Executive Summary: Key Legal and Evidentiary Issues

• Judicial review focused on whether the Social Security Tribunal Appeal Division (SST-AD) reasonably denied leave to appeal a misconduct ruling.

• Central legal question involved the interpretation of “misconduct” under section 30 of the Employment Insurance Act.

• The applicant failed to comply with a mandatory COVID-19 vaccination policy and was terminated by the employer.

• SST-GD concluded the applicant's failure to disclose vaccination status constituted wilful non-compliance.

• SST-AD held that no reviewable legal or factual error existed to justify granting leave to appeal.

• The Federal Court found that the SST-AD’s decision was reasonable and upheld it, dismissing the application.

Facts and outcome of the case

Background and termination

Adina Butu was employed by the Toronto Public Library (TPL) as a clerk/caretaker. In 2021, TPL introduced a COVID-19 vaccination policy requiring all employees to disclose their vaccination status by September 20 and be fully vaccinated or obtain an exemption by October 30. Ms. Butu did not disclose her status and was suspended without pay on November 1, 2021. She later submitted a religious accommodation request, but TPL claimed it never received it. Her employment was terminated on January 2, 2022.

Claim for employment insurance and tribunal decisions

Ms. Butu applied for employment insurance (EI) benefits. The Canada Employment Insurance Commission denied her claim, citing misconduct under section 30 of the Employment Insurance Act. She appealed to the Social Security Tribunal – General Division (SST-GD), which upheld the Commission’s decision, finding that her failure to comply with the policy was deliberate and amounted to misconduct.

The SST-GD emphasized that employers have the right to enforce workplace policies and that Ms. Butu had received multiple warnings about the consequences of non-compliance. It held that she was aware her job was at risk and failed to act accordingly.

Ms. Butu then sought leave to appeal to the Social Security Tribunal – Appeal Division (SST-AD), arguing errors of fact and law, including that she attempted to comply by seeking accommodation and that the policy was not part of her employment contract. The SST-AD rejected her request, finding no arguable case under the statutory grounds required for leave.

Judicial review in Federal Court

Ms. Butu brought an application for judicial review in the Federal Court, asserting that the SST-AD misapplied the law and failed to consider relevant evidence. She also argued that her conduct did not amount to misconduct and that she could not have reasonably foreseen termination.

Justice Kane of the Federal Court dismissed the application. The Court held that the SST-AD applied the correct legal test, reasonably concluded that the appeal had no reasonable chance of success, and made no reviewable errors. It reiterated that tribunal decisions must assess only whether misconduct occurred—not the fairness of the employer's policy or whether the dismissal was justified under labour law.

Outcome

The Federal Court ruled in favor of the Attorney General of Canada. Ms. Butu’s application was dismissed, and no costs were awarded.