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COVID - Insurance. Workman Optometry Professional Corporation v. Certas Home and Auto Insurance Company
In Workman Optometry Professional Corporation v. Certas Home and Auto Insurance Company (Ont CA, 2024) the Ontario Court of Appeal dismissed a class action appeal where the underlying action was for 'business interruption insurance' claims made during COVID (the claims were dismissed).
. Palozzi v. Canada (Attorney General)
In Palozzi v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal considered a JR of an EI misconduct appeal decision, here where the underlying issue was COVID vaccination compliance:[1] The applicant was dismissed by his employer because he failed to comply with the employer’s COVID-19 vaccination policy. The General Division of the Social Security Tribunal (SST) found that he was disqualified from receiving Employment Insurance benefits under section 30 of the Employment Insurance Act, S.C. 1996, c. 23, because he had lost his job due to his misconduct. The applicant now seeks judicial review of the August 7, 2023 decision of the Appeal Division of the SST (file number AD-23-193) affirming the General Division’s decision.
[2] The applicant submits that his failure to respect the vaccination policy was not misconduct because the policy did not allow alternatives to the vaccine and was therefore unreasonable. He also submits that the policy did not form part of his employment contract because the employer introduced it after he had signed the contract. Therefore, he argues, by failing to comply with the policy, he had not breached an express or implied duty resulting from the employment contract and had committed no misconduct.
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[4] In its reasons, the Appeal Division considered the General Division’s findings of fact, including that the applicant was aware of his employer’s vaccination policy and that he knew he could be terminated for not following it. It considered the applicable jurisprudence of this Court and of the Federal Court on the meaning of the term "“misconduct”", including Canada (Attorney General) v. Lemire, 2010 FCA 314; Mishibinijima v Canada (Attorney General), 2007 FCA 36; and Paradis v. Canada (Attorney General), 2016 FC 1282. It held that the General Division had correctly decided that whether the employer’s vaccination policy was reasonable or justifiable was irrelevant to its finding of misconduct under the Act.
[5] The Appeal Division decided that an employee who deliberately breaches an explicit policy set by his employer may be found to have committed misconduct under the Act whether or not compliance with the policy is expressly required by his employment contract, a conclusion consistent with decisions of this Court: Nelson v. Canada (Attorney General), 2019 FCA 222 at paras. 25–26; Lemire at paras. 17, 19–20. It held that the General Division did not err when it concluded that by refusing to disclose his vaccination status in contravention of the employer’s explicit policy, the applicant committed misconduct under the Act.
[6] In our view, the Appeal Division’s decision is reasonable. It is supported by the evidentiary record and, as this Court has observed in recent decisions involving similar circumstances, by the applicable jurisprudence: see e.g. Kuk v. Canada (Attorney General), 2024 FCA 74 at paras. 8–9; Sullivan v. Canada (Attorney General), 2024 FCA 7 at paras. 4–6; Lalancette v. Canada (Attorney General), 2024 CAF 58 (CanLII), 2024 FCA 58 at para. 2; and Zhelkov v. Canada (Attorney General), 2023 FCA 240 at para. 5. The Appeal Division reasonably found that, in determining whether the applicant committed misconduct under the Act, it cannot assess the reasonableness of the employer’s vaccination policy that led to his dismissal. We note that the applicant can raise that issue by way of other avenues, such as a wrongful dismissal action or a human rights complaint. . Kuk v. Canada (Attorney General)
In Kuk v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from a JR of "a decision of the Appeal Division of the Social Security Tribunal (SST)" denying the appellant EI (sic) eligibility (for misconduct) due to "failure to comply with [SS: 'the employer's'] COVID-19 vaccination policy":[1] Wieslaw Kuk appeals a decision of the Federal Court (2023 FC 1134, per Justice Glennys L. McVeigh) that dismissed his application for judicial review of a decision of the Appeal Division of the Social Security Tribunal (SST). The Appeal Division decision in issue refused Mr. Kuk leave to appeal a decision of the General Division of the SST that found that he was not entitled to employment insurance (EI) benefits following his dismissal from employment with University Health Network (UHN) for failure to comply with its COVID-19 vaccination policy (the Vaccination Policy).
[2] The General Division found that Mr. Kuk had been dismissed for misconduct (because his failure to comply with the Vaccination Policy was wilful) and, pursuant to section 30 of the Employment Insurance Act, S.C. 1996, c. 23, this disqualified him from receiving EI benefits. The Appeal Division noted the narrow scope of its jurisdiction to intervene (see subsection 58(1) of the Department of Employment and Social Development Act, S.C. 2005, c. 34) and concluded that Mr. Kuk’s appeal had no reasonable chance of success.
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[6] Mr. Kuk argues on various grounds that he had no obligation to comply with the Vaccination Policy, and hence his failure to comply with it was not misconduct. However, Mr. Kuk did not take issue before the Appeal Division with the fact that he was dismissed because UHN concluded he had failed to comply with the Vaccination Policy (see paragraph 15 of the Appeal Division’s decision).
[7] The Appeal Division made the following observations:A. Misconduct results from an act that is wilful, and does not require any wrongful intent (see paragraph 18 of the Appeal Division’s decision).
B. The General Division’s role was not to determine whether Mr. Kuk’s dismissal was unjustified, but rather (i) whether he was guilty of misconduct as defined, and (ii) whether that misconduct led to his dismissal (see paragraph 19 of the Appeal Division’s decision).
C. It was not for the SST to consider the merits of the Vaccination Policy (see paragraph 27 of the Appeal Division’s decision).
D. Any question of the employer’s misconduct was a matter for another forum (see paragraph 30 of the Appeal Division’s decision). [8] The Appeal Division found that Mr. Kuk made a deliberate choice not to comply with the Vaccination Policy, and that this was misconduct that resulted in his dismissal (see paragraphs 33 and 35 of the Appeal Division’s decision).
[9] In our view, this conclusion was entirely reasonable. Mr. Kuk has not convinced us that his case should be distinguished from at least four recent decisions of this Court in similar circumstances: Lalancette v. Canada (Attorney General), 2024 CAF 58; Sullivan v. Canada (Attorney General), 2024 FCA 7; Zhelkov v. Canada (Attorney General), 2023 FCA 240, 2023 A.C.W.S. 6179; Francis v. Canada (Attorney General), 2023 FCA 217. . Zhelkov v. Canada (Attorney General)
In Zhelkov v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal briefly considered (and dismissed) an appeal from an EI eligibility denial grounded in a COVID vaccination refusal, resulting in misconduct termination:[1] The applicant was denied Employment Insurance Benefits by the Canada Employment Insurance Commission after failing to comply with his employer’s COVID-19 vaccination policy. The Commission found that the applicant had lost his employment due to his own misconduct. The applicant requested a reconsideration but the Commission maintained its decision.
[2] The applicant appealed the Commission’s decision to the General Division of the Social Security Tribunal of Canada. The General Division dismissed the appeal on the basis that the applicant had lost his job due to misconduct because he refused to comply with his employer’s vaccination policy.
[3] The Appeal Division of the Social Security Tribunal of Canada granted leave to appeal the General Division’s decision. The Appeal Division found that the General Division misstated the applicant’s evidence and failed to address a number of the applicant’s arguments. In rendering the decision that the General Division should have rendered, the Appeal Division found that the General Division did not err in the result. The Appeal Division thus dismissed the appeal.
[4] The standard of review in this case is reasonableness (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65).
[5] We carefully considered the applicant’s submissions. However, we are all of the view that the Appeal Division’s decision bears the hallmarks of reasonableness: it is justified, transparent and intelligible. More particularly, the Appeal Division referenced the relevant jurisprudence and properly declined to address certain arguments that fell outside of its jurisdiction (Francis v. Canada (Attorney General), 2023 FCA 217; Cecchetto v. Canada (Attorney General), 2023 FC 102). The intervention of our Court is not warranted.
[6] The application for judicial review will therefore be dismissed without costs. . SIR Corp. v. Aviva Insurance Company of Canada
In SIR Corp. v. Aviva Insurance Company of Canada (Ont CA, 2023) the Court of Appeal engages in an interpretation of the insurance term: 'catastrophe', here in the context of COVID and a specific policy:(ii) The COVID-19 pandemic was not an “other catastrophe” within the meaning of Clause 14
[82] As noted, the application judge was prepared to accept that the COVID-19 pandemic may, in certain circumstances, meet the definition of “catastrophe.” However, she found that for the purposes of Clause 14 it was not an “other catastrophe.”
[83] SIR argues that this court should find that the COVID-19 pandemic was a catastrophe for the purposes of Clause 14, since it falls within the ordinary meaning of the term. It urges this court to ignore the two Australian cases relied upon by Aviva and referred to by the application judge, which held that the COVID-19 pandemic was not a catastrophe for the purposes of the policies that were at issue, saying that they are of no assistance: LCA Marrickville Pty Limited v. Swiss Re International SE, [2022] FCAFC 17, (2022) 401 ALR 204; Star Entertainment Group Limited v. Chubb Insurance Australia Ltd., [2022] FCAFC 16, (2022) 400 ALR 25.
[84] A catastrophe has been defined as "an event causing great damage or suffering": Angus Stevenson and Maurice Waite, eds., Concise Oxford English Dictionary, 12th ed. (New York: Oxford University Press, 2011), at p. 222. I agree with SIR that the COVID-19 pandemic was a catastrophe within the ordinary meaning of that term. As the application judge noted in her reasons, “it has been characterized as ‘a natural catastrophe in slow motion’ by virologist Christian Drosten.”
[85] Like the application judge, I also agree with SIR that the insurance policies considered by the Federal Court of Australia (Full Court) are different from the Policy. I do not rely on them for assistance.
[86] The key issue is whether the word catastrophe in Clause 14 should be given its ordinary meaning. One of SIR’s main arguments is that the term should not be read down, or limited, in light of the words “conflagration or other” which precede it. The application judge did so, writing:I would tend to agree with Aviva that given the sequence of words in [Clause] 14 (“to retard or prevent a conflagration or other catastrophe”), the meaning of “other catastrophe” is informed by the word in which it is in close proximity, that is “conflagration”, which is a physical event, an extensive fire. In my view, “or other catastrophe” would require a similar large‑scale destruction to property. [87] SIR disagrees with this approach. It submits that the meaning of a word should only be determined by the words immediately surrounding it when the word is unclear, it forms part of a list, and the surrounding words have a recognizable characteristic (citing Tomko v. Wawanesa Mutual Insurance Co. et al., 2007 MBCA 8, 212 Man. R. (2d) 155, at para. 17; National Bank of Greece (Canada) v. Katsikonouris, 1990 CanLII 92 (SCC), [1990] 2 S.C.R. 1029). It argues that the word “catastrophe” is not unclear. Nor does it appear in or follow a list of specific words with a recognizable characteristic. It follows one word – conflagration – and conflagration has several meanings. The Merriam-Webster Dictionary (online) defines “conflagration” as a war, a conflict, or a large disastrous fire. Therefore, argues SIR, a conflagration does not necessarily involve large-scale destruction to property.
[88] I agree with the application judge that COVID-19 is not a “catastrophe,” within the meaning of this particular policy.
[89] Words used in a policy take their meaning from the context in which they are used. Here, that context included that the word “catastrophe” is found in a policy that has as its foundation a requirement for risk of direct physical loss or damage to property and that it was preceded by the words “conflagration or other”. Courts have long accepted that in the construction “X or other Y,” the specific term X may limit the more general term Y by association: see Stag Line, Limited v. Foscolo, Mango & Co., Ltd., [1932] A.C. 328 (U.K. H.L.), at pp. 334, 348-49. Tomko and National Bank do not limit the interpretation of “catastrophe” in the manner that SIR urges.
[90] If the intention were to capture all manner of catastrophes, not just those that are similar in nature to a conflagration, then the clause could have simply been worded “to retard or prevent a catastrophe.” To avoid a tautology, it must be assumed that the words “conflagration or other” were inserted for some reason.
[91] As for SIR’s argument that conflagration has several meanings, including a war or conflict, and is therefore not clear enough to inform the interpretation of “catastrophe,” wars and conflicts can also be the direct cause of destruction to property.
[92] SIR also submits that if Aviva had intended to limit Clause 14 to exclude pandemic catastrophes, it could have included a virus exclusion. While it is true that the Policy does not contain a virus exclusion, that fact does not persuade me that “catastrophe” should be interpreted as including the COVID-19 pandemic. Exclusions do not create coverage: Progressive Homes, at para. 27. Similarly, the absence of an exclusion does not imply coverage.
[93] In addition, SIR submits that if there were an earthquake or cyclone or other such event causing large scale physical damage, SIR would be covered for damage to its property under Section II, and for business losses under Sections III and IV. SIR also submits that if its business were affected by a civil authority order “given as a direct ‘result’ of loss or damage caused by an earthquake, volcanic eruption, cyclone or hurricane, or threat thereof” it would be covered under Clause 15. With coverage already available, there would be no reason for SIR to pay an additional premium to purchase coverage under Clause 14.
[94] I agree that this interpretation of catastrophe results in some overlap in coverage. However, interpreting “catastrophe” in light of the words “conflagration or other” does not nullify coverage under Clause 14. As Aviva submits, Clause 14 operates to ensure that any incidental damage to an insured’s property caused by civil or military ordered activity to try and contain or prevent an event which could cause large-scale destruction of property is covered. For example, it would provide coverage where a civil or military authority orders the destruction of an insured’s property, such as to create a fire break to stop the spread of fire. I note that Clause 14 may provide coverage that would otherwise be excluded by clause 5(b)(ix) of Section II. It excludes coverage for, among other things, loss or damage caused by war, hostilities (whether war be declared or not), or military power.
[95] In conclusion, I agree with the application judge that COVID-19 is not a “catastrophe,” within the meaning of this particular policy. There is no need to resort to the contra proferentem rule to interpret the meaning of “catastrophe.”
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