SR v Canada Employment Insurance Commission

SR v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2024-10-06 Neutral citation 2024 SST 1188 Reference number AD-24-348 Member Melanie Petrunia Division Appeal Division Decision Application for leave to appeal refused Related decisions SST - SR v Canada Employment Insurance Commission - 2024 SST 1189 - 2024-04-05 - General Division Decision Content Citation: SR v Canada Employment Insurance Commission, 2024 SST 1188 Social Security Tribunal of Canada Appeal Division Leave to Appeal Decision Applicant: S. R. Respondent: Canada Employment Insurance Commission Decision under appeal: General Division decision dated April 9, 2024 (GE-22-2912) Tribunal member: Melanie Petrunia Decision date: October 6, 2024 File number: AD-24-348 On this page Decision Overview Preliminary matters Issues I am not giving the Claimant permission to appeal Conclusion Decision [1] Leave (permission) to appeal is refused. The appeal will not proceed. Overview [2] The Applicant, S. R. (Claimant) was suspended from his job for not complying with his employer’s mandatory vaccination policy. Later, the employer asked the Claimant to return to work but he refused. The Claimant applied for Employment Insurance (EI) regular benefits. [3] The Respondent, the Canada Employment Insurance Commission (Commission) decided that the Claimant was disentitled to benefits for the period that he was suspended because the reason for the suspension was misconduct. It also decided that he voluntarily left his job without just cause when he did not return to work and that he had not proven his availability for work for the period from January 24 to May 27, 2022. [4] The Claimant appealed the Commission’s decisions to the Tribunal’s General Division. He argued that certain sections of the Employment Insurance Act (EI Act) violated the Canadian Charter of Rights and Freedoms (Charter).Footnote 1 The General Division issued a decision before the Claimant’s hearing, finding that the Claimant’s arguments did not meet the requirements to raise a constitutional issue before the Tribunal (Charter decision).Footnote 2 [5] The Claimant’s appeal proceeded without consideration of his Charter arguments. Following the Claimant’s hearing, the General Division issued another decision dismissing his appeal (merit decision). It found that the Claimant was suspended because of misconduct, that he did not have just cause for refusing to return to his job when he was recalled and that he had not proven his availability for work. [6] The Claimant is now asking to appeal both of the General Division decisions to the Tribunal’s Appeal Division. However, he needs permission for his appeal to move forward. The Claimant argues the General Division made errors of law and based its decisions on important factual errors. [7] I have to decide whether there is some reviewable error of the General Division on which the appeal might succeed. I am refusing leave to appeal because the Claimant’s appeal has no reasonable chance of success. Preliminary matters [8] As discussed above, the General Division issued two decisions in this matter. The Claimant is appealing both decisions and addressed them both in his application for leave to appeal. This decision deals with his request for leave to appeal both General Division decisions. Issues [9] The issues raised concerning the Charter decision are: a) Is there an arguable case that the General Division made an error of law by finding that the Claimant’s arguments concerning the conduct of the Commission did not amount to a constitutional argument? b) Is there an arguable case that the General Division made an error of law by failing to consider that the lack of a definition of misconduct in the EI Act creates the potential for abuse due to vagueness? c) Is there an arguable case that the General Division made an error of law by failing to consider the causal connection between the EI Act and the violation of the Claimant’s Charter rights? d) Is there an arguable case that the General Division based its decision on an important factual error by characterizing the Claimant’s arguments as relating to vaccination status instead of religious freedom? [10] The issues concerning the merit decision are: a) Is there an arguable case that the Charter decision made it impossible for the Claimant to have a fair hearing? b) Is there an arguable case that the General Division made an error of law by failing to consider the merits of the vaccination policy? c) Is there an arguable case that the General Division based its decision on an important factual error when it found that the Claimant did not prove that his employer discriminated against him? d) Is there an arguable case that the General Division based its decision on a factual error when it found that the Claimant did not try to resolve his concerns about returning to a hostile workplace? e) Is there an arguable case that the General Division erred in law by finding that the Claimant set a personal condition that limited his chances of returning to work? I am not giving the Claimant permission to appeal [11] The legal test that the Claimant needs to meet on an application for leave to appeal is a low one: Is there any arguable ground on which the appeal might succeed?Footnote 3 [12] To decide this question, I focused on whether the General Division could have made one or more of the relevant errors (or grounds of appeal) listed in the Department of Employment and Social Development Act (DESD Act).Footnote 4 [13] An appeal is not a rehearing of the original claim. Instead, I must decide whether the General Division: a) failed to provide a fair process; b) failed to decide an issue that it should have, or decided an issue that it should not have; c) based its decision on an important factual error;Footnote 5 or d) made an error in law.Footnote 6 [14] Before the Claimant can move on to the next stage of the appeal, I have to be satisfied that there is a reasonable chance of success based on one or more of these grounds of appeal. A reasonable chance of success means that the Claimant could argue his case and possibly win. I should also be aware of other possible grounds of appeal not precisely identified by the Claimant.Footnote 7 The Charter decision [15] The Claimant filed a Charter Challenge Notice with the Tribunal in which he outlined his position that sections 29 to 33 and section 51 of the EI Act violate his rights under sections 2, 7 and 15 of the Charter.Footnote 8 The Commission filed written submissions in response to the Claimant’s notice.Footnote 9 [16] A member of the General Division considered the Claimant’s arguments and issued the Charter decision. In its decision, the General Division set out the requirements for raising a Charter challenge.Footnote 10 It found that most of the Claimant’s arguments related to the actions of his employer.Footnote 11 The General Division determined that these arguments are not relevant to the Claimant’s Charter challenge of certain sections of the EI Act and that they are better raised in other forums.Footnote 12 [17] The General Division considered the Claimant’s arguments concerning the use of the word misconduct in the EI Act without defining the term.Footnote 13 He said that this allows for the Commission to find that refusing to submit to a policy that violates a claimant’s rights is misconduct. This creates a potential violation of his right to religious freedom and discrimination based on his religion.Footnote 14 [18] The General Division found that this was not a valid constitutional argument because it was more concerned with the conduct of the Commission than the actual provisions of the EI Act. The Claimant did not show how the sections directly, or by their effects, create a distinction based on a protected ground. The Claimant also did not show how the sections deny a benefit while creating or contributing to a disadvantage.Footnote 15 [19] The General Division also considered the Claimant’s position that he had provided evidence of his Section 15 rights being violated which the Commission did not accept despite the employer not testifying before the Commission. The General Division found that this also concerned the conduct of the Commission rather than the sections of the EI Act.Footnote 16 No arguable case the General Division erred in law [20] The Claimant says that the General Division erred in law by finding that the conduct of the Commission was not relevant to the determination of whether the EI Act itself potentially violates the Charter.Footnote 17 He argues that the conduct of government actors, the Commission agents, in administering the EI Act is relevant to whether or not the sections of the legislation violate the Charter. [21] The Claimant relies on a decision of the Supreme Court of Canada to support his argument that the actions of the administrators of legislation can amount to a violation of the Charter.Footnote 18 [22] I find that there is no arguable case that the General Division erred in law. It considered the arguments that the Claimant put forward regarding the conduct of the Commission perpetuating the violation of his Charter rights by his employer. It explained why this does not amount to a valid Charter challenge of the relevant sections of the EI Act.Footnote 19 The Claimant is restating the same arguments that he made before the General Division. [23] The Claimant also argues that the General Division made an error of law by failing to consider that the lack of a definition of the term “misconduct” in the EI Act creates the potential for abuse due to vagueness. In both his submissions before the General Division and in this application for leave to appeal, the Claimant says that this vagueness can allow an employer to violate a claimant’s Charter rights, which is then condoned by the Commission due to their interpretation of “misconduct.”Footnote 20 [24] Again, this argument was considered by the General Division. The General Division found that the Claimant did not set out the facts needed to show how the sections of the EI Act that he takes issue with directly, or indirectly, violate his Charter rights.Footnote 21 I see no arguable case that the General Division made an error of law. [25] While the term “misconduct” is not defined in the EI Act, case law from the Federal Court and Federal Court of Appeal has set out the proper test to apply when determining whether the reasons for dismissal or suspension amount to misconduct. [26] Essentially, what the Claimant takes issue with is the inability of the Commission or the Tribunal to consider the merits of the employer’s policy. However, the Federal Court and the Federal Court of Appeal have repeatedly stated that this is not their role.Footnote 22 [27] The Claimant says that the causal connection between the violation of his section 7 rights and the EI Act is established by the evidence and circumstances of his case. He argues that the other remedies proposed by the General Division are too time-consuming or cost prohibitive for examining the actions of his employer.Footnote 23 [28] I understand that the Claimant is frustrated by the inability of the Commission or the Tribunal to examine the actions of his employer. I have reviewed the notice filed with the General Division. It is clear that the Claimant’s primary concern is the actions of his employer in denying his religious exemption request and demanding that he be vaccinated in order to remain employed. He argues that these actions violate his Charter rights and the Commission perpetuates these violations by deeming his actions misconduct and denying him benefits.Footnote 24 [29] The General Division considered the arguments made by the Claimant in his Notice. It explained with reasons why these arguments do not amount to a valid constitutional challenge. There is no arguable case that it erred in law. No arguable case the General Division based its decision on a factual error [30] The Claimant takes issue with the General Division’s finding that he would need to establish that the impugned sections of the EI Act create a distinction based on a protected right and show that the distinction was based on religion and not vaccination status. He argues that the evidence he presented shows that the violation of his Charter rights is based on his sincerely held religious beliefs and not his vaccination status.Footnote 25 [31] The General Division explained the test that the Claimant had to meet. It found that he had not established how sections 29, 30 or 31 of the EI Act create a distinction based on a protected right. It found that he had not provided valid arguments to support his claims. The comments made by the General Division about the distinction between vaccination status and religious beliefs was in the context of explaining the elements that the Claimant had to establish.Footnote 26 [32] The General Division found that the Claimant had not provided valid arguments to support his Charter Challenge. I see no evidence that it made a factual error when it stated that he would have to prove a distinction based on a protected ground and had not done so. There is no arguable case that the General Division erred in this respect. The General Division merit decision [33] The Claimant’s appeal continued without the Charter arguments following the interlocutory decision. The General Division found that the Claimant was suspended from his job from December 22, 2021 to April 1, 2022 due to his own misconduct. It based its decision on the following findings: The employer had a policy concerning vaccination against COVID-19; The Claimant was aware of the policy and what was required of him under that policy; The Claimant’s request for an exemption for religious reasons was denied; The Claimant knew that he could be suspended for failing to comply with the policy; and The Claimant’s decision not to comply with the policy was conscious and deliberate.Footnote 27 [34] The General Division then considered whether the Claimant voluntarily left his job when he was recalled by his employer but did not return. The Claimant argued that he did not quit. When his employer advised him that he could return to work, the Claimant sent a letter with a number of questions. He did not receive a reply.Footnote 28 [35] In a subsequent communication from the employer, the Claimant was asked to confirm his intention to return to work by completing and returning a form. The Claimant did not complete the form.Footnote 29 [36] The General Division found that the Claimant had initiated the separation from his employment by not returning to his job when it was offered by the employer. It decided that the Claimant voluntarily left.Footnote 30 [37] The General Division then considered all of the circumstances that existed when the Claimant voluntarily left. It found that the Claimant failed to prove that he had just cause for leaving his job. It determined that there was a reasonable alternative to quitting, and that the Claimant could have made an effort to resolve his concerns about the hostile work environment.Footnote 31 [38] The Commission had decided that the Claimant was disentitled under both of the sections of the law that require claimants to show that they are available for work.Footnote 32 However, the General Division found that the Commission did not provide sufficient evidence that it asked the Claimant to prove he made reasonable and customary efforts to find a suitable job. So, it found that the Commission did not disentitle the Claimant under this provision.Footnote 33 [39] The General Division considered whether the Claimant had proven that he was capable of and available for work but unable to find a suitable job. It looked at the following three factors: a) A desire to return to work as soon as a suitable job is available; b) Making efforts to find a suitable job; and c) Not setting personal conditions that unduly limit the chances of returning to work.Footnote 34 [40] The General Division considered the Claimant’s conduct and attitude when looking at each of these factors.Footnote 35 It found that the Claimant did have a desire to return to work as soon as he found a suitable job and that he made enough efforts to find work.Footnote 36 [41] The General Division found that the Claimant did set personal conditions that limited his chances of returning to work by refusing to apply for jobs that required vaccination against COVID-19.Footnote 37 No arguable case that the General Division failed to provide a fair process [42] The Claimant argues that the Charter decision prevented him from having a fair hearing before the General Division because he was not able to present further Charter arguments.Footnote 38 [43] I find that there is no arguable case that the General Division failed to provide a fair process. It followed the proper process when the Claimant said he may want to make arguments that his Charter rights were violated. The General Division explains in its decision that it adjourned the hearing to allow the Claimant to file a notice and proceed with the process required for Charter cases.Footnote 39 [44] The Claimant had an opportunity to present his arguments concerning the Charter. I understand that he disagrees with the Charter decision but that does not mean that his hearing before the General Division was unfair. There is no arguable case that the General Division failed to follow procedural fairness. No arguable case the General Division erred by failing to consider the merits of the vaccination policy [45] The Claimant argues that the General Division erred by failing to consider the vaccination policy and conduct of his employer when determining whether he had just cause for not returning to work. He says that the fact that his employer had discriminated against him and not apologized was just cause for not returning. He wrote to the employer with a number of questions about returning to work and they did not reply.Footnote 40 [46] The Claimant argues that it was an error for the General Division not to consider that he refused to follow a discriminatory policy that violated his Charter rights. He says that it was also an error for the General Division to find that it could not consider whether his employer violated his employment contract.Footnote 41 [47] There is no arguable case that the General Division made an error of law. The comments that the Claimant referenced in the General Division decision about not considering the conduct of the employer are found in the discussion of the Claimant’s suspension due to misconduct.Footnote 42 [48] The General Division cited case law from the Federal Court and the Federal Court of Appeal in support of it’s finding. The cases that it cited are binding and support the statement that the General Division cannot consider the conduct of the employer or the validity of the vaccination policy. No arguable case that the General Division based its decision on factual errors [49] The General Division found that the Claimant had not established that he did not return to work because of discrimination by the employer. The Claimant argues that this is wrong in fact and law. He says that he should not be expected to return to work after he was discriminated against when he was suspended and did not receive an apology.Footnote 43 [50] The General Division considered the Claimant’s arguments that he had just cause for not returning to work because of discrimination. It found that the alleged discrimination took place prior to his suspension and there was no evidence that the employer would discriminate against him upon his return to work.Footnote 44 [51] The Claimant argues that, even if there was no evidence related to discrimination on his return to work, the fact that his exemption request was refused casts doubt on the future conduct of the employer. He says that he was engaged in litigation against his employer which would make for a very hostile work environment.Footnote 45 [52] The Claimant says that the General Division erred by finding that he did not prove that his employer discriminated against him because he did not submit findings from a Court or Human Rights Commission. He argues that it should not be used against him that his claims in other venues have not yet been decided.Footnote 46 [53] I find that there is no arguable case the General Division made an error of law or based its decision on an important factual error when it found that the Claimant did not have just cause for not returning to work due to discrimination. [54] The General Division decision includes a detailed review of the evidence. It considered the Claimant’s arguments about the employer’s past conduct and the advice that he received from his lawyer.Footnote 47 Based on the evidence before it, the General Division found that the Claimant did not prove his employer discriminated against him, noting that its role is not to decide whether the employer should have granted a religious exemption.Footnote 48 [55] There is no arguable case that the General Division based this determination on a finding of fact that it made in a perverse or capricious manner or without regard for the material before it. There was a factual foundation for the General Division’s findings. [56] It is not the role of the Appeal Division to reweigh the evidence. The General Division took all relevant evidence into consideration and explained the reasons for its findings. It properly applied the law when considering whether the Claimant had just cause. [57] The Claimant argues that the General Division erred by finding that he did not make any efforts to resolve concerns he had about returning to a hostile work environment. He says that he had a lawyer who was in communication with his employer which demonstrates an obvious attempt to resolve workplace issues. He references unanswered emails to his employer outlining the questions he had regarding his return.Footnote 49 [58] The General Division refers to the Claimant’s email in its decision.Footnote 50 It considered the Claimant’s argument that his employer was not communicating with him or answering his questions. Taking the contents of the Claimant’s email and the employer’s letters into consideration, the General Division found that the Claimant did not state his concerns about a hostile work environment or demonstrate an effort to resolve his concerns.Footnote 51 [59] There is no arguable case that the General Division based its decision that the Claimant did not make any efforts to resolve his concerns about a hostile work environment on an important factual mistake. The General Division considered and weighed the Claimant’s evidence. Again, it is not the role of the Appeal Division to reweigh the evidence. No arguable case the General Division made an error of law [60] The Claimant argues that the General Division erred when it found that he set a personal condition limiting his chances of finding suitable employment by not applying for jobs that required vaccination. He says that the General Division ignored section 9.3.1.3 of the Digest of Benefit Entitlement Principles which states that suitable work does not include work that goes against a claimant’s moral convictions or religious beliefs.Footnote 52 [61] The General Division considered the Claimant’s position that a job requiring vaccination was not suitable for him. It found that the legislation requires that the work or duties to be performed must go against the Claimant’s moral convictions or religious beliefs. The requirement to be vaccinated is not the work or duties to be performed therefore the requirement to be vaccinated does not make the work unsuitable for the Claimant.Footnote 53 [62] There is no arguable case that the General Division made an error of law or misinterpreted the legislation. It considered the Claimant’s arguments and explained, with reference to the legislation, why it did not agree with the Claimant. [63] There is no arguable case that the General Division based this decision on an important mistake about the facts. The General Division clearly understood the Claimant’s position and considered it. It found that the decision not to be vaccinated was a personal decision that limited the Claimant’s chances of finding suitable employment.Footnote 54 [64] The Claimant is largely restating the arguments that he made before the General Division. I find that the General Division took the Claimant’s evidence and arguments into consideration. It applied the proper legal tests and explained the reasons for its findings. There is no arguable case that the General Division erred in law or based its decision on important factual errors. [65] Aside from the Claimant’s arguments, I have also considered the grounds of appeal. The Claimant has not pointed to any errors of jurisdiction and I see no evidence of such errors. [66] The Claimant has not identified any errors of either the General Division Charter decision or merit decision, upon which the appeal might succeed. As a result, I am refusing leave to appeal. Conclusion [67] Permission to appeal is refused. This means that the appeal will not proceed. Footnotes Footnote 1 See Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c11. Footnote 2 See GD16, Interlocutory Decision dated November 30, 2023. Footnote 3 This legal test is described in cases like Osaj v Canada (Attorney General), 2016 FC 115 at para 12 and Ingram v Canada (Attorney General), 2017 FC 259 at para 16. Footnote 4 DESD Act, s 58(2). Footnote 5 The language of section 58(1)(c) actually says that the General Division will have erred if it bases its decision on a finding of fact that it makes in a perverse or capricious manner or without regard for the material before it. The Federal Court has defined perverse as “willfully going contrary to the evidence” and defined capricious as “marked or guided by caprice; given to changes of interest or attitude according to whim or fancies; not guided by steady judgment or intent” Rahi v Canada (Minister of Citizenship and Immigration) 2012 FC 319. Footnote 6 This paraphrases the grounds of appeal. Footnote 7 Karadeolian v Canada (Attorney General), 2016 FC 615; Joseph v Canada (Attorney General), 2017 FC 391. Footnote 8 GD10 Footnote 9 GD14 Footnote 10 GD 16 at paras 11 to 15. Footnote 11 GD 16 at para 16. Footnote 12 GD16 at para 20. Footnote 13 GD 16 at paras 21 and 22. Footnote 14 GD16 at para 22. Footnote 15 GD16 at paras 25 to 27. Footnote 16 GD16 at para 28. Footnote 17 AD1-8 Footnote 18 See AD1-8 and AD1-9 where the Claimant references Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69 (CanLII). Footnote 19 GD16 at para 20. Footnote 20 AD1-9 Footnote 21 GD16 at paras 25 to 27. Footnote 22 See Cecchetto v Canada (Attorney General), 2024 FCA 102; Kuk v Canada (Attorney General), 2024 FCA 74; Sullivan v Canada (Attorney General), 2024 FCA 7; Laurence v. Canada (Attorney General), 2024 FC 1498; Brown v. Canada (Attorney General), 2024 FC 1544; Boskovic v. Canada (Attorney General), 2024 FC 841. Footnote 23 AD1-14 Footnote 24 GD10 Footnote 25 AD1-9 to AD1-10 Footnote 26 GD16 at para 26. Footnote 27 General Division decision at paras 91 to 97. Footnote 28 General Division decision at paras 103 to 106. Footnote 29 General Division decision at paras 107 to 108. Footnote 30 General Division decision at para 111. Footnote 31 General Division decision at para 146. Footnote 32 General Division decision at para 148. Footnote 33 General Division decision at para 158. Footnote 34 General Division decision at para 171. Footnote 35 General Division decision at para 172. Footnote 36 General Division decision at paras 173 to 178. Footnote 37 General Division decision at para 184. Footnote 38 AD1-15 Footnote 39 General Division decision at paras 17 to 21. Footnote 40 AD1-16 Footnote 41 AD1-16 Footnote 42 General Division decision at para 50. Footnote 43 AD1-16 Footnote 44 General Division decision at para 124. Footnote 45 AD1-16 Footnote 46 AD1-17 Footnote 47 General Division decision at paras 122 to 131. Footnote 48 General Division decision at par 135. Footnote 49 AD1-16 Footnote 50 General Division decision at para 128. Footnote 51 General Division decision at paras 121 to 130. Footnote 52 AD1-19 Footnote 53 General Division decision at para 163. Footnote 54 General Division decision at para 184.