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"...the way I approached the Tribunal (3rd step after being denied EI following Request for Reconsideration) was to focus on elements of what constitutes misconduct. If you can put into question that Service Canada had sufficiently demonstrated that your actions/inactions met the 4 Elements of Misconduct, per the Employment Insurance Act (NOT the Employment Standards Act), then their case may fall apart, as all 4 elements are required in order to show misconduct.
If JUST ONE element is missing, then "a table leg has been kicked out" as I like to say. It causes their case to stumble. In my case, my firing was done so badly, the policy written so poorly, their communications and expectations completely unclear, that it was ...possible to honestly put into question whether Service Can had clearly demonstrated all the elements of misconduct.
If you can put into question just one of the four Elements of Misconduct, focus on it and highlight every valid point you can make about it.
There may be an argument about vaccine privacy and the lawfulness of the policies, but I think the best chance at succeeding is to focus on the elements of misconduct. It may be worth reading the EIA and familiarizing yourself with the term misconduct as it applies to the Act.
Four Elements of Misconduct:
a) Were employee actions willful.
b) Whether the Claimant knew or should have known that his conduct could get in the way of carrying out his duties toward his
employer.
c) Whether the Claimant knew or should have known that there was a real possibility of being let go because of not complying with the Policy.
d) The alleged misconduct caused the termination of the employment.
"
"Your employer must meet very stringent standards for alleging a willful misconduct. First of all, did they know about the alleged misconduct for a significant period of time? Secondly, did they inform you that your conduct was not acceptable? Thirdly, was the alleged willful misconduct serious and egregious? And finally, did you commit these acts knowingly, recklessly and consciously?
Notice the word "egregious".
(From Cornell Law: "In general, the term egregious is used to describe a conduct by a person intentionally committing an act or omission that involves knowing the violation of law.")
Another law firm states the following:
"Typically, willful misconduct happens in situations of theft, fraud or
violence, adds Fisher, or in cases where an employee has escalating behaviour
problems."
I clearly stated in a number of email to my former employer that I chose not
to disclose my medical information and I provided them with the appropriate
reference material as for my reasons, including OSHA 63(2), and others.
I also indicated to my employer that the ROE should reflect truthfully
the reasons, which was OSHA 63(2).
www.canada.ca (https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/reports/digest/chapter-21/doubt-reasonable-doubt.html)
Digest of Benefit Entitlement Principles Chapter 21 - Section 3 - Canada.ca
Employment insurance, Digest, Benefit Entitlement Principles
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https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2170/index.do
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https://www.gov.nl.ca/releases/2022/exec/0526n09/
COVID-19 Regulations Suspended as of June 1, 2022 - News Releases
COVID-19 Vaccine Regulations under the Health Protection and Promotion Act which came into effect in December 2021,
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The Government’s current Policy to deny EI benefits to those who lost their jobs for not getting the Covid vaccines is not in line with the caselaw in this area. Rather, it is arbitrary and being used to advance a political agenda.
The purpose of the Employment Insurance Act is to enable someone who involuntarily loses their employment to receive benefits which the employee pays for, in part. The Policy position taken by Service Canada and the Commission in labelling a simple refusal to get a COVID-19 vaccination as “misconduct” is “…inconsistent with the objective of the enabling statute or the scope of the statutory mandate.” Hudson’s Bay Company ULC v. Ontario (Attorney General) (Div. Ct., 2020) at p. 37.
By acting without a basis in law, Service Canada and the Commission have no legal jurisdiction for denying EI benefits to Canadians who did not receive the Covid vaccines. These decisions made are therefore null and void