Refusal to follow a mandatory vaccination policy disentitles employee to Employment Insurance benefits

An employee who refused to follow his employer’s mandatory vaccination policy was not entitled to Employment Insurance benefits. The Social Security Tribunal has a limited legislated focus on the employee’s entitlement to benefits and not on the employer’s policies.

Administrative law – Decisions reviewed – Social Security Tribunal – Judicial review – Compliance with legislation – Standard of review – Reasonableness – Government – Health insurance

Sturgeon v. Canada (Attorney General), [2024] F.C.J. No. 2308, Federal Court, November 25, 2024, W.F. Pentney J.

The applicant, Mr. Sturgeon, lost his job at B.C. Interior Health because he refused to comply with their mandatory COVID-19 vaccination policy. The applicant, a deeply religious man, refused to obtain the vaccination because he felt it was against his religion. Interior Health declined to grant Mr. Sturgeon a religious exemption from the policy because the provincial health order which informed their vaccination policy only allowed medical exemptions.

Mr. Sturgeon applied to the Canadian Employment Insurance Commission (“the Commission”) for Employment Insurance benefits (“EI”). Pursuant to the Employment Insurance Act, SC 1996 c 23, an applicant is not entitled to benefits when they are terminated due to “misconduct”. Mr. Sturgeon was found to have lost his job due to “misconduct” when he deliberately failed to comply with the vaccination policy knowing that it could result in his termination. His application for EI was denied.

Mr. Sturgeon’s appeal to the Social Security Tribunal – General Division (“SST-GD”) was denied and the Social Security Tribunal – Appeal Division (“Appeal Division”) declined to grant him leave to appeal. 

Mr. Sturgeon applied to the Federal Court for judicial review, arguing that the Commission’s decision to deny him EI infringed his freedom of religion, which is protected under the Charter. He further argued that the concept of “misconduct” in the legislation must evolve to consider Charter values.

The Court noted that Mr. Sturgeon’s argument that the Commission had violated his Charter right was not raised before the Tribunal. Rather, his argument at the Tribunal had focused on why his conduct did not amount to misconduct, that his employer’s vaccination policy was contrary to his Charter right, and that he was denied procedural fairness. He did not argue that the Commission’s decision to deny him EI infringed his right to religious freedom. This was a new argument that could not be heard for the first time during an application for judicial review.

The Court noted that the SST-GD and Appeal Division have a limited role within the legislative scheme. Their focus is on the conduct of the employee seeking EI, not on the justification for doing so, or the validity and legality of an employer’s policies. Mr. Sturgeon’s argument could not succeed because the questions it raised fell outside of the mandate of the Tribunal.

Mr. Sturgeon also argued that, even if he failed to raise the Charter issue at the Tribunal, the SST-GD and Appeal Division were required to consider whether misconduct as defined in the legislation infringed his Charter rights. He relied on Sullivan v. Canada (Attorney General), 2024 FCA 7. In that case, the Federal Court of Appeal said, “the Supreme Court [in Commission scolaire francophone des Territories du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31] 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.”

However, the Court noted that the denial of EI benefits does not implicate or trigger any particular Charter right or value. The Commission scolaire held that the obligation to consider Charter values is only raised in some circumstances. The Court found it would be unrealistic to impose a burden on administrative decision makers to consider every conceivable Charter right or value implicated in its decision.

The Court held that the Appeal Division’s decision was not unreasonable and Mr. Sturgeon’s application for judicial review was dismissed.

This case was digested by Rachel Wood of Harper Grey LLP and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please feel free to contact her directly at [email protected].