The Federal Court has dismissed an application for judicial review by a former senior executive at British Columbia Interior Health who was terminated for refusing to comply with his employer’s COVID-19 vaccination policy and subsequently denied Employment Insurance (EI) benefits.
D.S., a religious individual and father of seven, lost his job after declining to receive a COVID-19 vaccine, citing his sincerely held religious beliefs. He requested a religious exemption from Interior Health’s vaccination policy, but his request was denied because the Provincial Health Officer (PHO) order only allowed medical exemptions.
After his termination, D.S. applied for EI benefits, but the Canada Employment Insurance Commission denied his application on the grounds that he lost his employment due to misconduct. Misconduct, in this context, refers to a “deliberate and knowing failure to comply with an employer’s vaccination policy when he knew that doing so could result in his termination.”
D.S. appealed the decision to the Social Security Tribunal – General Division (SST-GD), which dismissed his appeal. He then sought leave to appeal to the Social Security Tribunal – Appeal Division (SST-AD), which also denied his application.
Freedom of religion claim
In his application for judicial review, D.S. argued that decision-makers at every level failed to address his freedom of religion claim, contrary to relevant jurisprudence from the Supreme Court of Canada. He contended that he was unable, rather than unwilling, to comply with the vaccination policy due to his religious beliefs, which are protected under the Canadian Charter of Rights and Freedoms. D.S. submitted that the concept of misconduct in employment insurance law must evolve to take into account Charter values.
The Attorney General of Canada responded that the decision was reasonable because D.S. did not raise his Charter claim in his appeal to the SST-GD or his request for leave before the SST-AD. Given the limited jurisdiction of these administrative decision-makers, the Attorney General argued that the Appeal Division’s decision was reasonable.
Justice William F. Pentney dismissed the application for judicial review, stating that the Appeal Division was not required to consider the Charter claim since D.S. did not raise it in his appeal materials. “In the circumstances, the Appeal Division was not required to consider, on its own, whether the definition of misconduct needed to be re-examined in light of the Charter,” the judge wrote.
Furthermore, the Court held that D.S.’s other arguments about the validity of his employer’s policy fell outside the mandate of the Appeal Division. “The focus of the SST-GD and SST-AD is on the conduct of the employee seeking EI benefits, not on the justification for the employer’s policy or its compliance with the Charter,” Justice Pentney noted.
Background
D.S. began working for Interior Health as a senior executive in May 2007. During the COVID-19 pandemic, he worked remotely full-time. In October 2021, the British Columbia PHO issued an order requiring all health care workers to be vaccinated against COVID-19. Interior Health implemented a policy in compliance with the PHO order, requiring all employees to be vaccinated by Nov. 15, 2021, with only medical exemptions permitted.
On Oct. 24, 2021, D.S. requested accommodation on the basis of his religious beliefs. He stated that his “religious belief system interferes with and prevents [him] from taking experimental and/or genetic altering vaccines such as the COVID-19 mRNA therapy treatments.” He offered to follow necessary safety protocols, including wearing masks, handwashing, and performing rapid tests if required.
Interior Health denied his request, stating it did not have the authority to grant exemptions under the PHO order except on medical grounds. D.S. was placed on unpaid leave on October 26, 2021, and his employment was terminated on November 16, 2021.
Legal proceedings
After being denied EI benefits, D.S. appealed to the SST-GD, arguing that his actions did not amount to misconduct and that his employer’s policy violated his Charter rights. The SST-GD dismissed his appeal, finding that he had engaged in misconduct by wilfully choosing not to comply with the policy, knowing it could result in his dismissal.
The SST-GD stated that its role was not to assess the employer’s behaviour or policies but to focus on what D.S. did or failed to do and whether that amounted to misconduct under the Employment Insurance Act (“EI Act”). The tribunal also noted that while it could consider whether a section of the EI Act infringed Charter rights, D.S. was challenging his employer’s policy, not the EI Act itself.
D.S. then applied to the SST-AD for leave to appeal, alleging procedural fairness issues. He argued that he was treated unfairly because the Commission did not attend the hearing or provide information he requested about how it handled other similar EI claims. He also contended that the SST-GD acted unfairly by refusing to accept a late submission of an application for judicial review filed in another case.
The SST-AD denied his application for leave to appeal, concluding that he had not demonstrated an arguable case that the SST-GD failed to observe a principle of natural justice or otherwise acted beyond its jurisdiction.
Federal Court decision
In dismissing the application for judicial review, Justice Pentney found that D.S. did not advance a Charter claim in his appeal submissions to the SST-AD and that the tribunal was not required to consider an argument not put before it. “Under long-accepted case law, a party cannot raise new arguments on judicial review as a basis for finding a decision to be unreasonable subject to very limited exceptions, none of which apply here,” the judge stated.
Justice Pentney also emphasized that the Social Security Tribunal’s mandate is limited to determining entitlement to EI benefits, not adjudicating the validity of employer policies or allegations of wrongful dismissal. “There is recent, abundant and unanimous case law of this Court, as well as the Court of Appeal, confirming the specific and narrow role played by the SST-GD and SST-AD in the legislative scheme,” he wrote.
The Court acknowledged D.S.’s sincere and thoughtful arguments but concluded that the binding jurisprudence required dismissal of his application. “(D.S.) ably advanced his arguments before this Court, in both written and oral submissions. However, despite his sincere and thoughtful arguments, the binding jurisprudence requires that I find against him,” Justice Pentney concluded.
No costs were awarded, and each party was ordered to bear its own costs.
For more information, see Sturgeon v. Canada (Attorney General), 2024 FC 1888 (CanLII).
