Executive Summary: Key Legal and Evidentiary Issues

• Judicial review concerned whether the Social Security Tribunal Appeal Division reasonably upheld a finding that the applicant voluntarily left his employment without just cause under the Employment Insurance Act.

• Central question involved whether the applicant had reasonable alternatives to leaving, including engaging with Canada Post about available accommodations that followed his doctor’s recommendations.

• The Tribunal found no sufficient evidence of discrimination, health or safety endangerment, significant changes to wages or duties, antagonism with a supervisor, undue pressure to resign, or a toxic work environment to establish just cause.

• Procedural fairness arguments about the conduct and length of the General Division hearing, as well as allegations of racial bias and reasonable apprehension of bias, were rejected due to lack of supporting evidence.

• Charter arguments based on sections 7 and 15 were not considered because no notice of constitutional question was served as required by the Federal Courts Act.

• The application for judicial review was dismissed, and the court made no award of costs because the respondent did not seek costs.

Facts of the case

The case is an application for judicial review brought by Kola Adegoke against the Attorney General of Canada. The decision under review is that of the Appeal Division of the Social Security Tribunal of Canada, which had dismissed Mr. Adegoke’s appeal from a decision of the Tribunal’s General Division. The General Division found that he had left his job voluntarily without just cause and was therefore not entitled to employment insurance benefits. The Appeal Division also rejected his submission that the General Division had failed to give him a fair hearing.

Mr. Adegoke worked for Canada Post as a relief mail carrier. His duties involved sorting mail (20%) and making deliveries by vehicle (80%). In April 2023, while he was finishing a five-month period of authorized absence from work on medical leave and then vacation leave, his family doctor diagnosed a stress-related disorder and an eye disorder for which he had seen a retina consultant. The doctor recommended a phased return to office work commencing May 1, 2023, with no deliveries by vehicle because they caused him anxiety. He returned to work on May 1, 2023, but found that preparing items for delivery bothered his eyes and went home.

On May 8, 2023, Canada Post offered him an initial period of accommodation from May 15 to 26, 2023. He did not report to work on May 15. He explained that he wanted to get further advice from his doctor first and that he had an appointment scheduled for May 26, 2023. However, when asked in the General Division hearing why he had stayed home, he agreed that the reason was that he had already decided he did not want to go back to his employment. Canada Post wrote to him on May 15, May 25, June 12, and June 22, 2023, extending the date for him to either return to work or provide a satisfactory explanation for his absence. He did neither. He was sent a termination letter on July 6, 2023. He had already applied for Employment Insurance benefits on July 2.

Findings of the tribunal

The General Division dismissed his appeal, finding that he had voluntarily left his employment on May 15, 2023, and that he had not proven just cause under the Employment Insurance Act. It considered in turn each of the six circumstances he advanced: discrimination within the meaning of the Canadian Human Rights Act; working conditions that endangered his health and safety; significant modification in wages; significant changes in work duties; antagonism with a supervisor; undue pressure by the employer to leave; and a toxic work environment. It found there was no discrimination given the offer of accommodation; insufficient evidence that the accommodation would endanger health or safety; no evidence of significant modification of wages or work duties; no proven antagonism from a supervisor; no undue pressure to resign; and that the employer’s communications did not prove the existence of a toxic work environment.

The General Division also found that Mr. Adegoke had reasonable alternatives to quitting. It concluded that he could have responded to the opportunities Canada Post provided either to return to work on the basis of the offered accommodation, which followed his doctor’s recommendations, or to explain the reason for his absence.

The Appeal Division dismissed his appeal. It held that the General Division had erred in law by considering evidence of events that occurred after May 15, 2023, when the relevant question was whether he had a reasonable alternative to leaving as of that date. The parties had agreed that if it found such an error, the Appeal Division should give the decision that the General Division should have given. The Appeal Division adopted the General Division’s finding that he voluntarily left his employment on May 15, 2023, and its findings on the circumstances put forward to justify his decision not to go back. It found that he had at least one reasonable alternative to quitting, which he did not pursue: he had a responsibility to engage with his employer to see if there were accommodations available to address his needs. It concluded that he did not have just cause to quit and that he could have worked under the accommodation offered while he looked for a new job.

Issues and arguments before the court

Before the court, Mr. Adegoke asserted that the Appeal Division committed multiple categories of error, including failing to find a Charter breach and grant Charter remedies, denial of procedural fairness, and failure to adequately weigh the medical evidence, among other alleged errors of law. He made arguments based on sections 7 and 15 of the Charter and claimed Charter remedies, but he had not served a notice of constitutional question as required by section 57 of the Federal Courts Act. At the outset of the hearing, he was advised that the court would not entertain his Charter arguments.

The court noted that, subject to limited exceptions not applicable here, the standard of review for the substance of an Appeal Division decision is reasonableness, citing Greening v. Canada (Attorney General) and Canada (Minister of Citizenship and Immigration) v. Vavilov. It described a reasonable decision as one based on an internally coherent and rational chain of analysis and justified in relation to the facts and law that constrain the decision maker. It also stated that matters of procedural fairness, such as bias, are reviewed on a standard equivalent to correctness, focusing on whether a fair and just process was followed having regard to all of the circumstances.

Procedural fairness and bias analysis

Mr. Adegoke’s unfair hearing submission had three main components: that the Tribunal member who wrote the Appeal Division decision was not the member who conducted the hearing; that the General Division hearing was oppressive and unfair; and that the Tribunal was racially biased, including a reasonable apprehension of bias.
On the first point, the court found the allegation puzzling and noted there was no evidence to support it. It observed that he appeared to be confused as to who was who in the proceedings below, including his consistent and mistaken references to the member who granted leave to appeal.

As for the General Division hearing, he complained that it was set down for one hour but took three, and that during the hearing he was subjected to adversarial questioning akin to a criminal investigation. The court listened to the recording. It found that the Tribunal member informed him at the outset that the hearing was scheduled for an hour but might take more time given the complexity and number of documents. The hearing ended up taking approximately two hours and 15 minutes. Much of it consisted of the Tribunal member asking questions to ensure all relevant evidence he had to offer was elicited, and his responses. At the conclusion of the hearing, when the member asked if there was anything he wanted to add that he had not yet said, he replied that they had been able to cover everything possible to present his case. The court concluded there was no unfairness in the conduct of the hearing.

On racial bias and apprehension of bias, Mr. Adegoke alleged that, as a Black individual, racial bias influenced the Tribunal’s decision-making process and that the Tribunal was composed entirely of white members, raising concerns of racial bias when decisions appeared to be made without considering his unique circumstances. The court referred to earlier authority stating that an allegation of bias against a tribunal is a serious allegation that cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions. It held that he did not come close to meeting the evidentiary threshold to establish apprehended bias, let alone actual bias.

Just cause, medical evidence, and post-employment events

The court addressed his submission that the Appeal Division failed to adequately weigh medical evidence supporting disability and workplace accommodation. It stated that it is no part of the court’s function on judicial review to reweigh the evidence considered by the decision maker and substitute its own findings, citing Petruska v. International Association of Machinists and Aerospace Workers.

He also submitted that the Tribunal erred in law by relying on evidence of events after he stopped working to determine that he lacked just cause to leave his job with Canada Post. The court noted that the Appeal Division had already found an error of law on that point and, as the parties had agreed, had given the decision the General Division should have given. The court accepted that this is what occurred.

Ruling and outcome of the case

The court applied the reasonableness and procedural fairness standards, declined to consider the Charter arguments because no notice of constitutional question had been served, and refused to reweigh the medical and other evidence. It dismissed the application for judicial review. The respondent did not seek costs, and the court made no award of costs.