Appeal Refused: Employment Insurance and Employer's Vaccination Policy

Citation: CR  v  Canada Employment Insurance Commission , 2026  [NAME]  54 Social Security Tribunal of Canada Appeal Division Leave to Appeal Decision Applicant: [redacted] Respondent: [redacted] Decision under appeal: General Division decision dated September 2, 2022 (GE-22-1487) Tribunal member: [NAME] Decision date: January 26, 2026 File number: AD-22-722 On this page Decision Overview Preliminary matters – the Claimant’s request to abey her appeal for new evidence Issues Analysis Conclusion Decision [ 1 ] Leave (permission) to appeal is refused. The appeal will not be going ahead. Overview [ 2 ] The Applicant, C. R. (Claimant), is seeking leave to appeal the General Division decision. [ 3 ] The General Division found that the Respondent, the Canada Employment Insurance Commission had proven that the Claimant was suspended and then ultimately dismissed from her employment because of misconduct. She had not complied with her employer’s COVID-19 vaccination policy. The General Division concluded that the Claimant was disentitled from receiving Employment Insurance benefits during her suspension from September 19, 2021, to January 14, 2022, and, after she had been dismissed, disqualified from receiving benefits from January 16, 2022. [ 4 ] The Claimant argues that the General Division made jurisdictional, procedural, legal, and factual errors. In particular, she argues that the General Division failed to address the fact that she had argued that the vaccine was ineffective and that she did not pose a risk to her work environment, that there was no government mandate for vaccination, and the fact that she had been wrongfully dismissed from her employment. She argues that her employer wrongfully dismissed her as it had denied her request for a religious exemption. The Claimant states that her union agrees with her that she did not commit any misconduct, given the circumstances. [ 5 ] Before the Claimant can move ahead with her appeal, I have to decide whether the appeal has a reasonable chance of success. Footnote 1 In other words, there has to be an arguable case. If the appeal does not have a reasonable chance of success, this ends the matter. Footnote 2 [ 6 ] I am not satisfied that the appeal has a reasonable chance of success. Therefore, I am not giving permission to the Claimant to move ahead with the appeal. Preliminary matters – the Claimant’s request to abey her appeal for new evidence [ 7 ] The Claimant is actively grieving her dismissal from her employment. This appeal had been in abeyance since late 2022, pending the outcome of the grievance. The Claimant argues that the Appeal Division should continue to abey this matter and await the outcome of her grievance. [ 8 ] However, since then, both the Federal Court and Federal Court of Appeal have issued numerous decisions addressing the issues that the Claimant raises in her Application to the Appeal Division. [ 9 ] It has become evident from the case law the fact the Claimant’s application and the issues that she has raised can be addressed without having to await the outcome of her grievance. I invited the parties to provide any submissions as to why the matter should continue to await the outcome of the grievance. The Claimant advised that arbitration began in November 2025. She does not know when the arbitration will conclude. [ 10 ] The Claimant says that waiting for the arbitration to conclude is vital to her case because it will establish her entitlement to Employment Insurance benefits. She says that the arbitration will establish that her employer acted unlawfully in having implemented a mandatory vaccination policy in the first place. Further, she says that the arbitration will also show that her employer wrongfully dismissed her. She also argues that, as the Appeal Division has abeyed these proceedings since late 2022, it will be a gross injustice not to await the outcome of the arbitration. [ 11 ] Even if I were to wait for the Claimant’s arbitration to conclude, it would not change the outcome of her application to the Appeal Division. Any decision that emerges from the arbitration will represent new evidence that the General Division did not have. It is well established that the Appeal Division generally does not consider new evidence. As the Federal Court of Appeal said in a case called [NAME] : [ 13 ] … under the rules set by Parliament, hearings before the Appeal Division are not redos based on updated evidence of the hearing before the General Division. They are instead reviews of General Division decisions based on the same evidence. [ 12 ] New evidence may be considered when it provides general background information, shows procedural defects, or exceptionally, in cases where both parties agree that an important document should be considered. Those circumstances do not exist here. [ 13 ] New evidence is not permitted to bolster a party’s case. The Claimant has not shown why any new evidence she might obtain should be accepted under any of the exceptions. I will be unable to rely on new evidence that the General Division did not have. [ 14 ] Even if I could consider the new evidence that the Claimant expects to receive following arbitration, it would not be relevant to this application. It is beyond the Appeal Division’s jurisdiction to consider the legality of the employer’s vaccination policy. [ 15 ] The Claimant says that the arbitration will show that her employer wrongfully dismissed her. She argues that having been wrongfully dismissed, she is entitled to Employment Insurance benefits. [ 16 ] However, it is well established that the General Division does not have any authority under the Employment Insurance Act to consider whether a claimant has been wrongfully dismissed from their employment, even in the vaccination context. That falls beyond the General Division’s authority. As the Federal Court of Appeal held in [NAME] , Were the applicant’s submissions to be upheld, the Social Security Tribunal would become a form to question employer policies and the validity of employment dismissals. Under any plausible reading of the legislation that governs the Tribunal, it is a forum to determine entitlement to social security benefits, not a forum to adjudicate allegations of wrongful dismissal. We note that the applicant has in fact pursued remedies elsewhere for wrongful dismissal and has made a human rights complaint. … Under its governing statute, the Social Security Tribunal cannot assess whether the applicant’s dismissal from employment was wrongful. Footnote 3 [ 17 ] In short, I see no basis to continue to abey this matter indefinitely while the Claimant’s arbitration process is ongoing. The Claimant would be unable to rely on any new evidence that might emerge from the arbitration proceedings. Issues [ 18 ] The issues are as follows: a) Is there an arguable case that the General Division made a procedural error? b) Is there an arguable case that the General Division made a jurisdictional or legal error by not considering whether the Claimant had been wrongfully dismissed from her employment? c) Is there an arguable case that the General Division made a legal error by failing to address the following: whether misconduct arises if a claimant has been wrongfully dismissed the legality or reasonableness of the employer’s vaccination policy? d) Is there an arguable case that the General Division made a factual error by overlooking some of the evidence? Analysis I am not giving the Claimant permission to appeal [ 19 ] Leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success. A reasonable chance of success exists if the General Division may have made a jurisdictional, procedural, legal, or a certain type of factual error. Footnote 4 [ 20 ] For these types of factual errors, the General Division had to have based its decision on an error that it made in a perverse or capricious manner, or without regard for the evidence before it. Footnote 5 The Claimant does not have an arguable case that the General Division made a procedural error [ 21 ] The Claimant does not have an arguable case that the General Division made a procedural error. [ 22 ] When she filled out the Application to the Appeal Division form, the Claimant checked the box for, “The General Division didn’t follow procedural fairness,” to suggest that the General Division made a procedural error. [ 23 ] However, the Claimant did not identify any specific procedural error that she alleges the General Division made. For instance, there is no suggestion that the Claimant did not receive a fair appeal or the chance to fully present her case at the General Division. She was given the opportunity to choose how the appeal proceeded, and she had the chance to file any documents and arguments to support her case. There is nothing that suggests the General Division member was biased or that there was a reasonable apprehension of bias. [ 24 ] As the Federal Court has said, “Absent any particulars, these bald assertions [have] no reasonable chance of success.” Footnote 6 The Claimant does not have an arguable case that the General Division made a jurisdictional error [ 25 ] The Claimant does not have an arguable case that the General Division made a jurisdictional error. [ 26 ] The Claimant argues that the General Division failed to consider whether her employer had wrongfully dismissed her from her employment. She argues that had the General Division considered this issue, it would have agreed with her and her union that her employer wrongfully dismissed her. [ 27 ] As I have cited above from [NAME] , the General Division cannot assess whether an applicant’s dismissal from their employment was wrongful. The General Division simply does not have any authority or jurisdiction to decide whether the Claimant was wrongfully dismissed from her employment. Footnote 7 This is settled law. The Claimant does not have an arguable case that the General Division made legal errors [ 28 ] The Claimant does not have an arguable case that the General Division made legal errors by (1) failing to address whether misconduct arises if a claimant has been wrongfully dismissed, or (2) failing to address the legality or reasonableness of her employer’s vaccination policy. [ 29 ] As I have noted above, the General Division does not have any jurisdiction to assess whether the Claimant’s employer wrongfully dismissed her from her employment. [ 30 ] The Claimant argues that the General Division should have considered the legality or reasonableness of her employer’s vaccination policy. She argues that the policy was unwarranted and unreasonable. She argues that the evidence and science do not justify her employer’s policy. She says that the COVID-19 vaccine does not stop transmission, so questions how she could have presented a risk to others in her work environment. Additionally, she says that she should have received a religious exemption from having to comply with her employer’s vaccination policy. [ 31 ] The General Division does not have any jurisdiction to assess the legality or reasonableness of an employer’s vaccination policy. The Federal Court has consistently held that the General Division and the Appeal Division do not have the authority to address these types of arguments. In a case called [NAME] , the Court held: As noted earlier, it is likely that the Applicant [[NAME]] will find this result frustrating, because my reasons do not deal with the fundamental legal, ethical, and factual questions he is raising. That is because many of these questions are simply beyond the scope of this case. It is not unreasonable for a decision-maker to fail to address legal arguments that fall outside the scope of its legal mandate. The  [NAME] -GD [Social Security Tribunal-General Division], and the Appeal Division, have an important, but narrow and specific role to play in the legal system. In this case, the role involved determining why the Applicant was dismissed from his employment, and whether that reason constituted “misconduct.” Footnote 8 [ 32 ] And in [NAME] , the Federal Court of Appeal held, “[T]he law is that the Social Security Tribunal cannot delve into whether the dismissal was proper or the reasonableness of the employer’s work policies that led to the dismissal.” Footnote 9 [ 33 ] The Claimant disagreed with her employer’s vaccination policy, in part on religious grounds, but her reasons for not complying with her employer’s vaccination policy are not relevant to the misconduct issue. This too has become settled law. Footnote 10 So, she does not have an arguable case that the General Division failed to address the legality or reasonableness of her employer’s vaccination policy. The Claimant does not have an arguable case that the General Division made a factual error [ 34 ] The Claimant does not have an arguable case that the General Division based its decision on a factual error that it made in a perverse or capricious manner of or without regard for the material before. [ 35 ] The Claimant checked the box, “The General Division made an important error of fact, to explain why she was seeking permission to appeal.” However, the Claimant did not identify any specific factual error that the General Division might have made. [ 36 ] As I noted above, absent any particulars, bald assertions do not have any reasonable chance of success. Footnote 11 Conclusion [ 37 ] The appeal does not have a reasonable chance of success. Therefore, I am refusing permission to appeal. This means that the appeal will not be going ahead. Footnotes Footnote 1 [NAME]  v  Canada (Attorney General) , 2010  FCA  63. Return to footnote 1 referrer Footnote 2 Under section 58 2) of the Department of Employment and Social Development ( DESD ) Act , I am required to refuse permission if I am satisfied “that the appeal has no reasonable chance of success.” Return to footnote 2 referrer Footnote 3 [NAME]  v  Canada (Attorney General) , 2024  FCA  7 at paras 6 and 7. See also [NAME]  v  Canada (Attorney General) , 2025  FCA  191 and [NAME]  v  Canada (Attorney General), 2024  FCA  96, citing [NAME]  v  Canada (Attorney General) , 2012  FCA  140. Return to footnote 3 referrer Footnote 4 See section 58(1) of the DESD Act. Return to footnote 4 referrer Footnote 5 See section 58(1)(c) of the DESD Act. Return to footnote 5 referrer Footnote 6 [NAME]  v  Canada (Attorney General) , 2024  FC  1326 at para 28. Return to footnote 6 referrer Footnote 7 [NAME] , at para 7. See also, for instance, [NAME]  v  Canada (Attorney General) , 2024  FCA  96 and [NAME]  v  Canada (Attorney General) , 2025  FCA  40. Return to footnote 7 referrer Footnote 8 [NAME]  v  Canada (Attorney General) , 2023  FC  102. Return to footnote 8 referrer Footnote 9 [NAME] , at para 14. Return to footnote 9 referrer Footnote 10 [NAME]  v  Canada (Attorney General) , 2025  FCA  57 at para 5, citing [NAME]  v  Canada (Attorney General) , 2019  FCA  222 at para 21 and [NAME]  v  Canada (Attorney General) , 2007  FCA  36 at para 14. See also [NAME]  v  Canada (Attorney General) , 2024  FCA  81 at para 6. Return to footnote 10 referrer Footnote 11 [NAME]  v  Canada (Attorney General) , 2024  FC  1326 at para 28. Return to footnote 11 referrer