Employment Insurance (EI)

Decision

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

Overview

[2] The Applicant, C. C. (Claimant), is seeking leave (permission) to appeal the General Division decision. The General Division dismissed the Claimant’s appeal.

[3] The General Division found that the Respondent, the Canada Employment Insurance Commission (Commission), proved that the Claimant was suspended from his job because of misconduct. In other words, it found that he had done something that caused his employer to suspend him. The Claimant had not complied with his employer’s mandatory COVID-19 vaccination policy.

[4] As a result of the misconduct, the Claimant was disentitled from receiving Employment Insurance benefits for the duration of the suspension. So, any benefits he received are an overpayment that he has to repay.

[5] The Claimant denies that he committed any misconduct. He argues that the General Division member made an important factual error about whether he had applied for an exemption.

[6] Before the Claimant can move ahead with his appeal, I have to decide whether the appeal has a reasonable chance of success. In other words, there has to be an arguable case.^{Footnote 1} If the appeal does not have a reasonable chance of success, this ends the matter.^{Footnote 2}

[7] I am not satisfied that the appeal has a reasonable chance of success. Therefore, I am not giving permission to the Claimant to move ahead with his appeal.

Issue

[8] Is there an arguable case that the General Division made an important factual error about whether the Claimant had applied for an exemption from his employer’s policy?

I am not giving the Claimant permission to appeal

[9] Leave to appeal is refused if the Appeal Division is satisfied that the appeal does not have a reasonable chance of success. A reasonable chance of success exists if the General Division may have made a jurisdictional, procedural, legal, or a certain type of factual error.^{Footnote 3}

[10] For factual errors, the General Division had to have based its decision on an error that it made in a perverse or capricious manner, or without regard for the evidence before it.^{Footnote 4}

The Claimant does not have an arguable case that the General Division made a factual error

[11] The Claimant does not have an arguable case that the General Division made a factual error when it said that he had not applied for an exemption. The Claimant says that he had applied for an exemption. However, the evidence fell short in showing that the Claimant had actually applied for an exemption. It is clear that he wanted to get an exemption and that he told his employer, but that is not quite the same thing.

[12] The Claimant argues that the General Division misapprehended the evidence. At paragraph 29, the member wrote that the Claimant had not applied for an exemption from his employer’s policy.

[13] The Claimant says that he had in fact applied for an exemption. The Claimant says that if the member had recognized that he had applied for an exemption, that it would have found that he had been unaware that he faced a suspension. And, if he was unaware that he could face a suspension if he did not comply with the policy, then his conduct did not qualify as misconduct.

[14] The evidence in the hearing file is as follows:

• “[The Claimant] stated he responded and told the employer he wanted to apply for a human rights violation exemption. The employer responded to the [Claimant] with a form for a religious exemption. The [Claimant] stated he does not intend to seek a religious or medical exemption. The [Claimant] stated he responded to the employer to state this was not the correct exemption he requested. The [Claimant] stated he has still not heard back from the employer…
• The [Claimant] stated the requirements for the human rights exemption were less clear, and that the union is currently in arbitration with the employer to determine what is required for a human rights exemption.”^{Footnote 5}
• “[The employer] stated the [vaccination] policy allows for two different types of exemptions under the Ontario Human Rights Code, and that is likely what the [Claimant] is referring to. [The employer] stated the two exemptions are for medical or religious reasons only … [The employer] stated that there is no official arbitration happening with the union.”^{Footnote 6}
• The Claimant disagreed with his employer’s statements that there were only two exemptions. The Claimant confirmed that he was not seeking a medical or religious exemption. He was seeking a human rights exemption. He stated that his employer offered this option in an email. He said he would give the Commission a copy of the employer’s email that indicated that, in addition to a religious and medical exemption, there was also a different exemption for human rights reasons. The Commission noted that it did not receive a copy of this email.^{Footnote 7}
• The employer’s vaccination policy stated that the employer would immediately place any fully unvaccinated employees on an unpaid leave of absence until the employee complied with the policy. The policy provided for accommodation for either medical or religious reasons. The policy did not list any other types of accommodations.^{Footnote 8}

[15] The evidence clearly shows that the Claimant did not apply for a medical or religious exemption.

[16] But the Claimant states that he applied for a human rights exemption. He says this is distinct from a medical or religious exemption. He says that his employer told employees in an email that they could apply for a human rights exemption, as distinct from a religious or medical exemption. He told the Commission that he would give it a copy of his employer’s email saying this, but the Claimant does not appear to have given the Commission a copy of this email.

[17] There was no evidence that showed that the Claimant had actually applied for an exemption of any kind, or that his employer was going to respond to him about any other kind of exemption outside of a religious or medical exemption. There is no evidence that shows that the Claimant told his employer his intentions to seek a human rights exemption. He says that he was waiting to hear back from his employer. However, there is no evidence to support this claim either.

[18] Hence, there is no arguable case that the General Division made a factual error when it wrote that the Claimant had not applied for an exemption.

[19] The Claimant did not mention anything about an exemption request in his Request for Reconsideration,^{Footnote 9} in his Notice of Appeal,^{Footnote 10} or at the hearing before the General Division.^{Footnote 11} He also did not argue or suggest that he was waiting for a response from his employer and therefore was unaware that his employer could suspend him.

[20] The General Division cannot be faulted for not addressing the issue about whether the Claimant had been waiting for a response from his employer and therefore unaware that he faced suspension. Surely the General Division cannot be expected to know that this was a live issue if the Claimant did not raise it.

Conclusion

[21] I am not satisfied that the Claimant has an arguable case that the General Division made an important factual error that he had requested an exemption. Permission to appeal is refused. This means that the appeal will not proceed.