Executive Summary: Key Legal and Evidentiary Issues

• Termination of employment due to refusal to comply with a COVID-19 vaccination policy was deemed “misconduct” under the Employment Insurance Act.

• The denial of Employment Insurance (EI) benefits was upheld by both the General Division and the Appeal Division of the Social Security Tribunal.

• Judicial review sought by the applicant focused on alleged procedural unfairness and tribunal bias.

• Reinstatement by the employer was considered irrelevant to the “misconduct” determination under subsection 30(1) of the Act.

• Constitutional argument regarding freedom of religion was dismissed due to lack of proper notice and procedural steps.

• The Federal Court of Appeal found the Appeal Division’s decision reasonable and dismissed the application without costs.

Facts and Outcome of the Case

Background and Dismissal

Melick Besley was terminated from his position with the Toronto Transit Commission (TTC) for failing to comply with the organization’s mandatory COVID-19 vaccination policy. Following this, the Canada Employment Insurance Commission determined that his termination amounted to “misconduct” under subsection 30(1) of the Employment Insurance Act. As a result, he was disqualified from receiving EI benefits.

Tribunal Decisions

Mr. Besley challenged the decision at the General Division of the Social Security Tribunal, which affirmed the denial of benefits based on a finding of misconduct. He then appealed to the Appeal Division, which acknowledged an error of law in the initial ruling but still agreed, upon correcting that error, that misconduct occurred. Mr. Besley subsequently sought judicial review in the Federal Court of Appeal.

Key Legal Standards

The Court reiterated that the test for misconduct under subsection 30(1) of the Employment Insurance Act does not require intent or moral fault. Instead, it centers on whether the employee knew, or ought to have known, that their conduct—in this case, refusing vaccination—would lead to dismissal. The Court also emphasized that whether the employer was justified in the dismissal under labour laws is irrelevant to determining misconduct for EI purposes.

Arguments Raised by the Applicant

Mr. Besley argued that his reinstatement by the TTC indicated that his dismissal was unjust, which should negate the finding of misconduct. He also alleged procedural unfairness and tribunal bias, and introduced a constitutional argument related to religious freedom, claiming the vaccine requirement violated his rights. However, he failed to file the required notice to advance a constitutional claim.

Federal Court of Appeal Decision

The Court found no merit in the procedural or constitutional claims. It upheld the Appeal Division’s decision, emphasizing that the finding of misconduct was reasonable and supported by precedent. The Court stated that reinstatement by an employer or grievances under labour law do not affect EI eligibility assessments. The judicial review application was dismissed, with no costs awarded.