HJ v Canada Employment Insurance Commission

HJ v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2023-03-17 Neutral citation 2023 SST 314 Reference number AD-23-100 Member Pierre Lafontaine Division Appeal Division Decision Application for leave to appeal refused Related decisions SST - HJ v Canada Employment Insurance Commission - 2022 SST 1705 - 2022-12-22 - General Division Subjects EI - Denied for misconduct - Non-compliance to vaccination policy Decision Content Citation: HJ v Canada Employment Insurance Commission, 2023 SST 314 Social Security Tribunal of Canada Appeal Division Leave to Appeal Decision Applicant: H. J. Respondent: Canada Employment Insurance Commission Decision under appeal: General Division decision dated December 22, 2022 (GE-22-3259) Tribunal member: Pierre Lafontaine Decision date: March 17, 2023 File number: AD-23-100 On this page Decision Overview Issue Analysis Conclusion Decision [1] 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 with her condition, it was imperative to wait until more information was available about the safety of the vaccine. She submits that there is no proof that she breached an express or implied duty arising out of her employment contract. [6] The Claimant submits that the Policy was unilaterally imposed by the employer without any consideration of the collective agreement and without consultation with the bargaining agent. It was not considered that her collective agreement states that employees have the right to refuse any vaccination. The Claimant submits that Canadian common law states that an individual has the right to control what happens to their bodies and has the final say in whether they accept any medical treatment without coercion. [7] I must decide whether the Claimant has raised some reviewable error of the General Division upon which the appeal might succeed. [8] I refuse leave to appeal because the Claimant’s appeal has no reasonable chance of success. Issue [9] Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed? Analysis [10] 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. [11] 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. [12] 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? [13] The Claimant submits that with her condition, it was imperative to wait until more information was available about the safety of the vaccine. She submits that there is no proof that she breached an express or implied duty arising out of her employment contract. [14] The Claimant submits that the Policy was unilaterally imposed by the employer without any consideration of the collective agreement and without consultation with the bargaining agent. It was not considered that her collective agreement states that employees have the right to refuse any vaccination. The Claimant submits that Canadian common law states that an individual has the right to control what happens to their bodies and has the final say in whether they accept any medical treatment without coercion. [15] The role of the General Division is to consider the evidence presented to it by both parties, to determine the facts relevant to the legal issue before it and to articulate, in its written decision, its own independent decision with respect thereto. [16] It is well established that to decide the Claimant's application for leave to appeal, I must rely on the evidence that was presented to the General Division.Footnote 1 [17] The General Division had to decide whether the Claimant lost her job because of misconduct. [18] 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. [19] In other words, 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. [20] 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 [21] Based on the evidence before it, 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 a medical or religious exemption. The Claimant refused intentionally; this refusal was wilful. This was the direct cause of her dismissal. [22] The General Division found that the Claimant knew that her refusal to comply with the Policy could lead to her dismissal. [23] The General Division concluded from the preponderant evidence that the Claimant’s behavior constituted misconduct. [24] It is well-established that a deliberate violation of the employer’s policy is considered misconduct within the meaning of the Employment Insurance Act (EI Act).Footnote 3 [25] 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 implemented its Policy to protect the health of all employees during the pandemic. The Policy was in effect when the Claimant was dismissed. [26] It was not for the General Division to decide questions about the vaccine’s effectiveness or the reasonableness of the employer’s Policy. [27] The question of whether the employer should have accommodated the Claimant by allowing her to work from home, or whether the employer should have granted her a religious exemption, or whether the employer’s Policy violated her employment rights, 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 4 [28] 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. [29] 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 5 [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 the employer and had lost his job because of misconduct under the EI Act.Footnote 6 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 his 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 7 [37] The Claimant submits that there was a confidential settlement with the employer. As stated by the General Division, the Amended Record of Employment mentions that the Claimant was “terminated” in accordance with an agreement reached by the Union.Footnote 8 [38] The settlement between the parties does not change the nature of the misconduct, which initially led to the Claimant's dismissal.Footnote 9 [39] In her application for leave to appeal, the Claimant has not identified any reviewable errors such as jurisdiction or any failure by the General Division to observe a principle of natural justice. She has not identified errors in law nor identified any erroneous findings of fact, which the General Division may have made in a perverse or capricious manner or without regard for the material before it, in coming to its decision on the issue of misconduct. [40] 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 [41] Leave to appeal is refused. This means the appeal will not proceed. Footnotes Footnote 1 Sibbald v Canada (Attorney General), 2022 FCA 157. The Claimant did not mention before the General Division that her collective agreement specifically allowed her to refuse any vaccination. She also did not file her collective agreement in support of her position. Footnote 2 Canada (Attorney general) v Marion, 2002 FCA 185; Fleming v Canada (Attorney General), 2006 FCA 16. Footnote 3 Canada (Attorney General) v Bellavance, 2005 FCA 87; Canada (Attorney General) v Gagnon, 2002 FCA 460. Footnote 4 In Paradis v Canada (Attorney General), 2016 FC 1282, the Claimant argued that the employer’s policy violated his rights under the Alberta Human Rights Act. The Court found it was a matter for another forum; See also Mishibinijima v Canada (Attorney General), 2007 FCA 36, stating that the employer’s duty to accommodate is irrelevant in deciding misconduct cases. Footnote 5 Cecchetto v Canada (Attorney general), 2023 FC 102. Footnote 6 The Court refers to Bellavance, see above note 3. Footnote 7 Paradis v Canada (Attorney General); 2016 FC 1282; Canada (Attorney General) v McNamara, 2007 FCA 107; CUB 73739A, CUB 58491; CUB 49373. Footnote 8 See GD9-2. Footnote 9 Canada (Attorney General) v Boulton, 1996 FCA 1682; Canada (Attorney General) v Morrow, 1999 FCA 193.