When the Canadian and provincial governments first announced the COVID-19 pandemic four years ago, few could have expected the myriad ways in which the legal landscape would be significantly impacted. In 2024, legal disputes of all kinds continue to work their way through various tribunals and courts.

Holding up hand to stop a COVID-19 vaccination syringe

On February 28, 2024, the Federal Court upheld the decision of the Social Security Tribunal ("SBT") to deny the Applicant, Kerry Spears ("Ms. Spears"), employment insurance benefits ("EI") as a result of misconduct related to non-compliance with her employer's COVID-19 vaccination policy.

While perhaps an unsurprising result, the Federal Court's decision provides ample clarity with respect to when one will not receive EI as a result of misconduct.

Factual background

Ms. Spears worked for the federal government of Canada for nearly 14 years. Due to the pandemic, Ms. Spears began working remotely March of 2020.

On October 6, 2021, the federal government announced a new policy for its public service: federal public servants would be required to confirm their vaccination status by October 29, 2021. Those unwilling to disclose their vaccination status or to be fully vaccinated would be placed on administrative leave without pay.

Ms. Spears did not attest to her vaccination status by October 29, 2021, nor did she seek an accommodation. On November 12, 2021, she was suspended. Ms. Spears applied for EI, but the Canada Employment Insurance Commission denied her claim because she was suspended from employment due to misconduct. The Commission's decision then went before the SBT.

The decisions of the Social Benefits Tribunal

The SBT's General Division upheld the Commission's decision, finding Ms. Spears was suspended from her job due to misconduct and was therefore rightly disentitled from receiving EI. Ms. Spears appealed to the SBT's Appeal Division.

Ultimately, the Appeal Division upheld the General Division's decision, noting that in order to constitute misconduct:

"The act complained of must have been wilful or at least of such a careless or negligent nature that one could say the employee wilfully disregarded the effect their actions would have on their performance."

Finally, Ms. Spears brought an application for judicial review before the Federal Court.

Federal Court upholds decision of commission

The sole issue before the Federal Court dealt with whether the SBT Appeal Division unreasonably denied her leave to appeal the decision of the SBT General Division. It is, at its core, an administrative law decision dealing with standard of review. However, practically, the decision also provides helpful guidance with respect to misconduct, employer policies, and the Employment Insurance Act.

Ms. Spears raised various arguments before Justice St. Louis, the most notable of which were:

  •  Misconduct cannot be the reason for her suspension if vaccination was not a condition of employment or was not included as a condition in the Collective Agreement.
  • If an employee fails to comply with a policy that is unlawful, then the employee is not committing misconduct.

The Employment Insurance Act provides at sections 29 through 33 that a claimant's lost employment is only insurable if the loss of employment is involuntary. If a claimant voluntarily leaves their job without having "just cause" for doing so, or leaves due to their own misconduct, they will not be entitled to EI. An assessment of the merits of an employer's policy is not a factor in the assessment of misconduct. Here, the evidence confirmed that the employer adopted a policy, Ms. Spears knew of the policy, Ms. Spears knew what would happen if she failed to comply with the policy, and finally chose not to comply with the policy.

Furthermore, it is no defence to misconduct to claim the policy was not a condition of employment or a part of the Collective Agreement. Policies can be valid and enforceable even if adopted after hiring, and misconduct is possible in such circumstances. Finally, the test for misconduct does not focus on the conduct of the employer. Rather, it is an assessment of whether the employee "consciously, deliberately or intentionally" violated the employer's policy. In the circumstances, Ms. Spears intentionally chose not to comply.

The Federal Court upheld the decision of the SBT's Appeal Division. Consequently, the claimant's arguments did not succeed and her appeal did not have a reasonable chance of success. The claimant, due to her misconduct, was not entitled to receive EI.

Takeaway for employers

The decision illustrates that employees will be bound to workplace policies properly introduced by their employer, and also the importance of ensuring that newly introduced workplace policies are clearly communicated to all employees, including any consequences for non-compliance. 

Employers can expect that employees comply with properly implemented workplace polices, although there may be cases where an employee is lawfully entitled to accommodation (for example, due to religious or disability reasons) in the manner of its application.

For further information on the development or enforcement of workplace policies, including continuing issues related to COVID-19 policies, or if you have any other questions, please contact a member of the Employment, Labour & Equalities Group.