Simon's Megalomaniacal Legal Resources

EI - Misconduct (2)

. 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].

....

[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.