Executive Summary: Key Legal and Evidentiary Issues

• Joseph Hickey's refusal to comply with the Bank of Canada's COVID-19 Vaccination Policy resulted in his placement on administrative leave without pay and subsequent denial of employment insurance benefits.

• The Canada Employment Insurance Commission initially found that Mr. Hickey left his job without just cause, but upon reconsideration changed the reason, concluding he was suspended for misconduct.

• Constitutional arguments under sections 2 and 7 of the Canadian Charter of Rights and Freedoms were raised but ultimately abandoned by the applicant during oral argument.

• Established jurisprudence confirms that misconduct under the EI Act requires only that the claimant knew or ought to have known their conduct would result in suspension, without requiring blameworthiness or justification of the employer's policies.

• The Appeal Division reasonably distinguished Mr. Hickey's case from the Astolfi precedent, as the employer's actions did not cast doubt on the intentionality of his conduct.

• A modest costs award of $200 was granted to the Respondent, marking the fourth time Mr. Hickey's arguments respecting his eligibility for employment benefits were considered and rejected.

Background and employment

Joseph Hickey began working for the Bank of Canada as a data scientist in June 2019. On October 6, 2021, the Bank of Canada implemented a COVID-19 Vaccination Policy. It required all employees, by November 22, 2021, to either receive the COVID-19 vaccine or provide proof of a legitimate medical, religious, or human rights-based reason for not being vaccinated.

The exemption request and its consequences

On November 12, 2021, Mr. Hickey requested an exemption from being vaccinated. He said there was no medical basis to require vaccination while he worked remotely, as he had been doing since March 2020. He also cited a number of published articles describing the risks of adverse impacts from the COVID-19 vaccine for people of his age and sex. His employer denied his request for an exemption, and Mr. Hickey was placed on administrative leave without pay. He then applied for employment insurance benefits.

The employment insurance dispute

The Canada Employment Insurance Commission denied Mr. Hickey's application for benefits, finding that he left his job without just cause. Upon reconsideration, the Commission upheld its decision but changed the reason, concluding that Mr. Hickey was suspended for misconduct. Mr. Hickey appealed to the General Division of the Social Security Tribunal and filed a Notice of Constitutional Question. He argued that sections 30(1) and 31 of the Employment Insurance Act, SC 1996, c 23 violate sections 2 and 7 of the Canadian Charter of Rights and Freedoms. He then amended his Notice of Constitutional Question to rely on the rule of law and the constitutional doctrine of vagueness to challenge the same provisions of the EI Act.

Decisions of the General Division and Appeal Division

The General Division issued an interlocutory decision concluding that the Notice of Constitutional Question did not advance valid constitutional arguments. On the merits, the General Division found that Mr. Hickey knew or ought to have known that his conduct would lead to suspension or dismissal, and therefore concluded that he was suspended for misconduct. Mr. Hickey sought leave to appeal to the Appeal Division. The Appeal Division bifurcated the proceeding and heard the appeal of the interlocutory decision before determining the application for leave to appeal on the merits. The Appeal Division dismissed the appeal of the interlocutory decision and also refused the application for leave to appeal on the merits.

The Federal Court's judicial review

Only the decision to refuse leave to appeal on the merits was before the Federal Court. The sole issue to be decided was whether the Appeal Division's decision was reasonable. The Court applied the standard of reasonableness as established in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, under which the Court will intervene only where there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility, and transparency. In oral argument, Mr. Hickey abandoned his constitutional arguments and limited his submissions to the Appeal Division's interpretation of misconduct under sections 30(1) and 31 of the EI Act. He said it was necessary for the Appeal Division to consider the risk of harm that would result from his compliance with the Vaccination Policy.

Established legal test for misconduct

The Court noted that the test for misconduct pursuant to section 30(1) of the EI Act has been addressed on many occasions in the context of non-compliance with COVID-19 vaccination policies, including in Arnold v Canada (Attorney General), 2026 FCA 41, Sullivan v Canada (Attorney General), 2024 FCA 7, Kuk v Canada (Attorney General), 2024 FCA 74, and several other decisions. The jurisprudence clearly establishes that the only relevant question is whether the claimant knew or ought to have known that their conduct would result in suspension. Misconduct under the EI Act does not require blameworthiness, and the employer's actions and policies need not be justified. As Justice David Stratas explained in Sullivan, were the applicant's submissions to be upheld, the Social Security Tribunal would become a forum to question employer policies and the validity of employment dismissals, rather than a forum to determine entitlement to social security benefits. The Court also noted that there are other forums for Mr. Hickey to pursue remedies for wrongful dismissal and human rights complaints.

Distinction from Astolfi and the ruling

The Appeal Division reasonably distinguished Mr. Hickey's case from Astolfi v Canada (Attorney General), 2020 FC 30. In that case, the applicant stopped attending work after alleging harassment by the employer, and Justice Ann Marie McDonald held that it was unreasonable for the Appeal Division to ignore the employer's actions leading to the employee's misconduct, because these were relevant in assessing whether the employee's conduct was intentional. As the General Division and Appeal Division both found, the employer's actions in Mr. Hickey's case do not cast doubt on the intentionality of his conduct. The Appeal Division followed Abdo v Canada (Attorney General), 2023 FC 1764, another case involving non-compliance with a COVID-19 vaccination policy, in which Justice Glennys McVeigh concluded that the only relevant question was whether the applicant knew that her voluntary decision not to get vaccinated might result in her termination. The Appeal Division found that Mr. Hickey knew he would be suspended for not being vaccinated after his request for an exemption was denied. The Federal Court found this was a reasonable conclusion, and consistent with binding jurisprudence, and therefore dismissed the application for judicial review. The Court awarded costs to the successful party, the Attorney General of Canada, in the amount of $200, noting that while Mr. Hickey represented himself and his arguments were presented with care and conviction, this was the fourth time his arguments respecting his eligibility for employment benefits had been considered and rejected.