Employee claims employer policy breached Charter right to religious freedom
The Federal Court of Appeal has upheld the rejection of employment insurance (EI) benefits requested by an employee who failed to timely advance his argument that his employer’s vaccination policy infringed his Charter rights to religious freedom and bodily autonomy.
The provincial health officer issued an order requiring all health workers to receive vaccines amid the COVID-19 pandemic. British Columbia Interior Health required employees – including the appellant in Sturgeon v. Canada (Attorney General), 2026 FCA 46 – to get the vaccine by Nov. 15, 2021.
Refusing to receive a COVID-19 vaccine, the appellant asked for an accommodation based on sincerely held religious beliefs. The employer refused the requested accommodation and placed him on unpaid leave. On Nov. 16, 2021, the employer terminated his employment.
The appellant applied for EI benefits. On May 11, 2022, the Canada Employment Insurance Commission denied his application and later his request for reconsideration. It found that he failed to comply with his employer’s policy and thus lost his job “due to his own misconduct.”
On appeal to the Social Security Tribunal’s General Division, the appellant alleged that his single act of refusing to consent to vaccination did not affect his ability to perform his duties and could not constitute misconduct, given the high burden for misconduct.
The appellant argued that the policy breached his rights under the Canadian Charter of Rights and Freedoms. He contended that he had personal safety concerns, began his employment without a vaccination policy in place, and sincerely held religious beliefs that the employer should have considered when enforcing its policy.
According to the General Division, under its jurisdiction, it could only determine whether the denial of EI benefits complied with the Employment Insurance Act, 1996.
The General Division decided that the appellant consciously, deliberately, and intentionally refused vaccination despite knowing of the policy and engaged in misconduct by failing to comply, which prevented him from going to work and performing his duties.
The General Division rejected the appellant’s arguments that his refusal to get a vaccine did not amount to misconduct because he was following his religious beliefs.
On July 14, 2023, the Social Security Tribunal’s Appeal Division denied leave to appeal upon finding no reasonable chance of success or breach of the appellant’s right to procedural fairness.
The Federal Court saw no error in the Appeal Division’s decision. Amid extensive case law, the Federal Court emphasized that the Social Security Tribunal – which had a narrow role in cases concerning the denial of EI benefits for failure to comply with an employer’s COVID-19 policy – should focus on the employee’s conduct, not the policy’s justification or Charter compliance.
Decision deemed reasonable
The Federal Court of Appeal dismissed the appeal without costs upon finding the Appeal Division’s decision reasonable in light of the appellant’s arguments, the General Division’s decision, the law, and the facts.
The appeal court noted that the Appeal Division saw no reasonable chance of success in the appellant’s assertions of procedural fairness in connection with the Canada Employment Insurance Commission’s non-attendance at the General Division hearing or the General Division’s non-acceptance of his post-hearing submissions.
The appeal court found no error in the Appeal Division’s and the Federal Court’s refusal to consider the appellant’s Charter arguments. The appeal court explained that, in a judicial review, it was too late to assert arguments insufficiently raised before the administrative tribunal.
Per the appeal court, in his submissions to the Appeal Division, the appellant failed to include his Charter arguments presented to the General Division or seek a reconsideration of the interpretation of the term “misconduct.” The appeal court noted that he instead focused on his procedural fairness arguments.
According to the appeal court, the appellant failed to raise before the General Division the argument that the decision-maker should interpret the concept of misconduct in the Employment Insurance Act in light of the Charter. The appeal court noted that he instead challenged the validity of the employer’s policy.
The appeal court added that the appellant failed to take the opportunity to advance his Charter argument by filing a notice of constitutional question and commencing the Social Security Tribunal’s Charter appeal process.
