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COVID - Employment Insurance (EI). Besley v. Canada (Attorney General)
In Besley v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed a JR, here against "the Canada Employment Insurance Commission decided that [SS: the applicant] was terminated for "“misconduct”" and thus disqualified from receiving employment insurance benefits by virtue of section 30 of the Employment Insurance Act" - this in a COVID vaccination refusal context:[5] The test for "“misconduct”" for the purpose of subsection 30(1) of the Employment Insurance Act is well-established: whether the claimant knew or ought to have known their conduct—in this case, Mr. Besley’s decision not to become vaccinated—would result in dismissal. "“Misconduct”" under this test does not require malicious or "“wrong”" behaviour. Consistently and repeatedly this Court has said that whether, under applicable labour laws, the employer was justified in dismissing the employee is irrelevant to a finding of "“misconduct”" for that purpose: see, for example, Mishibinijima v. Canada (Attorney General), 2007 FCA 36 at para. 21, leave to appeal to SCC refused, 31967 (27 September 2007), citing Canada (Attorney General) v. Marion, 2002 FCA 185 at para. 3 [Marion]; Canada (Attorney General) v. McNamara, 2007 FCA 107 at para. 22, citing Marion, Canada (Attorney General) v. Caul, 2006 FCA 251 and others; Canada (Attorney General) v. Lemire, 2010 FCA 314 at para. 15, citing Meunier v. Canada (Employment and Immigration Commission) (1996), 1996 CanLII 3983 (FCA), 208 N.R. 377, 69 A.C.W.S. (3d) 1163 (F.C.A.) at para. 2; Sullivan v. Canada (Attorney General), 2024 FCA 7 at para. 6 [Sullivan]; and Zagol v. Canada (Attorney General), 2025 FCA 40 at para. 28 [Zagol].
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[7] Indeed, this Court and the Federal Court have dismissed many judicial review applications brought by individuals terminated from employment, and then disqualified for employment insurance, because their failure to comply with COVID-19 vaccination policies was found to constitute "“misconduct”" for purposes of subsection 30(1) of the Employment Insurance Act: see, for example, Lance v. Canada (Attorney General), 2025 FCA 41; Cecchetto v. Canada (Attorney General), 2024 FCA 102, leave to appeal to SCC refused, 41441 (13 February 2025); Khodykin v. Canada (Attorney General), 2024 FCA 96; Palozzi v. Canada (Attorney General), 2024 FCA 81; Kuk v. Canada (Attorney General), 2024 FCA 74; Zhelkov v. Canada (Attorney General), 2023 FCA 240; Francis v. Canada (Attorney General), 2023 FCA 217, leave to appeal to SCC refused, 41064 (16 May 2024); Sullivan; and Zagol. In each case, as here, the decision under review was found reasonable. . Zagol v. Canada (Attorney General)
In Zagol v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed a JR in an extensive ruling, here from a finding of the Appeal Division of the Social Security Tribunal (SST) that affirmed an earlier General Division decision "that he was disqualified from receiving Employment Insurance (EI) benefits under subsection 30(1) of the Employment Insurance Act" for EI misconduct for refusing COVID vaccinations:[7] The General Division summarized the legal principles, formulated by this Court, that apply to a determination of misconduct under subsection 30(1) of the Act: General Division Decision at paras. 14-15. It noted that to constitute misconduct, the claimant’s conduct had to be wilful, in the sense that it was conscious, deliberate or intentional; misconduct would be made out if the claimant knew or should have known that his conduct could get in the way of carrying out his duties towards his employer and that there was a real possibility that he could be dismissed as a result (Mishibinijima v. Canada (Attorney General), 2007 FCA 36, 279 D.L.R. (4th) 121 at para. 14, leave to appeal to SCC refused. [Mishibinijima]). It also observed that the focus of the inquiry is on the employee’s rather than the employer’s behaviour (Canada (Attorney General) v. McNamara, 2007 FCA 107, 366 NR 201 at paras. 22-23, Paradis v. Canada (Attorney General), 2016 FC 1282, 273 A.C.W.S. (3d) 322 at paras. 30-31).
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[9] The Appeal Division observed that, under section 58(1) of the Department of Employment and Social Development Act, S.C. 2005, c. 34 (the DESD Act), it was bound to dismiss the appeal unless the Applicant established that the General Division had (1) failed to observe a principle of natural justice, (2) erred in law or (3) based its decision on an erroneous finding of fact that it made in a perverse and capricious manner or without regard for the material before it: Appeal Division Decision at para. 9.
[10] The Appeal Division reviewed the decision of the Federal Court in Abdo v. Canada (Attorney General), 2023 FC 1764 [Abdo] which, following the decision of this Court in Francis v. Canada (Attorney General), 2023 FCA 217 [Francis], dismissed arguments that, in the Appeal Division’s view, were similar to those raised by the Applicant. It concluded that it was bound by these decisions and saw no reason not to follow them in deciding the Applicant’s appeal: Appeal Division Decision at para. 25.
[11] Turning to the General Division’s decision, the Appeal Division found that the preponderant evidence before the General Division showed that the Applicant had voluntarily decided not to follow the Policy and that this resulted in his dismissal. Moreover, it decided that the General Division had committed no reviewable error when it decided the issue of misconduct solely within the parameters set out by this Court in defining misconduct under the Act. Accordingly, it dismissed the appeal: Appeal Division Decision at paras. 50-51.
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[22] As noted at the hearing by counsel for the Applicant, this case is not about whether the CAF’s policy was reasonable. Nor is it about whether the Applicant’s human rights or Charter rights were violated by the vaccination policy. Indeed, the test for misconduct under subsection 30(1) of the Act focuses on the employee’s knowledge and actions rather than the employer’s behaviour or the reasonableness of its work policies, thereby ensuring that the Social Security Tribunal remains a forum to determine entitlement to social security benefits, not to adjudicate allegations of wrongful dismissal (Sullivan v. Canada (Attorney General), 2024 FCA 7, 2024 CarswellNat 35 at para. 6). The sole issue in this case is whether it was reasonable for the Appeal Division, in light of the record before it and of this Court’s jurisprudence interpreting subsection 30(1) of the Act, to uphold the General Division’s decision confirming the Commission’s finding that the Applicant had committed misconduct.
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A. This Court’s jurisprudence under subsection 30(1) of the Act
[25] The purpose of the Act is to compensate persons whose employment is terminated involuntarily and who are without work: Canada (Canada Employment and Immigration Commission) v. Gagnon, 1988 CanLII 48 (SCC), [1988] 2 S.C.R. 29, 52 D.L.R. (4th) 42 at para. 13. Subsection 30(1) therefore provides that benefits are not received in circumstances where a person’s loss of employment is not involuntary:Disqualification — misconduct or leaving without just cause
Exclusion : inconduite ou départ sans justification
30 (1) A claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause (…)
30 (1) Le prestataire est exclu du bénéfice des prestations s’il perd un emploi en raison de son inconduite ou s’il quitte volontairement un emploi sans justification (…) [26] "“Misconduct”" is not defined in the Act. Accordingly, this Court and the Federal Court have defined what conduct qualifies as misconduct and thereby disqualifies a claimant from receiving EI benefits:[T]here will be misconduct where the conduct of a claimant was wilful, i.e. in the sense that the acts which led to the dismissal were conscious, deliberate or intentional. Put another way, there will be misconduct where the claimant knew or ought to have known that his conduct was such as to impair the performance of the duties owed to his employer and that, as a result, dismissal was a real possibility.
[Mishibinijima at para. 14.] [27] This definition, since referred to by this Court as the "“objective definition”" of misconduct (Nelson v. Canada (Attorney General), 2019 FCA 222, 308 A.C.W.S. (3d) 774 (CanLII) at para. 21, leave to appeal to SCC refused [Nelson]), sets a low bar to establishing disqualifying conduct under subsection 30(1). To establish misconduct pursuant to this provision, it is enough for a claimant to understand or to be aware that certain consequences would follow from his acts or omissions. Specifically, it is sufficient for the claimant to know that his conduct would mean that an express or implied essential condition of employment, relating "“to a concrete or more abstract requirement”" ceases to be met: Canada (Attorney General) v. Brisette, 1993 CanLII 3020 (FCA), [1994] 1 F.C. 684 (C.A.), 46 A.C.W.S. (3d) 370 at para. 10 [Brisette]. Such conditions of employment can originate from various sources, including a law, a regulation, an ethical rule, a contract of employment or an employer policy: Brisette at para. 10; Nelson at para. 25; Canada (Attorney General) v. Lemire, 2010 FCA 314, 331 D.L.R. (4th) 247 at paras. 17, 19-20.
[28] Under this objective definition of misconduct, it is not necessary that a claimant’s conduct be blameworthy or such that it might merit discipline. Rather, it is sufficient if the conduct in question is undertaken with the knowledge that dismissal might result. This low bar for a finding of misconduct is illustrated in a line of cases where this Court consistently held that employees could be guilty of misconduct even where the conduct leading to their breach of an essential condition of employment arose from an addiction to alcohol or drugs (Canada (Attorney General) v. Turgeon, 1999 CanLII 9119 (FCA), [1999] F.C.J. No. 1861, 254 N.R. 314 (FCA); Canada (Attorney General) v. Wasylka, 2004 FCA 219, [2004] F.C.J. No. 977 [Wasylka]; Canada (Attorney General) v. Richard, 2005 FCA 339, [2005] F.C.J. No. 1750; Canada (Attorney General) v. Pearson, 2006 FCA 199, [2006] F.C.J. No. 818; Mishibinijima, supra). Thus, while an employee’s consumption of drugs may have been "“irresistible”", this Court held that, for the purposes of subsection 30(1), it was "“voluntary in the sense that his acts were conscious and that he was aware of the effects of that consumption and the consequences which could or would result”" (Wasylka at para. 4). These decisions also demonstrate that misconduct can be found in circumstances where discipline likely could not be imposed, including where an employee’s consumption of alcohol or drugs constituted a disability under applicable human rights legislation and where the employer failed to accommodate him (Mishibinijima at para. 23).
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(1) The Appeal Division reasonably found that it was bound by Francis and Abdo
[30] In my view, in dismissing the Appellant’ appeal from the General Division’s decision, it was reasonable for the Appeal Division to rely on this Court’s decision in Francis and the Federal Court’s decision in Abdo because they involved factual circumstances and legal arguments similar to those present in this case.
[31] In Francis, the claimant requested an exemption from his employer’s mandatory COVID-19 vaccination policy on the basis of creed, a prohibited ground of discrimination under the Ontario Human Rights Code, R.S.O. 1990, c.H.19 which encompasses discrimination based on religion (R.C. v. District School Board of Niagara, 2013 HRTO 1382 at para. 31). The employer refused his request and, when Francis failed to become vaccinated by the required date, terminated him. The Commission found that Francis had lost his job due to misconduct, and disqualified him from EI benefits. That decision was upheld by the General Division and the Appeal Division of the SST.
[32] Before the Appeal Division, Francis argued that "“he had no real choice”" to abstain from vaccination and that in religious matters, "“being unable to do something is not the same thing as freely choosing not to [do] that thing”": RF v. Canada Employment Insurance Commission, 2023 SST 185 at para. 91 [Francis SST-AD]. Applying the objective definition of misconduct, the Appeal Division nevertheless decided that Francis had committed misconduct, because he chose not to follow the vaccination requirement even though he knew his request for an exemption had been refused and that failure to comply with the requirement could lead to termination: Francis SST-AD at para. 114.
[33] In his judicial review application before this Court, Francis raised once again the argument that he had no real choice in abstaining from vaccination. He submitted that it was unreasonable for the Appeal Division to determine that he deliberately failed to comply with the employer’s policy. The Court rejected this submission, noting that the Appeal Division’s determination "“was adopted from the General Division’s findings of fact”" and that "“this was reasonable, especially since the Appeal Division has a limited scope to interfere with these findings of fact.”" (Francis at para. 13). Moreover, the Court decided that the Appeal Division had grounded its decision on reasonable interpretations of the law: Francis at para. 6.
[34] In Abdo, the claimant’s employer denied her request to be accommodated under the employer’s COVID-19 vaccination policy on the basis of her religious beliefs and terminated her when she failed to receive the COVID-19 vaccine. The General Division found that Abdo had lost her position because she had refused to comply with her employer’s vaccination policy, and in doing so, had committed misconduct under the Act, disqualifying her from EI benefits. The Appeal Division denied Abdo leave to appeal the decision.
[35] Before the Federal Court, Abdo argued that religion was an immutable characteristic and that both the General Division and the Appeal Division had acted unreasonably by failing to "“meaningfully consider the jurisprudence on religion and immutable characteristics”" that she had raised before them: Abdo at para. 15. Noting that Abdo had sought an exemption to the vaccination policy for the same reason as Francis, the Federal Court held that Abdo’s case was not distinguishable from Francis:Therefore, the FCA’s reasoning must be followed. The FCA has endorsed that a voluntary refusal of an employer’s mandatory COVID vaccine policy, which leads to the employee’s dismissal after failing to receive an exemption for religious reasons, can constitute misconduct under the EIA.
[Abdo at para. 20.] [36] Moreover, the Federal Court held that even if Francis was distinguishable, the judicial review must still fail. It was reasonable for the Appeal Division to uphold the General Division’s finding of misconduct based on its application of the objective definition of misconduct set out by the Federal Court of Appeal: Abdo at paras. 22-23, citing Nelson at para. 21.
[37] At the hearing, counsel for the Applicant submitted that the Appeal Division could not have relied on Francis and Abdo to dismiss the Applicant’s claim that, in view of Supreme Court of Canada precedents, he could not commit misconduct because his conduct could not be wilful given the immutability of his religious beliefs. She noted that while a "“tangential immutability argument”" was made before the Court in Francis, it did not include any reference to the Supreme Court of Canada precedents in Corbière and Quebec v. A. While she acknowledged that the applicant in Abdo did refer to those precedents, she argued that because the Federal Court did not expressly mention them in its reasons, it "“made no finding on immutability in light of [these precedents]”" and did not grapple with the impact of these precedents on wilfulness. Accordingly, she reasoned, there was nothing in Francis or Abdo upon which the Appeal Division could rely to dismiss the Applicant’s claim.
[38] The Applicant’s argument elevates form over substance and must be rejected. In Francis, this Court upheld as reasonable a finding by the SST that, following the objective definition of misconduct, an employee’s abstention from vaccination in violation of their employer’s policy constituted misconduct even in the face of his argument that, in light of his religious belief, there was "“no real choice”" involved in his decision. In Abdo, the Federal Court came to the same conclusion where the employee raised a similar argument, this time supported by the very jurisprudence on religious freedom and immutable characteristics advanced by the Applicant. In my view, it was eminently reasonable for the Appeal Division to decide that, confronted with similar arguments and similar factual circumstances, it was bound to follow Francis and Abdo in deciding the appeal before it. . Zhou v. Canada (Attorney General)
In Zhou v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal considered the difficult interaction between the EI 'regular' provisions and those of the COVID EI Emergency Response Benefit:[4] The provisions applicable to this application relate to entitlements to employment insurance (EI) benefits and employment insurance emergency response benefits (EI ERB) and are set out in the Employment Insurance Act, S.C. 1996, c. 23 (EI Act) and the Employment Insurance Regulations, S.O.R./96-332 (EI Regulations). The relevant provisions are numerous and complex and are therefore set out in the Appendix to these reasons.
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A. Did the Appeal Division reasonably conclude that the applicant was entitled to EI ERB as opposed to regular EI benefits in respect of her first claim?
[29] Turning more specifically to the first issue, the applicant argues that she was not entitled to EI ERB by virtue of paragraph 153.9(1)(a) of the EI Act because she was not a Canadian resident and that she ought to have received 36 weeks of regular EI benefits under her first claim. She contends that it was unreasonable for the Appeal Division to conclude otherwise.
[30] I disagree.
[31] As the Appeal Division noted in its decision, paragraph 153.9(1)(a) of the EI Act is not the only provision of relevance. By virtue of the combined effect of section 153.1310, paragraphs 153.9(1)(b), 153.5(2)(b), and subsection 153.5(3) of the EI Act, the benefits the applicant received, which were originally assessed as regular EI benefits under Part I of the EI Act, are deemed to have been EI ERB. Moreover, the Appeal Division reasonably applied subsections 153.8(1), (5) and (6) of the EI Act to end the applicant’s EI ERB benefit period on October 3, 2020.
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