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EI - Misconduct (2). Henriques v. Canada (Attorney General)
In Henriques v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed a JR, here brought against "a decision of the Social Security Tribunal of Canada – Appeal Division (the Appeal Division) that dismissed his appeal of a decision of the General Division of that same tribunal", that holding the applicant had been dismissed for misconduct where "in his work in IKEA’s customer support call centre, he was repeatedly rude, aggressive and disrespectful with clients".
This EI 'misconduct' case illustrates the inherently subservient nature of the employment relationship:[3] The General Division noted correctly that Mr. Henriques was not entitled to EI benefits if he was dismissed because of his own misconduct: section 30 of the Employment Insurance Act, S.C. 1996, c. 23. The General Division also correctly noted at paragraph 39 of its decision that "“[t]here is misconduct if [Mr. Henriques] knew or should have known that his conduct could get in the way of carrying out his duties toward his employer and that there was a real possibility of being let go because of that”" (citing Mishibinijima v. Canada (Attorney General), 2007 FCA 36, 379 D.L.R. (4th) 121). An application for EI benefits is not the proper venue to question employer policies and the validity of employment dismissals: Sullivan v. Canada (Attorney General), 2024 FCA 7, [2024] F.C.J. No. 31 at para. 6.
[4] The General Division went on to consider the evidence concerning Mr. Henriques’ conduct and concluded that he had indeed engaged in misconduct in that he knew or ought to have known of IKEA’s policy on dealing with customers, he knew of the potential consequences of not complying with that policy (having previously been warned), and he willfully went against the policy by telling a customer to "“shut up”". The General Division also concluded that he was dismissed because of that misconduct.
[5] It is clear that Mr. Henriques disagreed with aspects of IKEA’s policy on dealing with customers, but that disagreement did not alter his obligation to comply with the policy.
[6] Mr. Henriques also takes issue with the General Division’s factual conclusions on how he behaved with IKEA’s customers. However, it was the General Division’s role to draw those conclusions. The Appeal Division and this Court have only limited powers to intervene. With regard to factual conclusions, the Appeal Division could intervene only where the General Division "“based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it”" (see paragraph 58(1)(c) of the Department of Employment and Social Development Act, S.C. 2005, c. 34). This Court may question the Appeal Division’s conclusions in that regard only if they are unreasonable: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653. We are not convinced that this is the case. The General Division and the Appeal Division considered the evidence, and Mr. Henriques has not shown that any of it was ignored or that any findings of fact were made in a perverse or capricious manner.
[7] The fact that warnings to Mr. Henriques about earlier misbehaviour might have occurred so long before that they could be considered expired does not alter the facts described above that led to the conclusion of misconduct: he was aware of IKEA’s expectations and of the potential consequences of failing to comply with them, and he willfully acted in contravention of those expectations. . Canada (Attorney General) v. Zoladkowski
In Canada (Attorney General) v. Zoladkowski (Fed CA, 2026) the Federal Court of Appeal dismissed an AG JR, this brought against "a decision of the Appeal Division of the Social Security Tribunal" which "reversed a decision of the Tribunal’s General Division, which had found that Nathaniel Zoladkowski had lost his job due to his own misconduct" due to his inability to work due to bail conditions:[22] I cannot accept the Attorney General’s argument. A review of this Court’s jurisprudence dealing with the issue of employee misconduct demonstrates that a claimant’s inability to fulfill a condition of their employment is not, by itself, sufficient to disentitle them to EI benefits.
[23] As this Court observed in Canada (Attorney General) v. Granstrom, 2003 FCA 485, there is a distinction between the effect of the misconduct in question and the cause of that misconduct: at para. 8. Indeed, the Court observed in Granstrom that if the argument that the Attorney General advances here were correct, "“there [would be] misconduct every time a person is unable to fulfill a condition of his or her employment. This cannot be.”"
[24] The Court found in Granstrom that an Umpire had erred by identifying the claimant’s inability to fulfill a condition of employment as constituting misconduct and that, in so doing, the Umpire had confused the effect of the misconduct with its cause. The Court held that it was necessary to examine the reason why the claimant’s driver’s licence had been suspended (which is what had led to the loss of his job) in order to determine whether he committed an act that amounted to misconduct: at para. 12.
[25] Numerous decisions of this Court have confirmed that the state of a claimant’s knowledge can be important in determining whether they have committed misconduct. For example, in Canada (A.G.) v. Brissette, 1993 CanLII 3020 (FCA), [1994] 1 F.C. 684, this Court reaffirmed that the claimant’s conduct "“must be wilful or deliberate or so reckless as to approach wilfulness”" to constitute misconduct.
[26] The claimant in Brissette was a truck driver, and possession of a valid driver’s licence was an essential condition of his employment. He lost his licence as a result of being convicted of impaired driving, and he lost his job as a result.
[27] The Commission advanced an argument similar to the one advanced by the Attorney General here, contending that Mr. Brissette lost his employment because he lost his driver’s licence and this amounted to misconduct on his part. In the Court’s view, it was "“too narrow an analysis and interpretation of the situation”" to attribute the loss of employment to the loss of the driver’s licence rather than the licence-holder’s underlying conduct. "“Clearly”", the Court said, "“we must examine the cause of the failure to comply with the conditions of the employment”": at p. 690.
[28] In finding that Mr. Brissette was disentitled to benefits, not just because of the loss of his driver’s licence but because of his misconduct, the Court had regard to the deliberate nature of his actions. That is, this Court observed that "“[t]he decision to drive is a deliberate act. The decision to drive after drinking alcohol is also deliberate. The decision to drive in these circumstances, knowing that, even without wishing to, one may be in violation of the provisions of the law […] is also deliberate or is so reckless as to approach wilfulness”": at pp. 688-689. Thus, it was the deliberate nature of his actions in drinking and driving that led the Court to conclude that Mr. Brissette had lost his licence because of a wrongful act on his part, which amounted to misconduct.
[29] This Court has undertaken a similar analysis, finding misconduct in other cases involving the loss of a job as a result of the knowing and deliberate consumption of alcohol, even in cases where the individual was addicted to alcohol: see, for example, Canada (Attorney General) v. Wasylka, 2004 FCA 219 at para. 4: Canada (Attorney General) v. Richard, 2005 FCA 339.
[30] Similarly, in cases where, like here, the proximate cause of the job loss was the failure to attend at work, the Court nevertheless went on to examine the underlying reason for the absenteeism in order to determine whether the employee’s behaviour amounted to misconduct: see, for example, Mishibinijima v. Canada (Attorney General), 2007 FCA 36 at para. 24.
[31] There are also cases such as this one where the proximate cause of the job loss was the failure to attend at work because of the claimant’s incarceration or the conditions of his release.
[32] For example, in Attorney General of Canada v. Lavallée, 2003 FCA 255, the claimant accumulated a number of unpaid fines for violations under the Highway Safety Code which resulted in his incarceration and subsequent release on parole. One of his parole conditions prevented him from working in Ontario (where his employer was located), which resulted in him losing his job. This Court found that Mr. Lavallée was himself the cause of his deprivation of liberty and subsequent loss of employment, and that he could not blame the loss of his job on the conditions of his parole because the conditions that were imposed were caused by his own actions: at para. 9.
[33] Similarly, in Canada (Attorney General) v. Ahmat Djalabi, 2013 CAF 213, the claimant had been incarcerated as a result of a complaint filed by his spouse alleging that he had uttered death threats against her, and he lost his job as a result. In assessing whether Mr. Djalabi had voluntarily left his employment, this Court looked at the facts underlying his incarceration, identifying the "“real issue”" as being "“whether the claimant voluntarily committed the acts that led to his incarceration, and therefore ""whether he voluntarily placed himself in a situation that would prevent him from keeping his employment”": at para. 10 [my emphasis]. The Court concluded that the evidence established that Mr. Djalabi’s own conduct had led to his incarceration and to the loss of his employment, thereby disentitling him to EI benefits.
[34] In Canada (Attorney General) v. Borden, 2004 FCA 176, this Court held that where a claimant loses their job because they are incarcerated, their employment is terminated by necessity. That said, the Court went on to observe that "“if a ""reprehensible act is to be identified as the real cause of that sudden situation, it is misconduct”": at para. 3, citing Smith v. Canada (Attorney General), 1997 CanLII 5451 (FCA), [1998] 1 FC 529, at para. 8, [my emphasis].
[35] The Lance case referred to earlier involved the loss of employment due to the claimant’s refusal to be vaccinated against Covid-19. There, this Court noted that the only question was "“whether the employee knew or ought to have known of the policy, the consequences of non-compliance, ""and voluntarily chose not to comply”": at para. 9, [my emphasis]. In finding that the claimant was disentitled to benefits as a result of his misconduct, the Appeal Division determined that the employee had notice of the employer’s policy, was aware of the consequences of non-compliance and made a conscious decision not to comply, with the result that the claimant’s loss of employment was voluntary and amounted to misconduct: at para. 10 [my emphasis].
[36] Finally, the Lemire decision cited by the Attorney General confirms that "“misconduct”" in the context of eligibility for EI benefits requires that a claimant "“knew or ought to have known that his or her conduct was such that it would result in dismissal”": at para. 11. Wrongful intent is not required: it is enough if the misconduct is "“conscious, deliberate or intentional”": at para. 13. The question was thus whether the claimant could "“normally foresee that [his conduct] would be likely to result in his or her dismissal:”" at para. 15.
The Application of the Case Law in this Case
[37] From the above review of the jurisprudence, it is evident that the Commission cannot simply rely on the fact that a claimant’s job loss results from their incarceration to find that they are not entitled to EI benefits because of misconduct. Contrary to the Attorney General’s position, it is not enough to show that a claimant knew that they had to attend work on a regular basis and that they risked losing their job if they failed to do so. The facts giving rise to the incarceration must be examined in order to see whether the claimant’s conduct was in fact willful, conscious, deliberate or reckless so as to disentitle them to benefits.
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[41] The onus is on the Commission to establish "“misconduct”" on the part of a claimant as the term has been defined in the jurisprudence. The failure to do so will result in the claim of misconduct being rejected. This is what occurred in Granstrom, where a Commission application for judicial review was rejected by this Court because of the "“total lack of evidence as to the cause and legality of the suspension of the claimant’s driving license”": above at para. 10. See also Lepretre v. Canada (Attorney General), 2011 FCA 30 at para. 3.
[42] As this Court observed in Granstrom, a conclusion such as that reached by the Appeal Division in this case "“imposes no hardship on the Commission”". This is because subsection 48(2) of the Employment Insurance Act, S.C. 1996, c. 23 provides that a benefit period cannot be established unless the claimant provides the Commission with information as to "“the circumstances pertaining to [any] interruption of earnings”" and "“such other information as the Commission may require”". As a result, the Commission can satisfy the burden imposed on it by making appropriate inquiries of the claimant: above at para. 13. . Sturgeon v. Canada (Attorney General)
In Sturgeon v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal from a Federal Court JR, that brought against as SST-AD denial of leave to appeal from the SST-GD decision which "ruled that its jurisdiction was limited to determine whether the denial of EI benefits complied with the Employment Insurance Act".
Here the court considered the Federal Court's jurisdiction (legal range) over the issue of 'misconduct' under the EI Act [s.30(1)], which it held as properly focussing on the behaviour of the employee rather than that of the employer. Here the appellant wanted to argue the legality of the employer's COVID policy:[4] Relying on the case law, the General Division ruled that its jurisdiction was limited to determine whether the denial of EI benefits complied with the Employment Insurance Act, S.C. 1996, c. 23 (the "“Act”"). Pursuant to subsection 30(1) of the Act, a claimant will be disqualified from receiving any benefits if the claimant lost their employment because of their "“misconduct”". This term is not defined by the Act, but has been interpreted as any conduct that the claimant knew or ought to have known could get in the way of carrying out their duties toward their employer, and that there was a real possibility of being let go because of that; Mishibinijima v. Canada (Attorney General), 2007 FCA 36 at para. 14. In other words, the focus of the Commission must be the act or omission of the employee, not on whether the employer’s policy is reasonable or fair. On the basis of these principles, the General Division had no trouble concluding that Mr. Sturgeon knew about the vaccination policy, and that his choice to not get vaccinated was conscious, deliberate, and intentional. Not being in compliance with his employer’s policy, he could not go to work and carry out his duties, and that is misconduct.
[5] More importantly for our purpose, the General Division also rejected Mr. Sturgeon’s arguments that his refusal to get vaccinated cannot be construed as misconduct because he was following his religious beliefs. Mr. Sturgeon had argued that his employer’s policy is an infringement of his right to religious freedom and bodily autonomy as enshrined in the Canadian Charter of Rights and Freedoms – Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.) (the "“Charter”"). On that specific issue, the General Division wrote:[65] These laws [the Charter, the Canadian Bill of Rights, the Canadian Human Rights Act, and other provincial laws that protect rights and freedoms] are enforced by different courts and tribunals. This Tribunal can consider whether a section of the Employment Insurance Act (or its regulations) infringes the rights that are guaranteed by the Charter. The Appellant hasn’t stated that he is challenging any part of the Employment Insurance Act. Rather, he feels that his employer’s policy infringed the Charter or human rights.
[66] It is beyond my jurisdiction (authority) to consider whether an action taken by an employer violates the Charter or human rights legislation. The Appellant would need to go to a different court or tribunal to address those types of issues. ....
[7] On judicial review before the Federal Court, the main issue was whether the Social Security Tribunal (both at the General Division and at the Appeal Division) was required to apply Charter values in interpreting the concept of "“misconduct”" in the Act. Applying the standard of reasonableness, the Federal Court found that the Appeal Division had not erred in denying leave to appeal. On the basis of the extensive case law with respect to the denial of EI benefits for failure to comply with an employer’s COVID-19 policies, the Court stressed the narrow role played by the Social Security Tribunal in those matters, and reiterated that the focus must be the conduct of the employee and not the justification for the employer’s policy or its compliance with the Charter. . Arnold v. Canada (Attorney General)
In Arnold v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed a JR, this brought against "a decision (Decision) of the Appeal Division of the Social Security Tribunal (SST) ... dismissing his appeal of a decision of the General Division of that Tribunal" regarding EI misconduct and COVID vaccinations:[2] The General Division found that Mr. Arnold had knowingly failed to comply with Purolator’s mandatory COVID-19 vaccination policy (Vaccination Policy), and concluded that he had been suspended from his job with Purolator for misconduct pursuant to subsection 30(1) of the Employment Insurance Act, S.C. 1996, c. 23 (EI Act). As a result, Mr. Arnold was disqualified from receiving Employment Insurance benefits.
[3] On appeal from the General Division, the Appeal Division similarly concluded that Mr. Arnold’s deliberate violation of the Vaccination Policy constituted misconduct within the meaning of the EI Act, citing Canada (Attorney General) v. Bellavance, 2005 FCA 87 and Canada (Attorney General) v. Gagnon, 2002 FCA 460; see also Mishibinijima v. Canada (Attorney General), 2007 FCA 36 at para. 14, leave to appeal to SCC refused, 31967 (27 September 2007); Zagol v. Canada (Attorney General), 2025 FCA 40 at paras. 6-27, leave to appeal to SCC refused, 41765 (9 October 2025) (Zagol).
[4] The Appeal Division made the following observations, a number of which reflect arguments that were before the Appeal Division and that Mr. Arnold relies on in support of this application:Misconduct for purposes of the EI Act does not imply that the conduct in question was the result of wrongful intent; it is sufficient that the misconduct be conscious, deliberate or intentional (paragraph 20 of the Decision).
The General Division’s role was to assess (i) whether Mr. Arnold was guilty of misconduct, and (ii) whether that misconduct led to his dismissal (paragraph 21 of the Decision).
It was not for the General Division to focus on the conduct of the employer or to consider whether the Vaccination Policy was reasonable or whether the imposition of the Vaccination Policy violated the employment law relationship because those concerns fall outside of EI law; the General Division had to focus on Mr. Arnold’s conduct (paragraphs 34, 36, 37 of the Decision).
Any question of accommodation, violation by Purolator of the law or the collective bargaining agreement in imposing the Vaccination Policy, or any violation of Mr. Arnold’s human or constitutional rights, is a question for another forum (paragraphs 38 and 40 of the Decision). [5] We are agreed that Mr. Arnold’s application must be dismissed. The Decision was reasonable, which is the standard on which we must review it: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. The Appeal Division’s conclusions are supported by the evidentiary record, respect the statutory constraints of the EI Act and meet the Vavilov threshold for justification. Further, the Decision is consistent with the jurisprudence of this Court applying the test for misconduct for purposes of subsection 30(1) to a knowing failure to comply with an employer’s COVID-19 vaccination policy. While it is true that the facts of each case are different, Mr. Arnold has not convinced us that his case should be distinguished from the recent jurisprudence of this Court in similar circumstances: 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); Sullivan v. Canada (Attorney General), 2024 FCA 7 (Sullivan); 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); and Zagol. Mr. Arnold has not convinced us that this jurisprudence is manifestly wrong so as to permit us to depart from it: Miller v. Canada (Attorney General), 2002 FCA 370 at paras. 9-10; Feeney v. Canada (Attorney General), 2022 FCA 190 at para. 16; Comité interprofessionnel du vin de champagne v. Coors Brewing Company, 2026 FCA 2 at paras. 48-49.
[6] On appeal, Mr. Arnold maintains his argument that both the Vaccination Policy and Purolator’s conduct in imposing and enforcing the Policy were unlawful and must be addressed; in his view, to do otherwise undermines the rule of law. However, the Appeal Division reasonably concluded that these issues are beyond the scope of the SST’s mandate under the EI Act. They must be addressed by other decision makers and under different statutory regimes. As this Court has said, "“[w]ere 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”" (Sullivan at para. 6). . Gould v. Canada (Attorney General)
In Gould v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal from an EI JR, this brought against a denial of "leave to appeal the General Division’s decision" that denied the appellant "employment insurance (EI) benefits" for misconduct:[3] The relevant background facts are as follows. The misconduct that Mr. Gould was found to have committed was his refusal to submit to a drug test at the request of his employer as contemplated in his employer’s drug policy. Paragraph 15(h) of that policy provided that an employee’s refusal to submit to a drug test was considered a violation of the policy and cause for immediate termination. Mr. Gould does not dispute that the employer requested that he take a drug test and that he refused the request. He also does not dispute the content of the drug policy. Rather, he argues that his refusal to take a drug test should not have resulted in his dismissal because the request did not comply with the drug policy in certain respects, and therefore he was justified in refusing the drug test.
[4] The General Division noted that the concept of misconduct does not require that the employee do anything wrong. Instead, it focuses on whether the employee’s conduct was wilful, that is, conscious, deliberate or intentional. As noted at paragraph 27 of the General Division’s decision, "“[t]here is misconduct if the Appellant knew or should have known that his conduct could get in the way of carrying out his duties toward his employer and that there was a real possibility of being let go because of that.”" Based on this definition, the General Division was satisfied that Mr. Gould’s dismissal was for misconduct.
[5] The Appeal Division denied Mr. Gould leave to appeal on the basis that he had no reasonable chance of success in establishing a reviewable error by the General Division. For its part, the Federal Court found no reviewable error in the Appeal Division’s decision. Importantly, the Federal Court cited this Court’s decision in Sullivan v. Canada (Attorney General), 2024 FCA 7, [2024] F.C.J. No. 31 (Sullivan), which confirmed this Court’s jurisprudence to the effect that the test for misconduct focuses on the employee’s knowledge and actions and not on the employer’s behaviour. This Court stated as follows in Sullivan at paragraph 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. [6] Mr. Gould attempts to distinguish Sullivan on the basis that he does not take issue with the drug policy itself, but with the manner of its application. However, this difference cannot assist Mr. Gould because this Court’s jurisprudence (including Sullivan) applies to both scenarios. . 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. . Lance v. Canada (Attorney General)
In Lance v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed a JR, here from a finding of the Appeal Division of the Social Security Tribunal (SST) that reversed an earlier General Division decision relating to misconduct and refusing COVID vaccinations.
Here the court considers the nature of the EI Act:[7] The Employment Insurance Act governs the relationship between the unemployed person and any entitlement to benefits, not the employee’s contract of employment. The Act provides that benefits are payable only if the loss of employment is involuntary (sections 29-31). The Act itself does not define misconduct – that has been left to the Social Security Tribunal and this Court, which has held that misconduct occurs where an employee choses to engage in conduct which would impair the performance of their duties (Mishibinijima v. Canada (Attorney General) 2007 FCA 36 at para. 14).
[8] Consequently, the only question is whether the employee was aware or ought to have been aware of the employer’s policy, the consequences of failing to comply with that policy and engaged in conduct which, objectively, could lead to a loss of employment. Questions such as whether the dismissal was unfair or unjust, whether the policy was well founded, whether there were options short of dismissal and whether the policy or dismissal conformed to the collective agreement are irrelevant to the inquiry as to whether the claimant is entitled to benefits (Cecchetto v. Canada (Attorney General) 2024 FCA 102 (leave to appeal dismissed SCC number 41441, February 13, 2025), Kuk v. Canada (Attorney General) 2024 FCA 74 at paras. 8-9, Sullivan v. Canada (Attorney General) 2024 FCA 7 at para 4; Zhelkov v. Canada (Attorney General) 2023 FCA 240 at para. 3). . 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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