The Federal Court has dismissed an application by an employee of the Canadian Food Inspection Agency (CFIA), who sought a judicial review of her suspension due to non-compliance with a workplace COVID-19 vaccination policy. In its ruling, the court upheld the Social Security Tribunal (SST) Appeal Division’s earlier decision, which denied her application for leave to appeal her suspension and subsequent denial of employment insurance benefits on the grounds of misconduct.
A.B.’s case centered on her refusal to disclose her vaccination status, a requirement under the CFIA’s mandatory vaccination policy implemented in response to federal guidelines issued by the Government of Canada. This policy, effective as of November 2021, mandated that all public service employees, including those working remotely, either attest to their vaccination status or seek an exemption based on medical, religious, or other protected grounds under the Canadian Human Rights Act.
In its judgment, the court concluded that the SST Appeal Division’s decision was reasonable and warranted no intervention. “The applicant has not shown that the Decision was unreasonable,” the court stated, affirming that the SST had adhered to the relevant legal framework and correctly applied existing jurisprudence on employee misconduct related to non-compliance with employer policies.
‘Moral objection’
A.B. argued that the SST had misapplied the concept of misconduct by failing to consider her specific circumstances and by disregarding relevant Federal Court of Appeal (FCA) decisions. She claimed the SST should have addressed her concerns regarding the impact of the policy on her rights, citing what she described as a “moral objection to the mandate” rather than any grounds protected by law. A.B. further maintained that the CFIA should have assessed her request for accommodation prior to placing her on unpaid leave.
The court, however, was not persuaded. It emphasized that the CFIA’s policy was clear on requiring vaccination status disclosure as a prerequisite for accommodation requests, noting that A.B.’s deliberate non-compliance amounted to misconduct as defined by the Employment Insurance Act. She was warned multiple times that failure to comply would result in unpaid leave, which ultimately took effect on Dec. 7, 2021, when she persisted in her refusal to fulfill the policy’s requirements.
Role is not to reconsider employer policies
In assessing the reasonableness of the SST’s ruling, the court referred to recent case law confirming that tribunals such as the SST are bound to apply federal legal precedents rather than reconsider employer policies or rule on their constitutionality. This role, the court reiterated, belongs to other forums better suited to address allegations of wrongful dismissal or human rights complaints.
The court also dismissed A.B.’s argument that the SST should have taken her Charter rights into account, pointing to decisions which clarify that the SST does not possess the jurisdiction to assess the constitutionality of employment policies or adjudicate Charter claims.
In its analysis, the court highlighted the established definition of misconduct within the Employment Insurance context, which does not require an intent to harm but simply an act of deliberate non-compliance with employer policies. “There is misconduct where the claimant knew or ought to have known that his conduct was such as to impair the performance of the duties owed to his employer and that, as a result, dismissal was a real possibility,” the court quoted from the ruling.
Compliance with employer policies
The decision also underscored that employees have a general obligation to comply with employer policies, and that such compliance extends beyond specific job functions to include adhering to workplace safety requirements, as deemed appropriate by the employer.
The court’s ruling aligns with previous judgments, including those regarding mandatory COVID-19 vaccination policies. Numerous cases have determined that failing to meet these requirements constitutes misconduct, leading to suspensions or denials of employment insurance benefits.
Ultimately, the court upheld the SST’s assessment, confirming that the tribunal had acted within its mandate. It concluded, “The Appeal Division’s analysis bears all of the requisite hallmarks of transparency, justification, and intelligibility,” and found no reviewable error in the decision.
The court dismissed A.B.’s application without costs, bringing an end to her appeal efforts on this matter. Brown remains employed by the CFIA but is no longer subject to the vaccination policy after the federal government lifted the mandate in June 2022.
For more information, see Brown v. Canada (Attorney General), 2024 FC 1544 (CanLII).
