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EI - Misconduct. Khodykin v. Canada (Attorney General)
In Khodykin v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismisses a JR from a Social Security Tribunal (Appeal Division) decision, that denied EI benefits in a COVID misconduct context:[2] The applicant was denied employment insurance benefits after he was suspended from employment without pay in 2021 as a result of failing to comply with his employer’s COVID vaccination policy. The Employment Insurance Act, S.C. 1996, c. 23, at section 31, provides that benefits are not payable during a period of suspension where the suspension is due to the claimant’s misconduct. At the time of the applicant’s suspension, he was employed by GardaWorld as a screening officer at Pearson International Airport in Toronto.
[3] The applicant appealed the matter to the General Division of the Social Security Tribunal. In a decision dated March 8, 2023, the General Division concluded that the applicant was properly denied employment insurance benefits because he was suspended as a result of misconduct. The conclusion was based on three findings: (1) the actions of the applicant led to his suspension; (2) he acted deliberately; and (3) the applicant knew that refusing to say whether he was vaccinated was likely to result in the suspension.
[4] The applicant further appealed to the Appeal Division which upheld the decision of the General Division. The Appeal Division determined that the General Division applied the right test of misconduct. It also determined that the General Division did not err by not considering the applicant’s collective bargaining agreement or whether the employer could impose new conditions of employment.
[5] The applicant filed an application for judicial review in this Court where he raised several arguments.
[6] The applicant submits that his actions did not amount to misconduct, because the conduct was not deliberate and the vaccination policy did not have any bearing on his ability to perform job functions. It appears that these issues were not raised before the Appeal Division because it did not mention them in its reasons which were detailed. In these circumstances, it is not appropriate for this Court to consider them on judicial review (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at para. 23).
[7] The applicant also suggests that the Appeal Division erred by failing to consider Charter protections. The Appeal Division found that there were several flaws with this submission. We will simply mention two.
[8] First, the Appeal Division found that the Social Security Tribunal did not have the authority to consider the constitutionality of the vaccination policy. This conclusion is supported by court authorities and is reasonable. In a recent decision of this Court, Sullivan v. Canada (Attorney General), 2024 FCA 7, at paragraph 12, the Court commented that “Charter values cannot be used to invalidate legislative provisions that administrative decision-makers must follow, such as, in this case, section 30 of the Employment Insurance Act. … [T]he Social Security Tribunal was reasonable in holding that the applicant was precluded under that section and related court jurisprudence from questioning the appropriateness of the termination of his employment.” The same principle applies to section 31 of the Employment Insurance Act which is applicable here.
[9] Second, the Appeal Division found that the applicant had not detailed his constitutional arguments. Such detail is required. As noted in Sullivan, at paragraph 8, "“[A]ll Charter arguments, whether based on rights, freedoms or values must be supported by a rich evidentiary record …”"
[10] In light of these principles, the Appeal Division’s decision concerning constitutional arguments was reasonable.
[11] Further, the applicant submits that there was no misconduct because the employer’s vaccination policy was invalid for failure to comply with employment-related law. We are of the view that the Appeal Division’s rejection of this submission was reasonable. The Appeal Division concluded that issues of wrongful dismissal were not relevant in determining whether there has been misconduct for purposes of the Employment Insurance Act. In making this finding, the Appeal Division properly relied on the decision of this Court in Karelia v. Canada (Human Resources and Skills Development), 2012 FCA 140. The principle is well-established (Karelia at para. 20) and continues to be regularly applied by this Court in cases similar to this (Kuk v. Canada (Attorney General), 2024 FCA 74, at para.9). . 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. . Sullivan v. Canada (Attorney General)
In Sullivan v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considers a COVID-related JR brought to challenge an EI decision by the Appeal Division of the Social Security Tribunal, here where the applicant was denied benefits [under s.30 ('Disqualification — misconduct or leaving without just cause') of the Employment Insurance Act]:[2] The applicant was denied benefits under section 30 of the Employment Insurance Act, S.C. 1996, c. 23. The Appeal Division, affirming a decision by the General Division delivered on November 7, 2022, held that the applicant was disqualified from receiving employment insurance benefits when he lost his job due to misconduct. He had failed to comply with his employer’s COVID vaccination policy.
[3] The applicant argued before both Divisions that he did not engage in misconduct on the job. Among other things, he focused on the validity of the employer’s vaccination policy.
[4] The Appeal Division rejected the applicant’s argument. Following applicable court jurisprudence (e.g., Canada (Attorney General) v. McNamara, 2007 FCA 107 at paras. 22-23, Paradis v. Canada (Attorney General), 2016 FC 1282 at paras. 30-31 and Cecchetto v. Canada (Attorney General), 2023 FC 102), the Appeal Division held that the test for misconduct focuses on the employee’s knowledge and actions, not on the employer’s behaviour or the reasonableness of its work policies. It added that the applicant could pursue remedies elsewhere if he considered that his employer treated him improperly.
[5] In our view, the Appeal Division’s decision is reasonable. It is supported by the evidentiary record before it and applicable court jurisprudence.
[6] We would add that the court jurisprudence makes sense. Were the applicant’s submissions to be upheld, the Social Security Tribunal would become a forum to question employer policies and the validity of employment dismissals. Under any plausible reading of the legislation that governs the Tribunal, it is a forum to determine entitlement to social security benefits, not a forum to adjudicate allegations of wrongful dismissal. We note that the applicant in fact has pursued remedies elsewhere for wrongful dismissal and has made a human rights complaint.
[7] Before both Divisions of the Social Security Tribunal, the applicant raised the Canadian Bill of Rights, S.C. 1960, c. 44. He raises it again here to suggest that his “misconduct” did not legally constitute misconduct. Here again, as explained above, this submission is legally irrelevant to the Social Security Tribunal’s task. Under its governing statute, the Social Security Tribunal cannot assess whether the applicant’s dismissal from employment was wrongful.
[8] In this Court, the applicant has raised the Charter in support of his claim. In the General Division, he raised Charter arguments but expressly withdrew them. Thus, his Charter arguments in this Court are a new, inadmissible issue: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654. We add that all Charter arguments, whether based on rights, freedoms or values must be supported by a rich evidentiary record, not by the “unsupported hypotheses of enthusiastic counsel” or judges: see the venerable, unquestioned case of Mackay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357, 61 D.L.R. (4th) 385 at 362. We do not have that sort of evidentiary record here.
[9] Just a couple of weeks before the appeal hearing, the Supreme Court released its decision in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31. In that decision, the Supreme Court held that decision-makers, at least in some circumstances, must take into account values resident in the Charter and that reviewing courts can consider them even where administrators have not considered them. Out of fairness to the applicant, we invited him to make submissions on whether the Tribunal should have taken into account any Charter values in this case.
[10] The applicant submits that Charter values of “freedom” and “equality”, as broad and unqualified as they are, should have been considered. He submits that the Appeal Division should have used “freedom” and “equality” to whittle down or eradicate the vaccination requirements that were enforced against him. We reject this submission.
[11] The text of the Charter and case law under it heavily qualifies “freedom” and “equality”. And everything in the Charter is subject to reasonable limits prescribed by law under section 1. As well, it must also be remembered that section 1 of the Charter, in binding words that cannot be ignored, says that the Charter protects the “rights and freedoms set out in it”, not other things such as “values”. Thus, the “values” that administrative decision-makers are to take into account cannot be broader than, undercut or do an end run around the established scope of the “rights and freedoms set out” in the Charter determined in accordance with the seminal, binding Supreme Court authority of Quebec (Attorney General) v. 9147-0732 Québec Inc., 2020 SCC 32, [2020] 3 S.C.R. 426. Undercutting the applicant’s submission is the fact that there are no Charter cases recognizing a general, unqualified entitlement to “freedom” or “equality”.
[12] It is worth adding that under Commission scolaire, Charter values cannot be used to invalidate legislative provisions that administrative decision-makers must follow, such as, in this case, section 30 of the Employment Insurance Act. Only unjustified violations of rights and freedoms can strike down legislation. Here, as we have said, the Social Security Tribunal was reasonable in holding that the applicant was precluded under that section and related court jurisprudence from questioning the appropriateness of the termination of his employment.
[13] The applicant also submits that he has been treated in a procedurally unfair manner. He focuses on the Social Security Tribunal receiving unsworn testimony. The Appeal Division answered this at paras. 15-16 of its decision, holding that it does have the power to receive unsworn testimony. We agree with this conclusion and the reasons offered by the Appeal Division.
[14] The applicant is certain that he was wrongly dismissed. We sympathize with his plight but as a court of law we are bound to apply the law. As mentioned above, the law is that the Social Security Tribunal cannot delve into whether the dismissal was proper or the reasonableness of the employer’s work policies that led to the dismissal. . Francis v. Canada (Attorney General)
In Francis v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered (and upheld) a JR "of a decision of the Appeal Division of the Social Security Tribunal" regarding an employment insurance benefits denial. The material facts were that the employee "refused to comply with the employer’s mandatory policy to obtain a COVID-19 vaccination":[2] The benefits were denied pursuant to s. 30 of the Employment Insurance Act, S.C. 1996, c. 23. This section provides that an employee is disqualified from receiving employment insurance benefits if the employee loses employment due to misconduct.
[3] The applicant was dismissed by his employer on the ground that he refused to comply with the employer’s mandatory policy to obtain a COVID-19 vaccination. The applicant had requested an exemption from the policy based on creed but the employer denied this request.
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