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Wrongful Dismissal




Federal Court Finds Employees Who Refuse to Follow Vaccination Mandate Not Eligible for Employment Insurance

Practice Areas: Wrongful Dismissal

Recently, the Federal Court (the “Court”) released an encouraging decision for employers as they continue to deal with residual COVID-19 workplace issues. In Cecchetto v Canada (Attorney General), 2023 FC 102 (CanLii) the Court considered whether a decision from the Appeal Division of the Social Security Tribunal (“SST”) denying the Applicant Employment Insurance (EI) was reasonable.


The applicant was a former employee of Lakeridge Health in Ontario. He had been employed with the hospital since 2017 but was suspended from his employment, and later terminated, because he failed to comply with the employer’s policy regarding COVID-19 vaccinations and testing. The employer did not have a personalized vaccination policy but followed the rules set out in the Directive issued by Ontario’s Chief Medical Officer of Health. The Applicant participated in an education session regarding vaccines, pursuant to the Directive, but did not get vaccinated or provide antigen test results as he was required to do by the provisions. As a result, he was put on unpaid leave and then dismissed from his employment.

The Applicant applied for Employment Insurance (“EI”) but the Canada Employment Insurance Commission (the “Commission”) denied his application, finding that the Applicant had lost his job due to misconduct. The Applicant asked for reconsideration, but the Commission did not change its decision. Next, the Applicant appealed the Commission’s decision to the SST which considered two main issues: why the Applicant had been terminated and whether the reason for termination amounted to misconduct. Based on evidence offered by the former employer, the STT found that the Applicant was aware that a refusal to follow the directive would result in job loss, yet he was unwilling to be vaccinated and would not submit antigen test results. Therefore, the SST found the applicant engaged misconduct which disentitled him to EI.

The Applicant then sought leave to appeal the SST’s decision but was denied by the Appeal Division. The Appeal Division noted that in assessing whether to grant leave to appeal its role is not to evaluate whether the employer’s decision to dismiss the employee was valid but to determine whether the Applicant was guilty of misconduct and whether that misconduct led to his dismissal. As the Applicant’s refusal to follow the Directive was willful and his refusal to comply was the reason for his dismissal, the Appeal Division found that the Applicant had not demonstrated that his appeal had a reasonable chance of success. In the context of EI eligibility employees do not have to act with malicious intent in order for an action to be characterized as misconduct. To be considered misconduct the actions only must be performed consciously, deliberately, or intentionally.

The Applicant then sought judicial review of the Appeal Division’s denial to grant leave to appeal. In the written submissions the Applicant made several claims, including that he was discriminated against for his “personal medical choices”; that vaccines are being forced on people despite not yet completing safety and efficacy trials; and that alternative exemptions for completing an education course or having natural immunity are ignored.

The Decision

The Court immediately noted the Applicant’s frustration that none of the decision-makers have addressed what he sees as the fundamental issues, some of those being the importance of bodily integrity or consent to medical testing. However, as noted by the Court, the previous decisions were not unreasonable for not addressing those issues. The lower decisions only had the jurisdiction to decide on whether or not he was terminated for misconduct, not whether that misconduct was justified.

The Court noted that the Appeal Division found that the SST made two central determinations: 1. the Applicant had been dismissed from his employment because he knowingly failed to follow the Directive: and, 2. his dismissal was due to his “misconduct,” as that term has been interpreted for EI eligibility. The SST had noted that the Applicant admitted he heard about the consequences of non-compliance and received repeated notification of the declaration verbally and over email. The Applicant had several opportunities to remedy his behavior but did not do so. The Court concluded that the SST reasonably determined that the Applicant had committed misconduct.

In his arguments the Applicant also pointed to AL v Canada Employment Insurance Commission, 2022 SST 1428  a recent decision from the SST that found that an employee’s failure to comply with the employer’s vaccination policy was not considered misconduct for the purposes of EI eligibility. The Court was not persuaded by the previous case as it involved a fundamentally different factual foundation. One notable difference being that in AL the employer’s vaccination policy did not allow for any exemptions or alternatives. In contrast, the Directive did offer exemptions, such as submitting to antigen testing, however the Applicant refused to take advantage of them. The Court concluded that the decision did not support his claim and did not establish a blanket rule that violation of vaccination policies does not amount to misconduct. Based on the foregoing, the application for judicial review was dismissed.

Employer Takeaways

While employers are moving on from COVID-19 they are not quite done dealing with the effects the pandemic had on the workplace. It is currently unclear how much this decision will impact cases regarding wrongful dismissal claims, but it is still an encouraging decision nonetheless. The case signals that Judges and Tribunals generally do not support employees flagrantly refusing to comply with vaccine policies. Even though many employers no longer have a vaccine policy, this case is still reassuring as employers continue to deal with legal proceedings that arise from their past or current vaccination policies.

If you have questions about the effect of this decision on your business, concerns about your business or have any other questions about other employment issues, the lawyers at CCPartners are available to assist.

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