In Spears v. Canada (Attorney General), 2024 FC 329, the employee, a public servant, was dismissed for misconduct after failing to comply with her employer’s Covid-19 Vaccination Policy, despite her status as a remote worker.  Her subsequent application for employment insurance (“EI”) benefits was denied.  After two failed appeals, the employee brought the matter before the Federal Court on judicial review. On February 28, 2024, the Federal Court dismissed her application, thereby affirming the original decision to deny her EI benefits.

In October 2021, the employer, the Government of Canada, introduced a mandatory COVID-19 vaccination policy (the “Policy”) that required its employees to attest to their vaccination status while providing a process for seeking accommodation on medical or religious grounds. As a result of not disclosing her vaccination status or seeking any form of accommodation, the employee was suspended in November 2021.

The employee’s application for EI benefits was denied in March 2022 after the Canada Employment Insurance Commission (the “Commission”) determined that the employee’s suspension was a result of her own misconduct.  The employee applied for reconsideration and the Commission upheld its decision in July 2022.

The employee then brought appeals before the General Division, and later the Appeal Division, which were both denied in February 2023 and April 2023, respectively.  The employee subsequently applied for judicial review, bringing her claim before the Federal Court.

In assessing the reasonableness of the Commission’s findings, the Federal Court noted the following:

• Under the Employment Insurance Act (the “Act”), EI benefits are only available to a claimant if their loss of employment is involuntary, and a claimant is disqualified from receiving EI benefits if they voluntarily leave their job without “just cause” or if they leave as a result of their own misconduct;
• The test for misconduct under the Act does not require an assessment as to the merits, reasonableness, or efficacy of the employer’s policy, nor is the test concerned with the conduct of the employer;
• Misconduct within the meaning of the Act refers to the employee’s wilful violation of an employment rule, with misconduct being defined as an employee “consciously, deliberately or intentionally” violating an employer’s policy;
• The employer had adopted a policy, the employee knew of the policy, the employee knew of the consequences of non-compliance, and the employee chose not to comply;
• The Policy remained valid notwithstanding that it was adopted after hiring and was therefore not part of the employee’s original written contract or collective agreement; and
• The Social Security Tribunal (the “Tribunal”) is not the proper forum to challenge the validity of an employer’s policy.

The Federal Court ultimately dismissed the employee’s application and determined that the appropriate test for misconduct had been applied by the Commission. 

In a similar recent case – Canada Employment Insurance Commission v HC, 2023 SST 1379 – the Tribunal determined that an employee was ineligible for EI benefits after she voluntarily retired to avoid abiding by her employer’s vaccination policy.  In that case, the employee chose to retire after several months of suspension created financial pressures, which she claimed were exasperated by her ineligibility for EI benefits.  After hearing arguments about what type of conduct amounted to “just cause”, the Tribunal held that “leaving one’s employment to improve their financial situation may well constitute good cause, but it does not constitute just cause”, and accordingly, the employee was ineligible for EI benefits.

If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.