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EI - Misconduct (2). 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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