Citation: JW v Canada Employment Insurance Commission, 2023 SST 386
Social Security Tribunal of Canada
Appeal Division
Extension of Time and Leave to Appeal Decision
Applicant: | J. W. |
Respondent: | Canada Employment Insurance Commission |
Decision under appeal: | General Division decision dated November 25, 2022 (GE-22-1991) |
Tribunal member: | Pierre Lafontaine |
Decision date: | April 4, 2023 |
File number: | AD-23-94 |
On this page
Decision
[1] The application is late. I am extending the time to file the application for leave to appeal. However, leave to appeal is refused. This means the appeal will not proceed.
Overview
[2] The Applicant (Claimant) lost her job because she did not comply with the employer’s COVID-19 vaccination policy (Policy). She was not granted an exemption. The Claimant then applied for Employment Insurance (EI) regular benefits.
[3] The Respondent (Commission) determined that the Claimant lost her job because of misconduct, so it was not able to pay her benefits. After an unsuccessful reconsideration, the Claimant appealed to the General Division.
[4] The General Division found that the Claimant lost her job following her refusal to follow the employer’s Policy. She was not granted an exemption. It found that the Claimant knew that the employer was likely to dismiss her in these circumstances. The General Division concluded that the Claimant was dismissed from her job because of misconduct.
[5] The Claimant seeks leave to appeal of the General Division’s decision to the Appeal Division. The Claimant submits that the General Division made an important error of fact.
[6] I must decide whether the Claimant’s application to the Appeal Division is late. If it is, I must decide whether I extend the time to file the application. If I do extend the time, I must decide whether the Claimant has raised some reviewable error of the General Division upon which the appeal might succeed.
[7] The application is late. I am extending the time to file the application for leave to appeal. However, I refuse leave to appeal because the Claimant’s appeal has no reasonable chance of success.
Issues
[8] The issues in this appeal are:
- a) Was the application to the Appeal Division late?
- b) Should I extend the time for filing the application?
- c) Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed?
Analysis
The application was late
[9] The delay to file an application for leave to appeal is 30 days after the day on which the decision and reasons are communicated in writing to the Claimant.
[10] The General Division rendered a decision on November 25, 2022. It was communicated to the Claimant on November 28, 2022. The Claimant filed an application for leave to appeal on January 22, 2023. The Application is late.
I am extending the time for filing the application
[11] When deciding whether to grant an extension of time, I must consider whether the Claimant has a reasonable explanation for why the application is late.
[12] The delay herein is 25 days. The Claimant explains that she went to a Service Canada center within the 30 days to inquire on how to proceed to appeal the General Division decision. She was told they would contact her. She called several times before she got a call back informing her to proceed through the Tribunal, which she did.
[13] I am satisfied that an extension of time to file an application for leave to appeal is warranted in the case at bar. The Claimant has offered a reasonable explanation for the delay.
I am not giving the Claimant permission to appeal
[14] 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. The General Division hearing process was not fair in some way.
- 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. The General Division based its decision on an important error of fact.
- 4. The General Division made an error of law when making its decision.
[15] 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 her 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.
[16] 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?
[17] The Claimant submits that the General Division made an important error of fact.
[18] I sent a letter to the Claimant requesting that she explain in detail her grounds of appeal. I did not receive a reply to my request within the allowed time.
[19] The General Division had to decide whether the Claimant lost her job because of misconduct.Footnote 1
[20] 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.
[21] 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 dismissing the Claimant in such a way that her dismissal was unjustified, but rather of deciding whether the Claimant was guilty of misconduct and whether this misconduct led to her dismissal. Footnote 2
[22] Based on the evidence, the General Division determined that the Claimant was dismissed because she refused to follow the Policy. She had been informed of the employer’s Policy and was given time to comply. She was not granted an exemption. The Claimant refused intentionally; this refusal was wilful. This was the direct cause of her dismissal.
[23] The General Division found that the Claimant knew that her refusal to comply with the Policy could lead to her dismissal.
[24] The General Division concluded from the preponderant evidence that the Claimant’s behavior constituted misconduct.
[25] It is well-established that a deliberate violation of the employer’s policy is considered misconduct within the meaning of the EI Act.Footnote 3 It is also considered misconduct within the meaning of the EI Act not to observe a policy duly approved by a government or an industry.Footnote 4
[26] 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 followed the British Columbia’s Provincial Health Office recommendations to implement its Policy to protect the health of all employees during the pandemic. The Policy was in effect when the Claimant was dismissed.Footnote 5
[27] It is not for this Tribunal to decide whether the employer’s health and safety measures regarding COVID-19 were efficient or reasonable.
[28] The question of whether the employer failed to accommodate the Claimant, or whether the Policy violated her 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 she is seeking.Footnote 6
[29] The Federal Court has rendered a recent decision in Cecchetto regarding misconduct and a claimant’s refusal to follow the employer’s COVID-19 vaccination policy. The claimant submitted that refusing to abide by a vaccine policy unilaterally imposed by an employer is not misconduct. He put forward that it was not proven that the vaccine was safe and efficient. The claimant felt discriminated against because of his personal medical choice. The claimant submitted that he has the right to control his own bodily integrity and that his rights were violated under Canadian and international law.Footnote 7
[30] The Federal Court confirmed the Appeal Division’s decision that, by law, this Tribunal is not permitted to address these questions. The Court agreed that by making a personal and deliberate choice not to follow the employer’s vaccination policy, the claimant had breached his duties owed to his employer and had lost his job because of misconduct under the EI Act.Footnote 8 The Court stated that there exist other ways in which the claimant’s claims can properly advance under the legal system.
[31] In the previous Paradis case, the claimant was refused EI benefits because of misconduct. He argued that there was no misconduct because the employer’s policy violated his rights under the Alberta Human Rights Act. The Federal Court found it was a matter for another forum.
[32] The Federal Court 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.
[33] In the Mishibinijima case, the Federal Court of Appeal stated that the employer’s duty to accommodate is irrelevant in deciding EI misconduct cases.
[34] As stated previously, the General Division’s role is not to determine whether the employer was guilty of misconduct by dismissing the Claimant in such a way that her dismissal was unjustified, but rather of deciding whether the Claimant was guilty of misconduct and whether this misconduct led to her dismissal.
[35] The preponderant evidence before the General Division shows that the Claimant made a personal and deliberate choice not to follow the employer’s Policy in response to the exceptional circumstances created by the pandemic and this resulted in her being dismissed from work.
[36] 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 9
[37] I am fully aware that the Claimant may seek relief before another forum if a violation is established. This does not change the fact that under the EI Act, the Commission has proven on a balance of probabilities that the Claimant was dismissed because of misconduct.
[38] After reviewing the docket of appeal, the decision of the General Division and considering the arguments of the Claimant in support of her request for leave to appeal, I find that the appeal has no reasonable chance of success.
Conclusion
[39] Leave to appeal is refused. This means the appeal will not proceed.