the question of misconduct under the EI Act. This is because it is not the employer’s conduct which is in issue and these issues can be dealt with in other forums.^{Footnote 17}

[24] A recent decision from the Federal Court, Cecchetto v Canada (Attorney General), also confirmed that the Tribunal cannot consider the conduct of the employer or the validity of the vaccination policy.^{Footnote 18} In that case, the Court agreed that an employee who made a deliberate decision not to follow’s his employer’s vaccination policy had lost his job due to misconduct.

[25] The claimant in Cecchetto also made arguments about his bodily integrity, consent to medical testing and the safety and efficacy of the vaccine. The Court confirmed that these are not issues that the Tribunal is permitted, by law, to address.^{Footnote 19}

[26] Aside from the Claimant’s arguments, I have also considered the other grounds of appeal. The Claimant has not pointed to any procedural unfairness on the part of the General Division, and I see no evidence of procedural unfairness. There is no arguable case that the General Division based its decision on an important mistake about the facts or made an error of jurisdiction.

[27] The Claimant has not identified any errors of the General Division upon which the appeal might succeed. As a result, I am refusing leave to appeal.

Conclusion

[28] Permission to appeal is refused. This means that the appeal will not proceed.