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Federal Court of Appeal upholds denial of EI benefits to airport screener for misconduct over employer’s vaccine policy

by HR Law Canada

The Federal Court of Appeal has upheld the decision to deny employment insurance benefits to a screening officer at Toronto’s Pearson International Airport who was suspended for not disclosing his vaccination status.

The judgment, delivered by Justice Woods, affirmed the decisions of both the General Division and the Appeal Division of the Social Security Tribunal.


A.K., who worked for GardaWorld, was suspended in 2021 after he failed to comply with his employer’s COVID-19 policy. Under section 31 of the Employment Insurance Act, benefits are not payable during a suspension due to misconduct.

The General Division of the Social Security Tribunal initially denied A.K.’s benefits in March 2023, concluding his actions were deliberate and constituted misconduct. The Appeal Division upheld this decision in August 2023, stating that the General Division correctly applied the test for misconduct and was not required to consider the collective bargaining agreement or the imposition of new employment conditions.

In his application for judicial review, A.K. argued his conduct did not constitute misconduct because it was not deliberate and the vaccination policy did not affect his job performance. The Court found these arguments were not raised before the Appeal Division and could not be considered on judicial review.

Charter protections?

A.K. also claimed the Appeal Division failed to consider Charter protections. However, the Court noted that the Social Security Tribunal did not have the authority to assess the constitutionality of the vaccination policy, citing Sullivan v. Canada (Attorney General), 2024 FCA 7, where it was established that “Charter values cannot be used to invalidate legislative provisions that administrative decision-makers must follow.”

Moreover, the Appeal Division found A.K. had not provided sufficient detail for his constitutional arguments, a requirement highlighted in Sullivan. The Court concluded that the Appeal Division’s approach to these constitutional arguments was reasonable.

Invalid policy?

Further, A.K.’s argument that the vaccination policy was invalid under employment law was rejected. The Court agreed with the Appeal Division that issues of wrongful dismissal were not pertinent to determining misconduct under the Employment Insurance Act, supported by Karelia v. Canada (Human Resources and Skills Development), 2012 FCA 140.

A.K.’s contention that the common law test for misconduct should evolve was also dismissed, as it was not relevant to the reasonableness review of the judicial review process, per Francis v. Canada (Attorney General), 2023 FCA 217.

Ultimately, the Court found no grounds to interfere with the Appeal Division’s decision, dismissing the application without costs.

Key takeaways

  1. Misconduct and Employment Insurance: Suspension due to non-compliance with an employer’s COVID-19 vaccination policy can be deemed misconduct, disqualifying the claimant from employment insurance benefits.
  2. Jurisdictional Limits: Administrative tribunals, like the Social Security Tribunal, do not have the authority to assess the constitutionality of legislative provisions they must follow.
  3. Requirement for Detailed Constitutional Arguments: Claims involving Charter rights must be substantiated with detailed evidence and arguments to be considered valid in judicial reviews.

For more information, see Khodykin v. Canada (Attorney General), 2024 FCA 96 (CanLII).

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