The federal court has dismissed a request for judicial review by a letter carrier employed by Canada Post after the Social Security Tribunal (SST) Appeal Division (AD) refused to allow him to appeal an earlier finding that he was not entitled to Employment Insurance (EI) benefits.
The court’s decision underscores the narrow jurisdiction of EI adjudicators when it comes to determining whether an employer’s policy amounts to “misconduct” under the Employment Insurance Act.
The carrier, M.D., had argued that his suspension from work, prompted by his refusal to disclose his vaccination status, should not disqualify him from receiving EI benefits. However, both the SST’s General Division (GD) and AD, and subsequently the court on review, concluded that his failure to abide by the employer’s mandatory COVID-19 vaccination policy constituted misconduct as defined by the Act.
In denying M.D.’s judicial review, the court noted that the AD’s decision was reasonable and transparent in applying its limited statutory authority. While M.D. contended that the Social Security Tribunal should have considered broader legal and contractual issues — such as the reasonableness of Canada Post’s policy, alleged violations of the Canadian Charter of Rights and Freedoms, and terms of his collective agreement — the court emphasized that the Tribunal is not empowered to assess the fairness or legality of an employer’s workplace rules. Instead, the court said the Tribunal’s task is confined to determining whether there was “misconduct” for EI purposes.
“Here, as in Cecchetto, the only questions that matter are whether the Claimant breached his employer’s vaccination policy and, if so, whether that breach was deliberate and foreseeably likely to result in dismissal. In this case, the General Division had good reason to answer ‘yes’ to both questions,” the AD stated in its reasons, as cited by the court.
Background
According to the court’s reasons, M.D. had been employed with Canada Post since 1994 and was covered by a collective agreement through his union. When Canada Post implemented a mandatory COVID-19 vaccination policy requiring employees to attest to their vaccination status, M.D. declined to do so, asserting he had no contractual or legal duty to disclose his personal health information.
He was ultimately suspended, with Canada Post listing the cause on his Record of Employment (ROE) as a leave of absence.
When M.D. applied for EI benefits, the Commission found he was disqualified because his suspension amounted to misconduct under the Employment Insurance Act. M.D. appealed that determination to the GD, which concluded his refusal to disclose vaccination status, despite repeated notices and warnings, was wilful. The GD stated:
“The employer made it clear that it expected the Claimant to attest to his vaccination status. … The Claimant refused to tell the employer his vaccination status. He was told that if he didn’t attest to his vaccination status that he could be put off work … I find the evidence supports that the Claimant was suspended from work because he chose not to disclose his vaccination status, as required by the employer’s vaccination practice.”
Appeal division reasoning
On further appeal, M.D. asked the AD to overturn the GD’s ruling. Among other arguments, he asserted that the GD had shown bias by accepting the Commission’s version of events, downplayed the relevance of his collective agreement, and failed to properly consider legal protections under the Canadian Human Rights Act and the Charter.
The AD denied leave to appeal, concluding that M.D. had not shown any grounds under subsection 58(1) of the Department of Employment and Social Development Act that could result in a reasonable chance of success. That section limits appeals to errors involving natural justice, jurisdiction, errors of law, or erroneous findings of fact made in a perverse or capricious manner.
The AD also pointed out that tribunals handling EI disputes have a narrow focus:
“These paragraphs accurately summarize the law around misconduct. The courts have consistently held that decision-makers tasked with assessing misconduct under the Employment Insurance Act (EI Act) do not have the authority to decide whether an employer’s policies are reasonable, justifiable, or even legal.”
Since M.D. did not dispute that his refusal to disclose his vaccination status ran contrary to his employer’s policy — and that he understood the potential consequence was suspension — both the GD and the AD determined this amounted to misconduct under the Act.
Legal arguments and the court’s review
In seeking judicial review, M.D. reiterated his view that the Commission’s finding and the GD’s ruling were flawed, primarily on the basis that Canada Post’s policy did not appear in the collective agreement. He contended that the employer had improperly altered his conditions of employment, leading to a wrongful suspension.
The court, however, upheld the AD’s reasoning. In referencing Mishibinijima v Canada (Attorney General), 2007 FCA 36, the court emphasized that “misconduct” in the EI context arises 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.” Here, the AD accepted the GD’s finding that M.D. made a deliberate choice and was aware of the risk of suspension.
M.D. also pointed to another SST General Division decision, identified as AL, which he said supported his position. However, the court cited the AD’s conclusion that AL was factually distinct and was overturned on further appeal. According to the court, the AD was not obliged to follow that particular decision when facts and reasoning differed.
Allegations of bias
M.D. further alleged that the AD erred in dismissing his claims of bias. He argued that the GD took the Commission’s version of events at face value, even though the Commission did not appear at his hearing to answer questions.
In supporting the AD’s conclusion, the court stressed that bias requires evidence of a closed mind or predisposition. The Commission was entitled to submit written arguments rather than attend the hearing in person. The AD found:
“An allegation of bias cannot rest on mere suspicion, pure conjecture, insinuations, or mere impressions. … Contrary to the Claimant’s allegations, the General Division did not ignore his submissions but engaged with them at some length in its decision.”
Having found no evidence of bias or other errors of law, the court ruled that M.D.’s claim did not meet any threshold to overturn the AD’s decision.
For more information, see Daggett v. Canada (Attorney General), 2025 FC 114 (CanLII).
