Executive Summary: Key Legal and Evidentiary Issues

• Darold Sturgeon was terminated from British Columbia Interior Health for refusing a mandatory COVID-19 vaccine required by a Provincial Health Officer Order

• Employment Insurance benefits were denied by the Commission on the grounds that he had lost his employment "due to his own misconduct" in not complying with his employer's policy

• Religious freedom and bodily autonomy arguments under the Canadian Charter of Rights and Freedoms were raised but fell outside the Social Security Tribunal's jurisdiction to adjudicate

• The Appeal Division refused leave to appeal, finding no reasonable chance of success on procedural fairness grounds

• Charter arguments were not properly preserved at the Appeal Division level, precluding their consideration on judicial review

• The Federal Court of Appeal dismissed the appeal without costs, affirming that the Appeal Division's decision was reasonable

Background and employment termination

Darold Sturgeon was employed at British Columbia Interior Health ("Interior Health") when an Order was issued by the Provincial Health Officer requiring all health workers to receive a COVID-19 vaccination. Mr. Sturgeon was required by Interior Health to receive the vaccine by November 15, 2021. He refused to get vaccinated. His request for accommodation on the basis of his sincerely held religious beliefs was refused, and he was terminated on November 16, 2021, after having been placed on unpaid leave.

Denial of Employment Insurance benefits

Following his termination, Mr. Sturgeon applied for Employment Insurance ("EI") benefits. On May 11, 2022, the Canada Employment Insurance Commission (the "Commission") denied his application on the basis that he had lost his employment "due to his own misconduct" in not complying with his employer's policy. His application for reconsideration was similarly dismissed.

Proceedings before the Social Security Tribunal — General Division

Mr. Sturgeon appealed the denial of benefits to the Social Security Tribunal — General Division (the "General Division"). He argued that the burden for misconduct is high, that his single act of not consenting to receiving COVID-19 vaccines had no impact on his ability to carry out his duties, that he had personal safety concerns and sincerely held religious beliefs that should have been considered by the employer in the enforcement of its policy, and that the vaccination policy was not in place when he was hired. The General Division, relying on the case law including Mishibinijima v. Canada (Attorney General), 2007 FCA 36, determined that "misconduct" under subsection 30(1) of the Employment Insurance Act, S.C. 1996, c. 23 (the "Act") refers to any conduct the claimant knew or ought to have known could get in the way of carrying out their duties toward their employer, and that there was a real possibility of being let go because of that. The focus of the inquiry must be the act or omission of the employee, not on whether the employer's policy is reasonable or fair. The General Division concluded that Mr. Sturgeon knew about the vaccination policy, and that his choice to not get vaccinated was conscious, deliberate, and intentional. Not being in compliance with his employer's policy, he could not go to work and carry out his duties, and that is misconduct. On the Charter arguments, the General Division held that it was beyond its jurisdiction to consider whether an action taken by an employer violates the Charter or human rights legislation, and directed Mr. Sturgeon to a different court or tribunal to address those types of issues.

Appeal Division refusal of leave to appeal

Mr. Sturgeon sought leave to appeal before the Social Security Tribunal — Appeal Division (the "Appeal Division"), on the basis that he had been denied procedural fairness and that the General Division had erred in not accepting his post-hearing submissions containing a Notice of Application for judicial review in an unrelated matter. On July 14, 2023, the Appeal Division refused leave to appeal because Mr. Sturgeon's appeal had no reasonable chance of success. In its view, Mr. Sturgeon's right to procedural fairness was not infringed, and he could not succeed in arguing that the General Division erred because it did not accept his post-hearing submissions. Since Mr. Sturgeon had not identified any errors upon which the appeal might succeed, leave to appeal was refused.

Federal Court judicial review

On judicial review before the Federal Court, the main issue was whether the Social Security Tribunal (both at the General Division and at the Appeal Division) was required to apply Charter values in interpreting the concept of "misconduct" in the Act. Applying the standard of reasonableness, the Federal Court found that the Appeal Division had not erred in denying leave to appeal. On the basis of the extensive case law with respect to the denial of EI benefits for failure to comply with an employer's COVID-19 policies, the Court stressed the narrow role played by the Social Security Tribunal in those matters, and reiterated that the focus must be the conduct of the employee and not the justification for the employer's policy or its compliance with the Charter.

Federal Court of Appeal decision and outcome

Before the Federal Court of Appeal, Mr. Sturgeon argued that there is a crucial distinction between his case and the other case law, because he is not seeking to challenge the employer's policy but rather the failure of both divisions of the Social Security Tribunal to interpret the concept of "misconduct" in light of the freedom of religion guaranteed by paragraph 2(a) of the Charter. The Court of Appeal, comprising Chief Justice de Montigny, Justice Roussel, and Justice Pamel, was not persuaded. The Court confirmed that reasonableness was the correct standard of review, as it did in many other cases concerning EI benefits, misconduct, and vaccination policies even when Charter values are engaged. The Court found that neither the Appeal Division nor the Federal Court erred by declining to consider the appellant's Charter arguments. Mr. Sturgeon did not advance any Charter claim in his appeal submissions to the Appeal Division, focusing instead on procedural fairness arguments. Neither the form completed by Mr. Sturgeon to launch his appeal to the Appeal Division nor his written submissions on the appeal mentioned the Charter arguments he had presented to the General Division, or asked the Appeal Division to reconsider the interpretation of the term misconduct. The Court held that it is too late, on judicial review, to raise new arguments that were not raised before the administrative tribunal. The Court further noted that even before the General Division, Mr. Sturgeon's argument was rather aimed at the validity of the employer's policies, not at the interpretation of the Act itself. The Court emphasized that Mr. Sturgeon had the opportunity to put forward his Charter argument by filing a Notice of Constitutional Question and initiating the Social Security Tribunal's Charter appeal process, or at least by raising it in his application to the Appeal Division, but he did not. It was not for the Appeal Division to do it on his behalf or, to use the language used by the Federal Court, "to conjure up every conceivable Charter right or value that might be affected by their decision." The Federal Court of Appeal ultimately dismissed the appeal without costs, with the Attorney General of Canada as the successful respondent. No specific monetary award was at issue in this matter, as the case concerned the denial of Employment Insurance benefits based on misconduct.