Great news from Social Security Tribunal of Canada for unvaccinated people who were denied Employment Insurance
A historical milestone for Canadians who were denied Employment Insurance while on Leave Without Pay because of vaccination policy. It was not "misconduct", it was their "right for bodily integrity".
Some of you will know how significant this news is - especially for thousands Canadians (or hundreds of thousands of them, including military, nurses and doctors, university teachers and workers, government employees) who were denied Employment Insurance when placed on Leave Without Pay (LWOP) for many months because of their decision to not allow themselves to be vaccinated against their will. Now they may finally expect to receive Employment Insurance.
But even more importantly, the decision of Social Security Tribunal of Canada has now publicly stated that there such a thing in Canada called “right for bodily integrity" - the right that some organizations or people seemed to forget about.
Original document:
The quotes from it are below:
Social Security Tribunal of Canada General Division – Employment Insurance Section Decision
Decision under appeal: Canada Employment Insurance Commission reconsideration decision (466490) dated April 29, 2022 (issued by Service Canada)
Tribunal member: Mark Leonard
Type of hearing: In person
Hearing date: November 15,
Decision date: December 14, 2022
Decision:
[1] The appeal is allowed. The Tribunal agrees with the Claimant.
[2] The Canada Employment Insurance Commission (Commission) hasn’t proven that the Claimant lost her job because of misconduct (in other words, because she did something wrong that caused her to lose her job). This means that the Claimant isn’t disqualified from receiving Employment Insurance (EI) benefits.
…
Rights of the Claimant
[72] The Claimant was clear that she was not defying her employer by choosing not to get vaccinated but simply expressing her interest in protecting her health. She says that she did nothing wrong that warranted dismissal and her actions are not misconduct under the Act. She raises the allegation that the Employer failed to accommodate the security of her bodily integrity, according to law. She added that she attempted to maintain her job by proposing options such as continuing with testing and other transmission limiting protocols, but the Employer rejected her offer.
[73] Again, it is not the Employer’s actions that are in question. But the Claimant raises a valid point concerning her right to bodily integrity.
[74] As I noted above, there is no Federal or Provincial legislation that demands Covid-19 vaccination and therefore vaccination against Covid-19 remains voluntary.
[75] It is both well founded and long recognized in Canadian common law that an individual has the right to control what happens to their bodies.22 The individual has the final say in whether they accept any medical treatment.23
[76] The common law confirms that the Claimant has a legal basis or “right” to not accept any medical treatment, which includes vaccination. If vaccination is therefore voluntary, it follows that she has a choice to accept or reject it. If she exercises a right not to be vaccinated, then it challenges the conclusion that her actions can be characterized as having done something “wrong” or “something she should not have done,” whether willfully or not, that would support misconduct and disqualification within the meaning of the EI Act?24
[77] Even the Claimant’s employment contract (CA) acknowledges that she has the right to refuse any recommended or required vaccination.
[78] The issue of the Covid-19 vaccinations and dismissals resulting from noncompliance is an emerging issue. No specific case law currently exists on the matter that guides decision makers.
[79] Indeed, I could not find a single case where a claimant did something for which a specific right, supported in law, exists, and subsequently that action was still found to be misconduct simply because it was deemed willful.
[80] In the absence of a FCA decision that provides such guidance, I am persuaded that the Claimant has a right to choose whether to accept any medical treatment.
Despite that fact that her choice contradicts her Employer’s policy, and led to her dismissal, I find that exercising that “right” cannot be characterized as a wrongful act or undesirable conduct sufficient to conclude misconduct worthy of the punishment of disqualification under the EI Act.
So, did the Claimant lose her job because of misconduct?
[81] Based on my findings above, I find that the Claimant did not lose her job because of misconduct.
[82] This case is not about whether the Employer’s policy is legal or reasonable nor whether its decision to dismiss the Claimant is justified. The issue is whether the Claimant’s decision not to be vaccinated, despite the Employer’s policy, supports a conclusion of misconduct. The courts have detailed the test to make that determination and it is upon the Commission to prove the elements.
[83] The Commission has not met the burden of proof to establish that the Claimant breached an expressed or implied duty arising out of her employment agreement.
[84] Further, the Claimant had a right both expressed in Canadian case law and detailed in Article 19.02 of her collective agreement to refuse vaccination.
[85] Given those expressed rights, I find that the Claimant decision not to be vaccinated, despite her Employer’s policy, is not misconduct under the Act.
Other statements of special interest
[34] The Claimant both submitted and testified that the reason she did not get vaccinated was because she has a health condition. She testified that she had cancer as a child, and had had negative reactions to anesthetic during surgery. She attended a Covid-19 education session and spoke with several doctors about the vaccines. She conducted her own research. She decided that there was insufficient information available to give her confidence that she would not have negative consequences from taking the vaccine. She elected to wait until there was more definite information concerning the safety of the vaccines.
[35] She says that she and others submitted their concerns to Employer and Union (Bargaining Agent) regarding the vaccines but received no response. A subsequent correspondence from the Claimant to the Employer suggested alternative options to vaccination such as continuing to submit to Covid-19 infection testing and other protective protocols. The Employer rejected these options and it maintained its requirement for vaccination or authorized exemption. Is there an expressed duty arising out of her employment contract?
[36] I find that the Commission has not shown that there is an expressed duty detailed in the Claimant’s CA that would support an obligation upon the Claimant was to get vaccinated against Covid-19.