An unvaccinated worker who lost his job for misconduct, and was denied Employment Insurance (EI) benefits as a result, appealed the ruling partially because he argued the decision-maker was biased.
The claimant pointed to public statements made by the federal Minister of Employment, Workforce Development, and Disability, on Oct. 21, 2021, as evidence of potential bias.
“I justifiably wonder if the (public statements)… prevent me from my right to an impartial (unbiased) decision-maker,” he said.
The exact statements by the Minister weren’t included in the ruling. But on the same date, Carla Qualtrough, who was serving in the position, was quoted by CBC stating that individuals who lost their jobs due to non-compliance with COVID-19 vaccine policies were likely to be ineligible for Employment Insurance
“It’s a condition of employment that hasn’t been met,” Qualtrough said in an interview with CBC’s Power & Politics. “And the employer choosing to terminate someone for that reason would make that person ineligible for EI. I can tell you that’s the advice I’m getting, and that’s the advice I’ll move forward with.”
Tribunal reaffirms its independence
The claimant suggested there is a relationship between the Social Security Tribunal and the Minister. But it is an independent administrative tribunal, the Social Security Tribunal of Canada Appeal Division said in its ruling.
“Members of both the General Division and the Appeal Division are fully independent and impartial decision-makers,” it said. “Members do not work for or report to the Department or to the Minister.”
It noted that members independently come to their own decisions, “without any influence from the Minister, other politicians, the Commission, Employment and Social Development Canada, the Chairperson or any Vice-Chairpersons of the Tribunal, the Tribunal’s Legal Services team, or even other Tribunal members.”
Bias allegations are serious
It noted that allegations of bias are serious and should not me made lightly, and the threshold for meeting the test is high.
“As the courts have said, ‘An allegation of bias requires material evidence in support and cannot be made on mere suspicion, conjecture, or impression of an applicant.’ Merely pointing to the Minister’s statements and suggesting that the Minister somehow influenced the General Division member and the outcome is speculative,” it said. “There is no evidentiary support for the Claimant’s allegations of bias to meet this test.”
Employers can introduce new policies
It also rejected the claimant’s argument that his employer was not allowed to change the terms and conditions of his employment by introducing new policies.
“An employer may introduce new policies. Those policies do not have to be part of the employment contract for misconduct to arise,” the appeal tribunal said.
It dismissed the appeal.
For more information, see JW v Canada Employment Insurance Commission, 2023 SST 1695 (CanLII).
