Employment Insurance (EI)

Decision

[1] An extension of time to apply to the Appeal Division is granted. Leave (permission) to appeal is refused. This means that the appeal will not proceed.

Overview

[2] K. K. is the Claimant in this case. When she stopped working, she applied for Employment Insurance (EI) regular benefits.

[3] The Canada Employment Insurance Commission (Commission) decided that she could not get EI regular benefits because she was suspended and dismissed from her job due to her own misconduct. ^{Footnote 1}

[4] The General Division came to the same conclusion.^{Footnote 2} It decided that the Claimant was put on an unpaid leave (suspended) and then dismissed from her job due to misconduct because she didn’t comply with the employer’s mandatory Covid-19 vaccination policy.

[5] The Claimant is now asking for permission to appeal the General Division decision to the Appeal Division.^{Footnote 3} She argues that the General Division made an error of law and important error of fact when it decided the issue of misconduct.

[6] I am denying the Claimant’s request for permission to appeal because it has no reasonable chance of success.

Issues

[7] The issues in this appeal are:

1. a) Was the application to the Appeal Division late?
2. b) If so, should I extend the time for filing the application?
3. c) Is there an arguable case that the General Division made an error of law or an important error of fact?  

Analysis

The application to the Appeal Division was late

[8] The General Division issued its decision on January 22, 2023.

[9] The Claimant wrote that the General Division decision was communicated to her on January 26, 2023.^{Footnote 4}

[10] The deadline to file an application to the Appeal Division in the prescribed form and manner is 30 days after the day on which the General Division decision was communicated to her in writing.^{Footnote 5}

[11] Since the Claimant says that the General Division decision was communicated to her on January 26, 2023, then the 30 days starts counting from the following day on January 27, 2023.

[12] This means that the 30 day deadline to file her application to the Appeal Division was February 26, 2023. The one year deadline was January 27, 2024.

[13] The Claimant filed her application to the Appeal Division on January 22, 2024.^{Footnote 6}

[14] I find that the Claimant filed her application to the Appeal Division on January 22, 2024. She filed it late because it was more than 30 days after the General Division decision was communicated to her, but it was less than one year.

I am extending the time for filing the application

[15] I can give more time to appeal if the Claimant provides a reasonable explanation for why she was late.^{Footnote 7}

[16] The application to the Appeal Division provides a spot so that a party can identify the reasons for filing an appeal late. The following reasons were provided by the Claimant to explain the delay:^{Footnote 8}

• The Claimant retained legal counsel on January 26, 2023.
• Her counsel was out of the country at the time and this file was delegated to another member of the law firm to complete the application to the Appeal Division.
• However, the application did not get filed and it was only discovered in January 2024 during the firm’s annual review of outstanding matters.
• The application was then filed promptly with the Tribunal.
• It has been filed within the one year deadline and there is no prejudice to any party if the extension of time is granted.
• This issue involves the economic security of the Claimant.

[17] I find that the Claimant has provided a reasonable explanation for why her appeal was late, so I am granting the Claimant an extension of time to file her appeal. She has provided detailed reasons, and through no fault of her own, her application was not filed on time. As well, I have considered that it was filed within the one year deadline from the date it was communicated to her.^{Footnote 9}

Analysis

[18] An appeal can only proceed if the Appeal Division gives permission to appeal.^{Footnote 10}

[19] I must be satisfied that the appeal has a reasonable chance of success.^{Footnote 11} This means that there must be some arguable ground upon which the appeal might succeed. ^{Footnote 12}

[20] I can only consider certain types of errors. I have to focus on whether the General Division could have made one or more of the relevant errors (this is called the “grounds of appeal”).^{Footnote 13}

[21] The possible grounds of appeal to the Appeal Division are that the General Division did one of the following:^{Footnote 14}

• proceeded in a way that was unfair
• acted beyond its powers or refused to exercise those powers
• made an error in law
• based its decision on an important error of fact

[22] For the appeal to proceed to the next step, I have to find that there is a reasonable chance of success on one of the grounds of appeal.

The Claimant argues that the General division made an error of law and an important error of fact

[23] The Claimant says that the General Division made an error of law by failing to apply the appropriate test for misconduct as set out in a decision called Lemire.^{Footnote 15}  

[24] The Claimant also says the General Division made an error of fact by failing to consider the express terms of the Claimant’s contract of employment even though this evidence was before the General Division.

There is no arguable case that the General Division made an error of law

[25] An error of law can happen when the General Division doesn’t apply the correct law or when it uses the correct law but misunderstands what it means or how to apply it.^{Footnote 16}

[26] Misconduct is not defined in the Employment Insurance Act (EI Act) but the Courts have provided a definition.

[27] The Federal Court of Appeal defines “misconduct” to be conduct that is wilful, which means that the conduct was conscious, deliberate, or intentional.^{Footnote 17} Misconduct also includes conduct that is so reckless that it is almost wilful.^{Footnote 18}

[28] The Court has also said there is misconduct if the Claimant knew or should have known the conduct could get in the way of carrying out their duty to the employer and that dismissal was a real possibility.^{Footnote 19}

[29] The General Division had to decide whether the Commission had proven that the Claimant was suspended and later dismissed for misconduct.^{Footnote 20}

[30] The General Division decided that the Claimant was put on leave without pay (suspended) and then dismissed her on November 1, 2021 because she did not comply with the employer’s Covid-19 vaccination policy.^{Footnote 21} This was not disputed between the parties.

[31] The General Division decided that the Claimant was suspended and dismissed due to misconduct for the following reasons.^{Footnote 22} It said that the Claimant was advised of the employer’s vaccination policy and requirement to be vaccinated for Covid-19 by a specific deadline. She applied for a religious exemption from the policy, but it was denied by the employer. It found that she acted deliberately and knew the consequences of non-compliance would lead to her dismissal.

[32] The General Division also noted the Claimant did not dispute that her actions were wilful, or that she knew or ought to have known the consequences. ^{Footnote 23}

[33] The Claimant argues that the General Division made an error of law because it didn’t apply the test set out in the Lemire decision.^{Footnote 24} But, there is no arguable case that the General Division made an error of law for the following reasons.

[34] The General Division identified the correct law and relied on the Court’s definition of misconduct in its decision.^{Footnote 25} It applied the above legal test for misconduct based on the EI Act and relevant jurisprudence. 

[35] The Claimant referred to paragraph 14 of the Lemire decision in its appeal, but it missed part of it.^{Footnote 26}

[36] Paragraph 14 of the Lemire decision says the following:

“To determine whether the misconduct could result in dismissal, there must be a causal link between the claimant’s misconduct and the claimant’s employment; the misconduct must therefore constitute a breach of an express or implied duty resulting from the contract of employment.” (emphasis added)

[37] The Court says that an express or implied term of employment may be concrete or a more abstract requirement.^{Footnote 27} In Nelson and Kuk, the Court found that an employer’s written policy need not be included in an employee’s original contract to ground a finding of misconduct.^{Footnote 28}

[38] In this case, the Claimant’s employer was a hospital and it implemented a vaccination policy to reduce the risk of infection and transmission of Covid-19. It required the Claimant to be vaccinated for Covid-19 in order to be able to work. So, complying with the policy was clearly an essential duty of the Claimant’s employment, regardless of whether it was stated in her employment contract. 

[39] Similarly, the Court found misconduct in Cecchetto where another applicant who also worked at a hospital was terminated for misconduct.^{Footnote 29} He also refused to get a Covid-19 vaccine, which was contrary to his employer’s vaccination policy. He did not have an approved exemption. He made a voluntary decision to not comply with the employer’s vaccination policy, so it was considered misconduct and he was not entitled to receive EI benefits.

[40] The Court also underlined the Tribunal’s limited jurisdiction in the Cecchetto decision, at paragraph 32:

While the Applicant is clearly frustrated that none of the decision-makers have addressed what he sees as the fundamental legal or factual issues that he raises – for example regarding bodily integrity, consent to medical testing, the safety and efficacy of the COVID-19 vaccines or antigen tests – that does not make the decision of the Appeal Division unreasonable. The key problem with the Applicant’s argument is that he is criticizing decision-makers for failing to deal with a set of questions they are not, by law, permitted to address.

[41] In Butu, the Court explains that the test in Lemire for misconduct is different under the EI Act compared to a labour law context. Referring to Lemire, the Court said that the question of deciding whether or not the dismissal is justified under the meaning of labour law but, rather, of determining, according to an objective assessment of the evidence, whether the misconduct was such that its author could normally foresee that it would be likely to result in his or her dismissal.^{Footnote 30}

[42] In particular, the Court says that the General Division did not need to determine whether she could not perform her specific job duties without being vaccinated, but rather, whether she could not fulfill her duty to her employer to be able to show up for work, which required that all employees comply with the policy.^{Footnote 31}

[43] The Claimant also referred to another General Division decision with similar facts.^{Footnote 32}  However, the General Division correctly stated that it does not have to follow other Tribunal decisions and it explained why in its decision.^{Footnote 33}

[44] Lastly, the General Division correctly focused its analysis on the Claimant’s conduct and not the employer’s conduct. This is what the case law says to do and the General Division has to follow decisions from the Court.

[45] There is no arguable case that the General Division made an error of law.^{Footnote 34} It correctly identified the law and applied it based on relevant jurisprudence. Further, there is recent case law that is applicable.

There is no arguable case that the General Division made an important error of fact

[46] An error of fact happens when the General Division has “based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it”.^{Footnote 35}

[47] This means that I can intervene if the General Division based its decision on an important mistake about the facts of the case. This involves considering some of the following questions:^{Footnote 36}

1. a) Does the evidence squarely contradict one of the General Division’s key findings?
2. b) Is there no evidence that could rationally support one of the General Division’s key findings?
3. c) Did the General Division overlook critical evidence that contradicts one of its key findings?

[48] The Claimant says that the General Division failed to consider the express terms of her employment contract even though this evidence was before it.

[49] The General Division did not ignore the fact that the Claimant had an employment contract and that it did not include an expressed provision requiring Covid-19 vaccination, it simply disagreed with her.^{Footnote 37} Instead, it found that vaccination for Covid-19 was an essential condition of her continued employment.^{Footnote 38}

[50] As noted above, an express or implied term of employment may be concrete or a more abstract requirement.^{Footnote 39} An employer’s written policy need not be included in an employee’s original contract to ground a finding of misconduct.

[51] The General Division decided that the Claimant was informed about the employer’s vaccination policy. She was given time to comply, but did not so do by the deadline. She was also told about the consequences for non-compliance.^{Footnote 40} It found that she acted deliberately and chose not to comply with the employer’s Covid-19 vaccination policy, which is what led to her dismissal.^{Footnote 41}

[52] An appeal to the Appeal Division is not a new hearing. I cannot reweigh the evidence in order to come to a different conclusion that is more favourable for the Claimant.^{Footnote 42}

[53] There is no arguable case that the General Division made an important error of fact.^{Footnote 43} It did not ignore or overlook the employment contract. It found that vaccination for Covid-19 was a condition of her continued employment.

There are no other reasons for giving the Claimant permission to appeal

[54] There is no arguable case that the General Division made any other reviewable errors.^{Footnote 44} I reviewed the file and examined the General Division decision.^{Footnote 45} I did not find any relevant evidence that the General Division might have ignored or misinterpreted.

Conclusion

[55] An extension of time is granted. Permission to appeal is refused. This means that the appeal will not proceed.