Executive Summary: Key Legal and Evidentiary Issues

• The Applicant was denied Employment Insurance (EI) benefits after refusing to comply with a COVID-19 vaccination policy, which led to his termination.

• He argued that his termination amounted to constructive dismissal, not voluntary departure.

• The Social Security Tribunal Appeal Division denied leave to appeal, finding no reviewable errors in the General Division's decision.

• The Federal Court assessed whether that denial was reasonable under the standard from Vavilov.

• Jurisdictional and factual challenges raised by the Applicant were dismissed as misinterpretations of the law and evidence.

• The Court found no breach of procedural fairness and upheld the tribunal's interpretation of its mandate and evidentiary role.

Facts and outcome of the case

Background and employment circumstances

Dmytro Ponomarov, a Financial Officer with the Ministry of Children and Family Development of British Columbia, was placed on unpaid leave and ultimately terminated after refusing to comply with a mandatory COVID-19 vaccination policy introduced by his employer. The policy required employees to provide proof of vaccination, and failure to comply led to a three-month unpaid leave, followed by termination. Ponomarov did not seek medical or religious accommodation and informed his employer that he would not accept the change in employment conditions. He requested a “clear Letter of Termination” instead.

Denial of EI benefits and procedural history

After being formally terminated in September 2022, the Applicant applied for EI benefits, claiming constructive dismissal. The Canada Employment Insurance Commission denied his claim, stating the termination resulted from misconduct. On appeal, the Social Security Tribunal's General Division recharacterized the case as voluntary departure without just cause, rather than misconduct, and upheld the denial. Ponomarov sought leave to appeal this finding to the Appeal Division, which denied leave on the basis that there was no reasonable chance of success on any of the statutory grounds for appeal under section 58 of the Department of Employment and Social Development Act (DESDA).

Issues before the Federal Court

The judicial review before the Federal Court focused on whether the Appeal Division reasonably concluded that the Applicant’s appeal had no reasonable chance of success. The Applicant argued that the General Division exceeded its jurisdiction by changing the nature of the Commission’s decision from misconduct to voluntary departure. He also claimed that his communications with the employer were attempts to negotiate rather than resign, and that the concept of constructive dismissal should have been given more weight.

Court’s reasoning and legal analysis

The Federal Court, applying the reasonableness standard from Vavilov, dismissed the application. It found that the General Division was legally permitted to assess both misconduct and voluntary departure under the Employment Insurance Act. The Court emphasized that tribunals are not bound by the Commission’s initial characterizations. Furthermore, the evidence, including a Skype call and email from the Applicant, supported the finding that he voluntarily left his job.

The Court also rejected the argument that the tribunal failed to consider constructive dismissal, citing case law that establishes the concept is not directly translatable into EI entitlement under the statutory scheme. Additionally, the Court found no procedural fairness breaches, noting the Applicant had multiple opportunities to present his case and was informed during the hearing that the tribunal would consider voluntary departure.

Conclusion and result

The Court ruled that the Appeal Division's decision was rational, defensible, and grounded in the evidentiary record and jurisprudence. The application for judicial review was dismissed, with no costs awarded to either party, as both had indicated they were not seeking them.