Employment Insurance (EI)

Decision

[1] C. L. is the Claimant in this case. For the reasons below, I’m dismissing her appeal. This means that she’s disentitled from receiving Employment Insurance (EI) benefits from October 17, 2021, to January 30, 2022. She’s also disqualified from receiving EI benefits from January 31, 2022.

Overview

[2] The Claimant worked as a research associate at a hospital. As part of its response to the COVID-19 pandemic, the hospital made efforts to protect the safety of its patients, family, and staff. The hospital said that it was going “above and beyond” to protect the vulnerable patients it serves.^{Footnote 1} As a result, the hospital adopted a COVID-19 vaccination policy for all its employees, staff, volunteers, students, observers, and contractors. This included the Claimant.

[3] However, the Claimant refused to be vaccinated because of safety concerns: she has a history of allergic reactions to medications (and many other things). She also questioned the fairness, reasonableness, and need for a one-size-fits-all vaccination policy. She noted other effective (and possibly better) ways of protecting people in the hospital community.

[4] Regardless of the Claimant’s arguments, the hospital said it was putting her on a leave of absence without pay. The Claimant says that Ontario law deemed her to be on an unpaid infectious disease emergency leave. After more than three months on leave without pay, the Claimant says she was left with no choice but to quit her job.

[5] While the Claimant was off work, she applied for Employment Insurance (EI) regular benefits. However, the Canada Employment Insurance Commission (Commission) refused to pay her benefits saying that she had been suspended for misconduct and then voluntarily quit her job without just cause.

[6] The Claimant appealed the Commission’s decision to the Tribunal’s General Division, but it dismissed her appeal. She’s now appealing the General Division decision to the Tribunal’s Appeal Division.

[7] The Claimant argues that the General Division acted unfairly, made errors of law and jurisdiction, and based its decision on important mistakes about the facts of her case.

[8] I’ve considered all the Claimant’s arguments in depth. I have sympathy for her situation. And while I agree that the General Division made some errors, I’ve reached the same conclusion. As a result, I’m dismissing the Claimant’s appeal.

Issues

[9] The issues in this appeal are:

1. a) Did the General Division make an error of law or base its decision on an important mistake about the facts of the case when it concluded that the Claimant was “suspended from [her] employment because of [her] misconduct”?^{Footnote 2}
2. b) Did the General Division make an error of law or base its decision on an important mistake about the facts of the case when it concluded that the Claimant voluntarily left her job without “just cause”?^{Footnote 3}
3. c) Did the General Division provide the Claimant with a fair process?
4. d) How should I fix the General Division’s errors in this case?
5. e) Can the Claimant receive EI benefits?

Analysis

[10] I can intervene in this case if the General Division made at least one of the errors described above.^{Footnote 4}

[11] However, it’s worth remembering that I have to give the General Division some leeway when reviewing its findings of fact. In other words, I can’t intervene just because the General Division made a mistake about a minor detail in the case. Instead, the law only allows me to intervene if the General Division “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.”^{Footnote 5}

[12] So, the following questions arise when reviewing the findings (facts) that the General Division relied on to reach its decision:^{Footnote 6}

• Does the evidence squarely contradict the General Division’s findings?
• Is there no evidence that could rationally support the General Division’s findings?
• Did the General Division overlook critical evidence that contradicts its findings?

[13] While the Claimant alleges that the General Division made numerous errors of fact, most of her allegations don’t meet the test needed for me to intervene in her case.

[14] I’ll now consider the Claimant’s arguments in more detail.

The General Division didn’t make any errors when it concluded that the Claimant was suspended for misconduct

[15] The General Division concluded that the Claimant wasn’t entitled to EI benefits from October 17, 2021, to January 30, 2022, because she was suspended for misconduct.^{Footnote 7} The General Division made the following key findings:^{Footnote 8}

• The hospital adopted a COVID-19 vaccination policy to help protect the health and safety of its workers and patients (among others);
• The Claimant was aware of the policy and the consequences of not complying with the policy;
• The Claimant was given time to get vaccinated or to ask for an exemption from the vaccine requirement for medical reasons;
• The Claimant did not provide a note from a medical professional with her request for a medical exemption, and the hospital refused her request;^{Footnote 9}
• The Claimant deliberately chose not to get vaccinated, and knew the consequences of her choice; and
• While the hospital says it put the Claimant on an unpaid leave of absence, the legal effect was the same as if she had been suspended for misconduct.

It doesn’t matter how the Claimant’s leave is characterized for other purposes

[16] I understand the Claimant’s concern about the General Division’s conclusion that she was suspended for misconduct. These words suggest that she’s done something wrong or bad, but the hospital said she could choose whether to get vaccinated. Plus, they’re not the words her employer used. Rather, the hospital says that it put the Claimant on an unpaid leave of absence.^{Footnote 10}

[17] The Claimant now says that she wasn’t put on an unpaid leave of absence either. Instead, she argues that Ontario law deemed her to be on “job-protected unpaid infectious disease emergency leave.”^{Footnote 11} This argument wasn’t presented to the General Division and is largely based on new evidence that the Appeal Division can’t accept.^{Footnote 12}

[18] Regardless, the Tribunal has to apply the Employment Insurance Act (EI Act) and doesn’t have to adopt the specific words used by the Claimant’s employer, on her record of employment, or by provincial laws.^{Footnote 13}

[19] “Suspension” and “misconduct” aren’t defined in the EI Act.^{Footnote 14} And while the Commission’s guidance documents, like the Digest of Benefit Entitlement Principles, can help to guide the Commission’s employees, it’s not the Tribunal’s job to police how the Digest is applied.

[20] Rather, the Tribunal has to interpret and apply the EI Act in a way that aligns with its purposes. In particular, the EI scheme pays benefits only to people who involuntarily find themselves without work. The EI Act does not pay benefits to people who have provoked or been responsible for their unemployment.^{Footnote 15}

[21] So, decisions interpreting the EI Act have said that an employee is suspended for misconduct if they deliberately violate one of their employer’s policies knowing that their actions could result in suspension, dismissal, or otherwise leave them without income.^{Footnote 16} Blameworthiness is not a part of this legal test.^{Footnote 17}

[22] As a result, the General Division didn’t make an error when it found that suspended for misconduct was broad enough to include the Claimant’s situation. It was consistent with the context and purpose of the EI Act to conclude that the Claimant was suspended since she chose not to get vaccinated knowing that her employer’s policy required that it put her on unpaid leave. In other words, the Claimant’s choice caused her to lose her income and prompted her need for EI benefits.

The Tribunal applies a narrow legal test in misconduct cases

[23] The Claimant is making the following main arguments:

• The hospital was not entitled to unilaterally change her conditions of employment by imposing its COVID-19 vaccination policy;
• Based on past allergic reactions, the Claimant had legitimate concerns about her safety if she took the COVID-19 vaccine; and
• The Claimant did not work in the main hospital building and had no contact with patients or front-line hospital workers. As a result, the hospital’s “one-size-fits-all” policy was an overreach and there were other — even better — ways of protecting the hospital community in her situation.

[24] In her arguments, the Claimant also relied on “Directive #6,” a direction to hospitals and other employers about COVID-19 vaccination.^{Footnote 18}

[25] I’ve considered all the Claimant’s arguments, but I cannot accept them. They go beyond what the Tribunal needs to decide in her case.

[26] The Tribunal applies a narrow legal test in misconduct cases generally, and vaccine mandate cases specifically.^{Footnote 19} This means that the General Division couldn’t assess the validity of the Claimant’s medical concerns. Nor could it assess the effectiveness of her employer’s COVID-19 policy.

[27] Instead, the General Division appropriately focused on why the Claimant was on an unpaid leave and whether that reason amounted to misconduct under the EI Act.

[28] The General Division found that the Claimant’s choice led to her being on an unpaid leave. Specifically, the Claimant neither got vaccinated against COVID-19, nor did she get an exemption from the vaccine requirement. In the circumstances, the Claimant understood that she would find herself without income.

[29] The General Division also found that a deliberate act that results in a person’s suspension under an employer policy amounts to misconduct under the EI Act. The General Division’s conclusion is well supported by court decisions.^{Footnote 20}

[30] In addition, Directive #6 contradicts the Claimant’s argument about the hospital’s inability to unilaterally change her terms of employment: Directive #6 required that the hospital implement a policy about COVID-19 vaccination.

[31] And while the Claimant offered to continue doing “regular antigen point of care testing for COVID-19,” as described in Directive #6, the General Division was entitled to focus on the hospital’s policy, as communicated to its employees. Besides, the Directive did not require that the testing option be made available to everyone. Instead, it was only for people who had been validly exempted from getting vaccinated.

[32] Finally, the Claimant has other avenues that she can pursue if she wants to challenge the legality of her employer’s policy or the way that it was implemented.^{Footnote 21} It was not an error for the General Division to avoid deciding issues that it didn’t have the power to decide.

The General Division made errors of fact and of law when it concluded that the Claimant voluntarily left her job without just cause

[33] The General Division concluded that the Claimant was disqualified from getting EI benefits starting January 31, 2022, because she voluntarily left her job without just cause.^{Footnote 22} The General Division made the following key findings:^{Footnote 23}

• The Claimant quit her job on January 31, 2022;
• The Claimant did not have a significant change in her work duties;
• The Claimant’s employer did not act contrary to the law;
• The Claimant’s employer did not put undue pressure on her to quit; and
• The Claimant had reasonable alternatives to quitting when she did. For example, she could have looked for other jobs, inside and outside of her regular field of work.

[34] I’ve considered all the Claimant’s arguments and find that the General Division made three of the errors that the Claimant is alleging:

• it made an error of fact when it concluded that the Claimant agreed she voluntarily left her job;^{Footnote 24}
• it made another error of fact when it found that the Claimant hadn’t considered searching for jobs outside her field;^{Footnote 25} and
• it made an error of law by overlooking section 29(c)(vii) of the EI Act.

The General Division made errors of fact and of law

[35] The General Division made an error of fact when it referred, in paragraph 47 of its decision, to the Claimant’s agreement that she quit her job voluntarily. Since the General Division considered this fact to be uncontested, it moved quickly to the next part of its decision, with little analysis of this important issue.

[36] While the Claimant might have initiated the separation from her job, she has always denied that it was voluntary.^{Footnote 26} On the contrary, the evidence showed that the Claimant wrote several letters to her employer and made efforts to keep working.^{Footnote 27}

[37] Rather, the Claimant argued that by putting her on an indefinite unpaid leave of absence, her employer put her in an impossible situation that resulted in financial and emotional strain: she had to resign as a matter of survival.

[38] The General Division should have considered these arguments in its decision.

[39] The General Division also made an error of fact when it concluded, in paragraph 74 of its decision, that the Claimant should have considered looking for work outside her field of specialization.

[40] The evidence contradicts this conclusion. Rather, the Claimant explained during the General Division hearing that she did consider applying for “simple” jobs in places that didn’t have a vaccine mandate. However, she didn’t apply for any of these jobs because they didn’t seem like a good fit, either because of her age or physical abilities.^{Footnote 28}

[41] The General Division should have considered evidence that clearly contradicted its findings of fact about whether the Claimant voluntarily left her job and about the job search efforts she made while on leave.

[42] The General Division also made an error of law by overlooking the Claimant’s arguments under section 29(c)(vii) of the EI Act.

[43] As part of its decision, the General Division considered whether the Claimant had just cause for leaving her job. Section 29(c) of the EI Act provides a list of factors that the Tribunal should consider as part of this assessment (if applicable).

[44] Here, the General Division considered the factors listed under sections 29(c)(ix), (xi), and (xiii) of the EI Act. However, the Claimant says that she never raised section 29(c)(ix) of the EI Act (significant changes in work duties). Instead, she argues that she raised section 29(c)(vii) (significant modification of terms and conditions respecting wages or salary), but the General Division never considered it.^{Footnote 29}

[45] I agree that the Claimant raised section 29(c)(vii) of the EI Act in front of the General Division and that it should have considered it.^{Footnote 30} The General Division considered other factors listed under section 29(c), but it overlooked the question of whether the Claimant had experienced a significant change to the terms and conditions of her work regarding wages or salary. This was an error of law.

The General Division provided the Claimant with a fair process

[46] The Claimant argues that the General Division failed to provide her with a fair process. More specifically, she relies on these main arguments:

• the General Division member didn’t review video clips of town hall meetings hosted by the hospital; and
• the General Division decision shows that the member was biased.

[47] I reject these arguments.

[48] First, the Claimant summarized the contents of the video clips.^{Footnote 31} Nobody, including the General Division member, seems to have disputed her summaries. There was no controversy about what was said at those meetings.

[49] However, the General Division doesn’t need to mention every piece of evidence.^{Footnote 32} Indeed, the narrow test that the Tribunal was applying frankly means that the video clips were of little relevance to the issues the General Division needed to decide.

[50] And if the Claimant wanted the General Division to consider these video clips, she needed to ensure that they were properly added to the Tribunal’s record.

[51] The Claimant now says that the video clips are available in a virtual drive on the Internet. This too is no substitute for adding documents to the Tribunal’s record. For example, documents in virtual drives might later be modified or deleted. Instead, the Tribunal has to maintain the integrity of its record so that everyone can clearly see the evidence that it used to reach its decision. This is also critical when a Tribunal decision is being reviewed by the courts.

[52] Second, the Claimant hasn’t met the high threshold needed to prove that the General Division member was biased.

[53] Allegations of bias are serious and members are presumed to be impartial.^{Footnote 33} This means that the legal test for proving bias is high. The Claimant needs evidence to prove bias; suspicion isn’t enough.^{Footnote 34}

[54] Here, the Claimant disagrees with the outcome of her case. She argues that the General Division is full of errors that were made deliberately to justify the member’s preconceived conclusions.

[55] I disagree. The General Division decision and three-hour-long hearing struck me as balanced and fair. Although the General Division rejected the Claimant’s arguments and might have overlooked some of the nuances about the Claimant’s case, I’m not convinced that an informed person viewing the matter realistically and practically would conclude that the General Division member decided the case unfairly, with a closed mind, or in pursuit of an alternative agenda.

I will give the decision the General Division should have given

[56] The parties agree that I should give the decision the General Division should have given.^{Footnote 35} The Claimant acknowledges that the I am able to make a decision based on all the information in the General Division file.

[57] I agree that it’s appropriate for me to give the decision the General Division should have given. I’ve found that the General Division provided a fair process. Plus, the essential facts of the case are not especially controversial.

[58] I’ve not found any errors in the General Division’s conclusion that, for the narrow purposes of the EI Act, the Claimant was suspended from her job because of misconduct. As a result, she was disentitled from receiving benefits between October 17, 2021, and January 30, 2022.

[59] However, I found errors in the second part of the General Division decision. So, I will now turn my focus to the following questions:

• Did the Claimant voluntarily quit her job?
• Did the Claimant experience a significant change to the terms and conditions of her work regarding wages or salary?
• Did the Claimant have reasonable alternatives to quitting when she did?

The Claimant is disqualified from receiving EI benefits

[60] As described above, section 30 of the EI Act disqualifies claimants from receiving benefits if they voluntarily leave their job without just cause.

[61] The Claimant argues that she didn’t quit her job voluntarily. Instead, she says that her employer forced her to quit by adopting an illegal and unreasonable policy and by putting her on leave without pay for an indefinite period.

[62] While there are parallels between the legal concepts of constructive dismissal and just cause, the two are not the same. And the Claimant has to pursue her constructive dismissal clams elsewhere; they’re not relevant to whether she should be paid EI benefits.^{Footnote 36}

[63] In cases of this type, the Tribunal applies a two-part analysis. First, the Commission has to prove that the Claimant left her job voluntarily. If so, the Claimant then has to show that she had just cause for leaving her job.

The Claimant left her job voluntarily

[64] This assessment focuses on the actions of the Claimant. The relevant question is simply this: Did the Claimant have a choice to stay or to leave her job?^{Footnote 37}

[65] Although I understand the difficult situation that she was in, the Claimant initiated the separation from her employment. On January 16, 2022, the Claimant wrote to her employer and said: “This letter is to confirm with you that my last day of being an employee of [the hospital] will be January 31, 2022.”^{Footnote 38}

[66] In fact, the hospital confirmed that the Claimant remained an employee while on an unpaid leave of absence.^{Footnote 39}

[67] The Claimant could have remained employed by the hospital. This means that the Commission has met its obligation of proving the first part of the legal test.

[68] Two other points are worth noting in support of this conclusion:

• The Appeal Division has rejected many of the Claimant’s arguments in another case that was similar to this one;^{Footnote 40} and
• According to the Claimant’s own arguments, she was on an unpaid infectious disease emergency leave and Ontario’s Employment Standards Act prevented the hospital from ending her employment.^{Footnote 41}

The Claimant did not have a significant change to the terms and conditions of her work regarding wages or salary

[69] The Claimant now has to show that she had just cause for leaving her job. But proving just cause can be difficult. The Claimant has to show that, in all the circumstances of her case, she had no reasonable alternative but to quit.^{Footnote 42}

[70] As part of its assessment, the Tribunal has to consider all the relevant circumstances, including those listed under section 29(c) of the EI Act.

[71] The General Division considered the circumstances listed under sections 29(c)(ix), (xi), and (xiii) of the EI Act. It concluded that none of them applied in the Claimant’s case, and I’ve not found any errors in those parts of the General Division decision.

[72] However, I decided that the General Division should have also considered the circumstances under section 29(c)(vii) of the EI Act. In other words, did the Claimant have a significant change to the terms and conditions of her work regarding wages or salary?

[73] For the reasons below, I’ve answered no to that question.

[74] It’s true that the Claimant wasn’t paid for many months. However, that’s not because the hospital reduced her salary to zero. The Claimant wasn’t paid because the hospital’s policy said she had to be put on unpaid leave. In other words, she wasn’t working.

[75] The Claimant was never guaranteed work or a salary in all circumstances. For example, she could be suspended for disciplinary reasons or for breaching the hospital’s health and safety policies.

[76] I understand the Claimant’s arguments about how the hospital’s policy went too far and was too rigid. But as I’ve already said, it’s not for me to second-guess the hospital’s response to a global pandemic.

[77] In the circumstances, the Claimant did not have a significant change to the terms and conditions of her work regarding wages or salary. She wasn’t being paid less for the work that she did. Instead, the employer ordered her not to work to protect the health and safety of its community. Section 29(c)(vii) of the EI Act doesn’t apply in this situation.

The Claimant had a reasonable alternative to quitting when she did

[78] Although the Claimant’s circumstances might not fall within those listed under section 29(c) of the EI Act, I still have to ask the following question: Having regard to all the circumstances, was quitting the Claimant’s only reasonable course of action.^{Footnote 43} The test is not whether it was reasonable for the Claimant to quit, whether she had a good reason to quit, or whether she exhausted every possible alternative before quitting.^{Footnote 44}

[79] I recognize the difficult situation in which the Claimant found herself. Nevertheless, she had the reasonable alternative of obtaining a note from a medical professional to support her request for a medical exemption from the hospital’s vaccination policy.

[80] Both Directive #6 and the hospital’s COVID-19 vaccination policy make clear that requests for a medical exemption needed to be supported by a note from a medical professional describing a medical reason for not being vaccinated.^{Footnote 45} This makes sense. Otherwise, people could invent medical conditions to justify their request for an exemption.

[81] But the Claimant never provided the hospital with a note from a medical professional to support her application for a medical exemption.

[82] The Claimant argues that she was never told why her medical exemption request was denied. She also argues that the grounds for an exemption listed on the hospital’s medical exemption request form were so narrow that it was impossible for her to qualify.

[83] While the Claimant’s circumstances might have made it difficult for someone to sign the hospital’s medical exemption form, the Claimant must have realized that her request wouldn’t be accepted unless it was supported by a note from a medical professional. Plus, the seriousness of her allergies suggest that it should have been possible for a medical professional to do tests or review records and provide some reason in support of her exemption request.

[84] According to the Claimant, the hospital would only give medical exemptions to people who had had a severe allergic reaction to a previous dose of an mRNA vaccine or to one of its components. She said it was impossible for her to meet these requirements because mRNA vaccines were new and because she had not had any other vaccines in Canada because of her allergic reactions to so many other products.

[85] However, the hospital’s letters to the Claimant showed an openness to considering other medical reasons for an exemption if they were supported by a medical professional. Indeed, the requirements in Directive #6 were not nearly so prescriptive. It simply required “a documented medical reason for not being fully vaccinated against COVID-19.”^{Footnote 46}

[86] Some examples of the hospital’s willingness to consider additional reasons for a medical exemption include the following:

• “If you can provide supporting medical documentation that aligns with Directive #6 set by the Ministry of Health, the committee would be happy to look at the medical information.”^{Footnote 47}
• The submitted material does not provide the objective medical or meet the criteria required in accordance with Directive #6, set by the Ministry of Health.”^{Footnote 48}

[87] Even if the Claimant’s doctor couldn’t sign the hospital’s precise medical exemption form, it’s reasonable for the Claimant to have provided the hospital with the strongest possible note from a medical professional to support her exemption request.

[88] Instead, the Claimant insisted that the hospital go through its records to find evidence of an allergic reaction that she had to a tuberculosis test she did when first hired by the hospital (around 2002). However, it was the Claimant’s obligation to obtain information from a medical professional about her severe allergies.

[89] For these reasons, I’ve concluded that quitting was not the Claimant’s only reasonable course of action.

Conclusion

[90] I have sympathy for the Claimant and for her concerns about getting vaccinated. Nevertheless, I have to dismiss her appeal.

[91] I agree that the General Division made errors of law and of fact in its decision. Those errors allow me to give the decision the General Division should have given.

[92] The General Division reached the right conclusion, regardless of its errors. For the purposes of the EI Act, the Claimant was suspended from her job for misconduct and then voluntarily quit without just cause.

[93] This means that the Claimant is disentitled from receiving EI benefits between October 17, 2021, and January 30, 2022. She is also disqualified from receiving EI benefits from January 31, 2022.