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The Federal Court dismissed judicial review of an SST Appeal Division decision denying EI benefits after non-compliance with Air Canada’s COVID-19 vaccination policy.
The General Division correctly applied the legal test for voluntary leaving under s.29(c): on the evidence before it the Claimant had reasonable alternatives (including returning to work where employer indicated at least 30 hours/week and past weeks showed 35–60 hours), did not demonstrate he had no reasonable alternative to leaving, and therefore did not have just cause; the disqualification from benefits as of April 2, 2023 stands.
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Ontario Court of Appeal partially allowed an employment appeal, upheld the finding of no just cause and no failure to mitigate, but reduced damages by $32,881.43.
Permission to appeal is refused because the claimant failed to establish an arguable reviewable error; the General Division reasonably concluded that the claimant’s failure to attend work due to incarceration breached an essential condition of employment and amounted to misconduct/voluntary leaving without just cause.
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Leave to appeal was refused because the applicant failed to establish an arguable case that the General Division committed any reviewable error: the General Division correctly identified and applied the law, properly considered the evidence, made permissible factual findings that reasonable alternatives to leaving existed, and any procedural misstatement did not prejudice the claimant, so the appeal has no reasonable chance of success.
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The court found the employer did not condone the plaintiff's misconduct because it acted reasonably by commissioning an independent investigation, promptly acting on its findings, and actively seeking a replacement; the plaintiff admitted pervasive dishonest conduct (misappropriation, undisclosed excessive wages, interest-free loans, payment of personal expenses) which, in context, constituted just cause for summary dismissal; the defendant's counterclaim succeeded and damages of $814,681.99 were awarded against the plaintiff.
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The General Division erred by failing to provide adequate reasons for preferring the employer's evidence and by finding that absence of a medical clearance equated to voluntary leaving without evidence of willful refusal; the Commission did not meet its burden to show the claimant had a choice, therefore the claimant did not voluntarily leave his employment.
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The Appeal Division allowed the appeal because the General Division accepted voluntariness without properly addressing the claimant's disputed evidence and relied on unsupported presumptions about the criminal justice system; that reliance gave rise to a reasonable apprehension of bias and breached natural justice, requiring the matter be returned to the General Division for reconsideration by a different member.
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Permission to appeal refused because claimant failed to establish an arguable case of legal error or important factual error; the General Division applied the correct law, its findings were supported by the record, and the new evidence submitted to the Appeal Division was inadmissible.
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Leave to appeal is refused because the Claimant failed to show an arguable case that the General Division made an important factual error: the psychotherapist letter is new evidence not before the General Division and does not meet exceptions for admission, and the General Division's findings — including that medical evidence did not show persistent impairment to the date of resignation and that reasonable alternatives existed — are supported by the record and not perverse or capricious.
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