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See this document with all links in google drive. It is prepared by Telegram support group for all people have been experiencing difficulty in obtaining EI benefits
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OVERVIEW
I have been denied Employment Insurance benefits as it was determined that I lost my employment due to “misconduct” and “not available for work” under the Employment Insurance Act.
ORDER I AM SEEKING
Allow my appeal.
Find that I am not disqualified from receiving EI from date of application.
ISSUE #1: Misconduct
EI Act
Section 29 c: For the purposes of sections 30 to 33,
(c) just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following:
(ix) significant changes in work duties,
(xi) practices of an employer that are contrary to law,
(xii) discrimination with regard to employment
Section 49(2): The Commission shall give the benefit of the doubt to the claimant on the issue of whether any circumstances or conditions exist that have the effect of disqualifying the claimant under section 30 or disentitling the claimant under section 31, 32 or 33, if the evidence on each side of the issue is equally balanced.
EI Digest:
7.1.0: The word "misconduct" is not defined in the legislation. When this word is used in a legislative context, it is the prerogative of the courts to interpret it. It is therefore a question of law. Over the years, jurisprudence has made a number of clarifications to the interpretation of the word "misconduct".
In general, misconduct refers to ill-intentioned actions by an employee; actions that are incompatible with the reliable and suitable carrying out of the duties for which the employee was hired.
7.2.4, to establish misconduct, it must be shown
(a) that the conduct in question constituted a breach of the employer-employee relationship;
(b) that the conduct was wilful;
(c) that there was a causal relationship between the alleged conduct and the dismissal;
(d) that the alleged misconduct was not a mere excuse or pretext for the dismissal.
Therefore the documented facts must establish that:
there was a specific incident which served as a breaking point where the employee’s conduct resulted in loss of employment (dismissed or suspended);
the conduct had a material and adverse effect on the employer;
the conduct constituted a breach in the employer-employee relationship;
the action was wilful and/or intentional on the part of the claimant; and
the conduct was the real reason for the loss of employment and not an excuse or pretext.
7.2.4.2: In order to arrive at a conclusion or finding of misconduct, the conduct alleged by the employer must directly affect the employment relationship, and it must somehow interfere with the employee’s ability to perform job duties.
7.2.4.3: Any employment relationship can be called a contract between employee and employer. Whether written, verbal or unstated, this contract is an agreement about the duties and responsibilities each party owes the other. Each party must be able to trust that the other will fulfill those duties and responsibilities.
A breach of the employer/employee relationship may occur on either side of the relationship, or may be an event external to the employment. The simple existence of a breach does not mean there has been misconduct.
7.2.4.4, willfulness means that the evidence reasonably leads to the conclusion the claimant knew the conduct was prohibited or neglectful, but chose to continue the course of conduct anyway. Willfulness means only that the employee acted deliberately and without coercion.
7.1.0, misconduct refers to ill-intentioned actions by an employee; actions that are incompatible with the reliable and suitable carrying out of the duties for which the employee was hired. These are actions that result in the person who worked for an employer and committed these infractions, no longer meet the expressed or implicit conditions of employment or work.
7.2.5 Interpretation of the meaning of misconduct states “to be considered misconduct under the EI Act, the actions must be intentional or negligent to the point of being deemed a breach of an obligation arising explicitly or implicitly from the contract of employment; otherwise there is no misconduct.
7.3.2.2, refusal to obey or comply with a legitimate and reasonable order or instruction from the employer may constitute misconduct. The officer must try to determine whether the order or instruction was reasonable and whether it contravened any legal statutes or provisions of a collective agreement.
7.3.2.1, “If it is contended that the employer's request contravenes provisions of a statute or the collective agreement, the employee must, before refusing to perform the duties, take appropriate steps to ensure the application of the statute or collective agreement”. “occupational health and safety acknowledge the specific right of workers to refuse to perform duties if they have reasonable grounds for believing that there is some danger to their own or other persons' health or safety. This right of refusal is generally granted to the worker until the designated authorities have rendered a binding decision concerning the resumption of work. However, a worker cannot refuse to perform certain duties when the immediate effect of the refusal jeopardizes another person or when the conditions of work are normal, given the type of occupation.”
7.3.4 “An employer has the right to establish the rules in an employment relationship, as long as they comply with any legal requirements set out by legislation (provincial and federal labour laws or immigration laws, for example) and those set out in a collective agreement.”
A breach is described as a violation or infraction, a failure to observe the terms, a non-fulfilment of a promise or contract, a breaking up of friendly relations, a disagreement, a failure to carry out an obligation and other similar terms. Breaches of established work standards, instructions, rules or regulations of the employer or the collective agreement may constitute misconduct.
7.2.3.1: The EI Act (ss49(2)) is very clear on the action to be taken if there is an issue of disqualification and the evidence presented by the claimant and by the employer are equally balanced: the benefit of the doubt is given to the claimant.
The onus of proof, on the balance of probabilities, lies on the Employer to establish that the loss of employment by the Claimant was "by reason of their own misconduct" (Minister of Employment and Immigration v Bartone, A-369-88).
Legal Requirements Set Out by Legislation
As per EI Digest 7.3.4, an employer has the right to establish the rules in an employment relationship, as long as they comply with any legal requirements set out by legislation (provincial and federal labour laws or immigration laws, for example). Therefore, The Commission must determine if the rule complied with legislation. Below is a list of legislation in which the employers’ rule did not comply.
Canadian Bill of Rights S.C. 1960, c. 44,
Section 1(a) the right of the individual to life, liberty and security of persons
Section 1(b) the right of the individual to equality before the law and the protection of the law.
https://laws-lois.justice.gc.ca/eng/acts/c-12.3/page-1.html
Health Care Consent Act, 1996
https://www.canlii.org/en/on/laws/stat/so-1996-c-2-sch-a/latest/so-1996-c-2-sch-a.html
Consent to Treatment
No treatment without consent:
Section 10 (1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless, (a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or (b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act.
Elements of consent:
Section 11 (1) The following are the elements required for consent to treatment: 1. The consent must relate to the treatment. 2. The consent must be informed. 3. The consent must be given voluntarily. 4. The consent must not be obtained through misrepresentation or fraud.
Informed consent:
Section 11(2) A consent to treatment is informed if, before giving it, (a) the person received the information about the matters set out in subsection (3) that a reasonable person in the same circumstances would require in order to make a decision about the treatment; and (b) the person received responses to his or her requests for additional information about those matters. The people of Canada are protected under the medical and legal ethics of expressed informed consent, and are entitled to the full protections guaranteed under:
Occupational Health and Safety Act R.S.O.1990,c.0.1.
Section 63, Information Confidential:
Subsection (2) Employer access to health records:
(f) No employer shall seek to gain access, except by an order of the court or other tribunal or in order to comply with another statute, to a health record concerning a worker without the worker’s written consent.
https://www.ontario.ca/laws/statute/90o01
The Employer “Vaccine” Policy is NOT a statute. It is not a bylaw, nor is it legislation. It is a mandate and in this instance it is an "offer to contract" as it does not fall under a statute.
Black’s law dictionary provides the definition of a mandate. A mandate by definition is gratuitous and is ineffective unless agreed upon by the mandatary. It becomes effective ONLY if the mandatary, in this case the employee, voluntarily agrees to it. It is an offer to contract and it requires consent and agreement. Accordingly, it is meaningless and no contract is established. Because of the gratuitous nature of the mandate, it is done or performed without obligation.
Medicine Act, 1991, outlines who can engage in the practice of medicine, the scope of practice, and the authorized acts. A vaccination is a medical treatment which can only be prescribed by a person who is qualified. My employer is not qualified to practice in Ontario.
Scope of practice
3 The practice of medicine is the assessment of the physical or mental condition of an individual and the diagnosis, treatment and prevention of any disease, disorder or dysfunction. 1991, c. 30, s. 3.
Authorized acts
4 In the course of engaging in the practice of medicine, a member is authorized, subject to the terms, conditions and limitations imposed on his or her certificate of registration, to perform the following:
8. Prescribing, dispensing, selling or compounding a drug.
Restricted titles
9 (1) No person other than a member shall use the titles “osteopath”, “physician” or “surgeon”, a variation or abbreviation or an equivalent in another language. 1991, c. 30, s. 9 (1).
Representations of qualification, etc.
(3) No person other than a member shall hold himself or herself out as a person who is qualified to practise in Ontario as an osteopath, physician or surgeon or in a specialty of medicine. 1991, c. 30, s. 9 (3).
Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.M.56. (Ontario):
Section 18, Personal information
(1) In this section:
“personal information” includes information that is not recorded and that is otherwise defined as “personal information” under this Act.
Collection of personal information
(2) No person shall collect personal information on behalf of an institution unless the collection is expressly authorized by statute, used for the purposes of law enforcement or necessary to the proper administration of a lawfully authorized activity. R.S.O. 1990, c. M.56, s. 28.
https://www.ontario.ca/laws/statute/90m56#BK39
Freedom of Information and Protection of Privacy Act of Ontario (FIPPA). https://www.ontario.ca/laws/statute/90f31#BK0
Personal medical information of ALL employees of the Employer is public knowledge, whether they are vaccinated or not. I know the personal medical information of every employee, current and past, as of November 15, 2021.
Section 2 (1):
“personal information” means recorded information about an identifiable individual, including,
(b) information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,
Section 21(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where the personal information,
(a) relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation;
Criminal Code of Canada
https://laws-lois.justice.gc.ca/eng/acts/c-46/index.html
Enforcement of the City policy is a crime under the following criminal codes:
Section 265 (1), (3) – Assault
(1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
Consent
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
Section 346- Extortion
(1) Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done.
Section 264.1(1) - Uttering threats
1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat
(a) to cause death or bodily harm to any person;
Section 423 (1) – Intimidation
(1) Every one is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing,
(a) uses violence or threats of violence to that person or their intimate partner or children, or injures the person’s property;
(b) intimidates or attempts to intimidate that person or a relative of that person by threats that, in Canada or elsewhere, violence or other injury will be done to or punishment inflicted on him or her or a relative of his or hers, or that the property of any of them will be damaged;
Declaration of Emergency, under the Emergency Management and Civil Protection Act, was revoked on June 9, 2021. DOE Revoked
Additional, there are International Laws which protect medical privacy:
The Nuremberg Code, 1947
The Nuremberg Code, to which Canada is a signatory, states that it is essential before performing a medical procedure on human beings, that there is voluntary informed consent. It also confirms a person involved should have legal capacity to give consent, without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him/her to make an informed decision.
Nuremberg Code: Article 6, Section 1:
Any preventative, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be expressed and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.
Nuremberg Code: Article 6: Section 3:
In no case should a collective community agreement or the consent of a community leader or other authority substitute for an individual’s informed consent.
The International Covenant on Civil and Political Rights, adopted by Canada on March 23, 1976 https://www.ohchr.org/sites/default/files/Documents/ProfessionalInterest/ccpr.pdf
Article 1
All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Article 4
In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the State Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the grounds of race, colour, sex, language, religion or social origin.
No derogation from Articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.
Article 5
Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.
There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.
Article 6
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his/her life.
Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his/her free consent to medical or scientific experimentation.
The United Nations’ Universal Declaration of Human Rights https://www.un.org/en/about-us/universal-declaration-of-human-rights
Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social Page 9 of 10 origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 3: Everyone has the right to life, liberty and security of person.
Article 8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
Article 17
Everyone has the right to own property alone as well as in association with others.
No one shall be arbitrarily deprived of his property.
Article 18: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 23
Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
Everyone, without any discrimination, has the right to equal pay for equal work.
Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
Everyone has the right to form and to join trade unions for the protection of his interests.
Article 25
Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
Facts:
I gave a breakdown of my employment history with the Employer that dismissed me.
I have an excellent work history with no previous disciplinary record. I was often called upon by my Employer to join committees due to my expertise, skills, dedication and commitment. On March 21, 2022, my Employer, signed by the Chief Administrative Officer (CAO) and Mayor, issued a Service Award certificate to recognize my years of commitment and dedication and they expressed their sincere appreciation. Insubordination and misconduct is out of my character.
I worked from home and contacted staff, clients, community agencies, and the general public via phone, email or videoconferencing such as Teams or Zoom.
The Executive Leadership Team, which consisted of 12 senior management staff, created a “Vaccine” policy and distributed to staff on September 14, 2021. It was implemented immediately. It was expected that employees provide their personal medical information of their vaccine status by September 30, 2021. It was expected that employees provide proof of two doses of the Health Canada approved vaccine by November 15, 2021.
The mandatory Covid-19 vaccine policy was a new employer policy, not an existing one. The Employer provided little notice about the policy and did not allow for discussion with the Union or answer questions from staff. The policy was in contradiction to the existing Workplace Violence, Harassment and Discrimination policy and the expectation of a fair and equitable working environment as stated in the existing Employee Handbook.
As a result of the Employer’s Vaccination Policy,
I was dismissed because my employer required me to perform an act which was not within my employment contract or within the Collective Agreement. I did not consent to the change in my employment contract.
I was dismissed because the policy was unclear and ambiguous, and my employer refused to provide informed consent as required by law.
I was dismissed because my employer was performing an unlawful act and would not provide the verification in which the act was lawful. I would have gladly provided my vaccination status if the policy was shown to be lawful.
I was dismissed because my employer would not explain what was false or wrong about exercising my lawful right of informed medical consent.
To address whether misconduct occurred, we need to look at the following:
As per EI Digest 7.2.4.4, wilfullness is defined as “the conduct was prohibited or neglectful”. In other words, prohibited by law or not done that which it was his duty to do so. As there are no laws which require disclosing personal medical information nor is there a duty, as per my employment contract and collective agreement, in which I am required to disclose personal medical information, there can be no “willfulness” if the conduct is not prohibited or neglectful.
Vaccinations are not addressed in the Collective Agreement. The Employer has not previously required any employee to be vaccinated as a condition of employment. There is no legislated requirement that the employees must be vaccinated.
Dismissing an employee for failing to disclose vaccination status, when it was not a requirement of being hired, or an agreed condition of employment, is an amendment to my employment contract. While an employer has the right to manage their business, in the absence of a specific statutory authority or specific provision in the collective agreement, an employer cannot terminate an employee for breach of a rule unless it meets the KVP test (https://nelliganlaw.ca/blog/when-unilateral-management-policies-are-invalid-the-renewed-power-of-the-kvp-test/) and is found to be a reasonable exercise of management rights. Supreme Court of Canada approved the KVP test in Irving Pulp 2013 decision.
The “KVP test” requires that a policy or rule satisfy all of the following conditions:
It must not be inconsistent with the collective agreement
the employer’s policy is inconsistent with the collective agreement.
It must not be unreasonable
the policy does not meet the purpose “…to continue to protect the health and safety of the employees from the spread of COVID-19”. The spread of the virus, whether an employee is vaccinated or not, will occur. Therefore, my vaccination status is irrelevant.
It must be clear and unequivocal
I sent 25 questions to the Executive Leadership Team, three times and the questions were not answered. (Exhibit 3)
I broke down the policy with questions and links and the response mirrored my questions and links, thus making the policy more ambiguous. For example, Health Canada does not have any “approved” vaccinations for Covid-19, only “authorized for use”. See below for details under “Other Information Which Contradicts the Employer’s Policy”
I sent 10 questions to my Manager and she stated that she would not answer them.
My employer did not provide informed consent
It must be brought to the attention of employees affected before the company can act on it
The policy was implemented on the day it was released, without discussion, clarification or time to respond.
The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge
The policy stated “may be dismissed” not “will be dismissed”.
Such rule should have been consistently enforced by the company from the time it was introduced
The rule contradicted other workplace policies.
Arbitration decision: https://www.canlii.org/en/on/onla/doc/2022/2022canlii343/2022canlii343.html?autocompleteStr=electrical%20saf&autocompletePos=5
An employer may institute a reasonable rule or policy requiring disclosure of medical information to ensure that the employee is fit to perform work or safely attend at the workplace. However, any such rule or policy must be reasonably necessary and involve a proportionate response to a real and demonstrated risk or business need. Non-disclosure of my vaccination status does not impair my performance of duties nor is my status fundamental to the employment relationship. The policies that the employer adopted prior to the introduction of the Vaccination Policy appear to have been highly effective in protecting employee health and safety while attending the workplace. It has been an assumption by the Commission, that my duties would be impaired if I did not disclose my vaccination status. This is simply not true. There would be no change in my abilities or my duties to my employer regardless of my vaccination status. I was not selling illegal contraband on company property, or not showing up for work, or self-medicating with non-prescription drugs.
Both the Commission and my Employer failed to divulge how my vaccination status would affect job performance. It did not change my job performance post September 30, 2021 in comparison to pre-September 30, 2021. The employer could have provided an analysis of workplace dangers and hazards of an employee working from home if vaccination status was unknown, however, they did not. According to Employment Standards Act, the employer must comply with the labour laws, the only time when medical information is to be provided is when an employee requests a medical leave like pregnancy, sick leave, etc. The vaccine is referred to as a “treatment” and only a qualified health practitioner can determine this treatment. My employer is not a qualified health practitioner.
I attended a virtual “Town Hall” meeting on September 15, 2021 at 3 pm in the hopes of having many questions answered and obtaining informed consent. I asked 22 questions, in which only 3 were answered. The meeting was set up that one could not see who else was attending the meeting. One could not ask a question verbally, one could only type it into the Q&A section. The questions could not been seen by anyone unless the moderator marked it as “answered”. I am aware of two other co-workers who also asked questions, one of them asked eight and the other asked 3, all questions went unanswered. I am aware of this, as we were had a “group chat” during the Town Hall meeting. Despite all the questions pending a response, the CAO changed the subject and finished the meeting.
The employer provided a list of frequently asked questions. I read this document on several occasions and my questions were not on this list or answered.
There is no Provincial mandate that all employees must be vaccinated. I requested the lawful authority on at least six separate occasions to Management, including the CAO of the City. I requested them on September 30, 2021 to the 12 Executive Leadership Team members via email, October 4, 2021 to the 12 Executive Leadership Team members and HR via email, October 21, 2021 to the 12 Executive Leadership Team members and HR via email, October 26, 2021 to my Manager (twice - verbally and via email), November 3, 2021 to my Manager (verbally), November 8, 2021 to my Manager (verbally)). The employer failed to provide informed consent and the lawful authority. In fact, Reopening Ontario Act specifically has workers exempt from the mandatory vaccination. The Ontario Public Health Chief confirms that immunization was never mandated. The requirement to have a vaccine policy was mandated. Please see that attached video from CPAC at the 11:55 minute mark for confirmation: https://www.youtube.com/watch?v=J2F_x0JS8gk
The employer breached the relationship through not following their own policies on discrimination. My employer has created different classes of people and is treating them differently. This contravenes the Canadian Bill of Rights. If there is a bona fide reason to discriminate, a job analysis must be completed. I requested a copy of my Job Analysis on October 4, 2021 and have yet to receive it. I requested the breakdown of the framework, set out by the Supreme Court of Canada, when deciding whether a prima facie discriminatory requirement is reasonable and bona fide. The Employer must show that the requirement:
Was adopted for the purpose or goal that is rationally connected to the function being preformed
Was adopted in good faith, in the belief that it is necessary to fulfill the purpose or goal
Is reasonably necessary to accomplish its purpose, in the sense that it is impossible to accommodate the claimant without undue hardship.
Based on the information from Public Health (Exhibit 6), 1000 vaccine studies1, Pfizer2, and many health/science professionals, the first and third requirement have not been met. Is this the reason the employer failed to provide my job analysis? 1https://www.saveusnow.org.uk/covid-vaccine-scientific-proof-lethal/ 2https://phmpt.org/wp-content/uploads/2021/11/5.3.6-postmarketing-experience.pdf
According to the Employer’s Employee Handbook, “Employer will provide a working environment that is fair and equitable to all Employees and is free of both intentional and systemic discrimination.” The Employer has a Workplace Violence, Harassment and Discrimination Prevention policy in place. The purpose of the policy is to provide a safe and healthy workplace; free from actual, attempted or threatened violence, harassment, sexual harassment and discrimination. The Canadian Bill of Rights, Section 1 (b) states “equality of the law and protection of the law” meaning there is no limit to the protection of the law. My employer did not follow its own policies and has created two classes of people and treating them differently.
Right up until the final day, I did not really believe they would dismiss me. I thought my employer was transparent and would act lawfully. I truly believed that my employer would protect my human rights and that they believed in fairness and equality and every employee was free from violence, harassment and discrimination. The employer has failed to follow through with dismissal on several occasions. There was a time that the management section threatened about half the staff with termination. Management eventually came to their senses and did not terminate any of the staff. There were also two Directors who continually harassed and bullied their staff. They were not dismissed, only moved to a horizontal position to manage different staff, despite the Workplace Violence, Harassment and Discrimination Prevention Policy and Program which states “Workplace violence, harassment and discrimination are considered a form of misconduct, and discipline relative to the seriousness of the offence will be imposed, up to and including termination.” When other employees had not been terminated for misconduct, then why would one believe that this policy would be different?
On November 15, 2021, my Manager contacted me and advised me that I was being placed on an investigative leave in which Human Resources would complete an investigation and contact me for a meeting. On November 17, 2021, I had a meeting with my Director, Manager and Union representative, which was the termination meeting. I once again requested the lawful authority to provide personal medical information. The Director would not provide this. I also requested a copy of the “investigation” and was refused. Human Resources did not contact me for a meeting.
During and after the meeting with my Director on November 17, 2021, I was in a fog. I couldn’t believe my Employer would stoop so low as to break a dozen or more laws plus their own policies that had existed for years. I really thought they would rethink their position and provide alternatives and answers.
I didn’t apply for Employment Insurance Benefits until January 5, 2022. I did not apply immediately, as I was sure that my employer would answer my questions, provide the lawful authority for the requirement to provide personal medical information and/or realize that they have made an unlawful policy and adjust accordingly.
I had worked from home since mid-March 2021. Although there was a “return to the office” plan, it was constantly changing and many staff would continue to work from home. I had submitted a request to continue to work from home. The two persons who took over my job duties continue to work from home to this day. If there was a need to return to the office, my office had a door and was a minimum of 10 feet from the closest foot traffic, and I was also willing to work alternate hours. My employer failed to look at these accommodations.
The status of any employee’s vaccination status has not interfered with the Employer’s business. I worked from home until November 15, 2021 (last day worked) without impairment of my job duties. In fact, my job performance has always been exceptional without disclosure of personal medical information.
My employer stated that I did not have a valid reason for not disclosing my vaccination status, however, informed consent, bodily autonomy, and medical consent are valid reasons, based on case law:
Supreme Court of Canada decisions:
Parmley v. Parmley, 1945 CanLII 13 (SCC), [1945] SCR 635
Consent and assault:
Force to the person is rendered lawful by consent in such matters as surgical operations. The fact is common enough; indeed authorities are silent or nearly so, because it is common and obvious. Taking out a man's tooth without his consent would be an aggravated assault and battery. With consent it is lawfully done every day. [Pollock on Torts, 14th ed., p. 124.]
The conclusion appears unavoidable that both of the parties hereto, particularly in the operating room, failed to recognize the right of a patient, when consulting a professional man in the practice of his profession, to have an examination, a diagnosis, advice and consultations, and that thereafter it is for the patient to determine what, if any, operation or treatment shall be proceeded with.
It may be that in the operating room the parties hereto were of the opinion that they were acting in the best interests of Mrs. Yule in extracting the teeth, but that is not the point. That would have been very important in their consultation with and their advising of Mrs. Yule, but it does not justify their proceeding without her consent. As was said by Garrison J., "No amount of professional skill can justify the substitution of the will of the surgeon for that of his patient." Bennan v. Parsonnet[7]
Hopp v. Lepp, 1980 CanLII 14 (SCC), [1980] 2 SCR 192
Informed consent:
Whether there was informed consent was the main issue argued in this Court. It is an issue that comes before this Court for the first time. The [Page 196]
term "informed consent", frequently used in American cases, reflects the fact that although there is, generally, prior consent by a patient to proposed surgery or therapy, this does not immunize a surgeon or physician from liability for battery or for negligence if he has failed in a duty to disclose risks of the
surgery or treatment, known or which should be known to him, and which are unknown to the patient. The underlying principle is the right of a patient to decide what, if anything, should be done with his body: see Parmley v. Parmley and Yule[2], at pp. 645-46. (I leave aside any question of emergency or of mental incompetency and, also, situations where the operation or treatment performed or given is different from that to which the patient consented.) It follows, therefore, that a patient's consent, whether to surgery or to therapy, will give protection to his surgeon or physician only if the patient has been sufficiently informed to enable him to make a choice whether or not to submit to the surgery or therapy. The issue of informed consent is at bottom a question whether there is a duty of disclosure, a duty by the surgeon or physician to provide information and, if so, the extent or scope of the duty.
R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330
Bodily autonomy, consent, fear and assault:
28 The rationale underlying the criminalization of assault explains this. Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy. The inclusion
of assault and sexual assault in the Code expresses society’s determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual’s right to physical integrity is a fundamental principle, “every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner”: see Blackstone’s Commentaries on the Laws of England (4th ed. 1770), Book III, at p. 120. It follows that any intentional but unwanted touching is criminal.
36 To be legally effective, consent must be freely given. Therefore, even if the complainant consented, or her conduct raises a reasonable doubt about her non-consent, circumstances may arise which call into question what factors prompted her apparent consent. The Code defines a series of conditions under which the law will deem an absence of consent in cases of assault, notwithstanding the complainant’s ostensible consent or participation. As enumerated in s. 265(3), these include submission by reason of force, fear, threats, fraud or the exercise of authority, and codify the longstanding common law rule that consent given under fear or duress is ineffective: see G. Williams, Textbook of Criminal Law (2nd ed. 1983), at pp. 551-61.
37 The words of Fish J.A. in Saint-Laurent v. Hétu, 1993 CanLII 4380 (QC CA), [1994] R.J.Q.
69 (C.A.), at p. 82, aptly describe the concern which the trier of fact must bear in mind when evaluating the actions of a complainant who claims to have been under fear, fraud or duress: “Consent” is . . . stripped of its defining characteristics when it is applied to the submission, non-resistance, non-objection, or even the apparent agreement, of a deceived, unconscious or
compelled will.
McCulloch v. Murray, 1942 CanLII 44 (SCC), [1942] SCR 141
Gross negligence:
Page 145:
All these phrases, gross negligence, wilful misconduct, wanton misconduct, imply conduct in which, if there is not conscious wrong doing, there is a very marked departure from the standards by which responsible and competent people in charge of motor cars habitually govern themselves. Subject to that, I think it is entirely a question of fact for the jury whether conduct falls within the category of gross negligence, or wilful misconduct, or wanton misconduct.
Carter v. Canada (Attorney General), 2015 SCC 5 (CanLII), [2015] 1 SCR 331
Summary: The law has long protected patient autonomy in medical decision-making. Competent individuals are, and should be, free to make decisions about their bodily integrity” as it is this principle that underlies the concept of “informed consent”
Ontario Court of Appeal decision:
Fleming v. Reid, 1991 CanLII 2728 (ON CA)
Informed consent and bodily autonomy:
Part IV: The right to determine what shall, or shall not, be done with one's own body, and to be free from nonconsensual medical treatment, is a right deeply rooted in our common law. This right underlies the doctrine of informed consent. With very limited exceptions, every person's body is considered inviolate, and, accordingly, every competent adult has the right to be free from unwanted medical treatment. The fact that serious risks or consequences may result from a refusal of medical treatment does not vitiate the right of medical self- determination. The doctrine of informed consent ensures the freedom of individuals to make choices about their medical care. It is the patient, not the doctor, who ultimately must decide if treatment -- any treatment -- is to be administered.
Arbitration decision
St. Patrick’s Home Of Ottawa v CUPE, Local 2437
Summary: OHSA and medical privacy; the Employer violated OHSA. It also deals to harassment.
https://www.canlii.org/en/on/onla/doc/2016/2016canlii10432/2016canlii10432.html?resultIndex=1.
As my employer would not answer my questions, there was no informed consent. To provide informed consent, your expressed, informed and explicit consent (voluntary) must be obtained prior to treatment. Without consent it is considered assault under the Criminal Code of Canada. Consent given under fear or duress is not consent. Parties to offence 21(1) Every one is a party to an offence who (a) actually, commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it. Common intention (2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
I worked in a unionized environment and my grievance has been approved for arbitration. The Union has also filed a general grievance.
There is no privacy with the Employer’s vaccination requirements. I know the vaccination status of every employee past and present based on whether they continued to work past November 15, 2021 or not.
The employer emailed “reminders” of the vaccine policy and requirement to disclose vaccination status, however, failed to answer questions posed by myself and other employees for informed consent.
Other Information Which Contradicts the Employer’s Policy
United States: Emergency Use Authorization for Vaccines Explained
“An Emergency Use Authorization (EUA) is a mechanism to facilitate the availability and use of medical countermeasures, including vaccines, during public health emergencies, such as the current COVID-19 pandemic. Under an EUA, FDA may allow the use of unapproved medical products, or unapproved uses of approved medical products in an emergency to diagnose, treat, or prevent serious or life-threatening diseases or conditions when certain statutory criteria have been met, including that
there are no adequate, approved, and available alternatives.”
List of FDA Phase III Clinical Trials for COVID-19 Vaccine Candidates
https://clinicaltrials.gov/ct2/show/NCT04470427
Actual Study Start Date : July 27, 2020
Estimated Study Completion Date : December 29, 2022
Moderna: A Study to Evaluate Efficacy, Safety, and Immunogenicity of mRNA-1273 Vaccine in Adults Aged 18 Years and Older to Prevent COVID-19
https://clinicaltrials.gov/ct2/show/NCT04848584
Estimated Study Start Date : May 15, 2021
Estimated Study Completion Date : March 31, 2023
Pfizer-BioNTech COVID-19 BNT162b2 Vaccine Effectiveness Study - Kaiser Permanente Southern California
https://clinicaltrials.gov/ct2/show/NCT04505722
Actual Study Start Date : September 7, 2020
Estimated Study Completion Date: March 31, 2023
Janssen: A Study of Ad26.COV2.S for the Prevention of SARS-CoV-2-Mediated COVID-19 in Adult Participants (ENSEMBLE)
https://clinicaltrials.gov/ct2/show/NCT04516746
Actual Study Start Date: August 28, 2020
Estimated Study Completion Date: February 24, 2023
Astrazeneca: Phase III Double-blind, Placebo-controlled Study of AZD1222 for the Prevention of COVID-19 in Adults
Dr Celia Lourenco, Director General of Biologic and Radiopharmaceutical Drugs Directorate within Health Canada’s Health Products and Food Branch confirmed the covid-19 vaccines were still in clinical trials.
https://www.theepochtimes.com/mkt_app/exclusive-official-who-authorized-covid-vaccines-in-canada-not-consulted-on-mandate_4624418.html?utm_source=andshare
Canada: Food and Drugs Act, RSC 1985, c F-27
Interim orders
30.1 (1) The Minister may make an interim order that contains any provision that may be contained in a regulation made under this Act if the Minister believes that immediate action is required to deal with a significant risk, direct or indirect, to health, safety or the environment.
Drug and vaccine authorizations for COVID-19: List of applications received
Date published: 2021-07-09
Under the interim order, a company can submit an application for a drug or vaccine for use in COVID-19 that:
● has never been approved in Canada
● was previously approved in Canada for another use
● has been approved by a trusted foreign regulatory authority
An applicant can also file a new drug submission under the Food and Drug Regulations.
The list below includes all applications received by Health Canada for drugs and vaccines used for the COVID-19 pandemic. This list includes applications received under the interim order and those received under the Food and Drug Regulations. The current status of each application is also noted.
5. New Drug Submissions and Regulatory Authorization for Use for Moderna and Pfizer-BioNTech Products
https://hpr-rps.hres.ca/reg-content/regulatory-decision-summary-detail.php?lang=en&linkID=RDS00855
Regulatory Decision Summary - SPIKEVAX - Health Canada (Moderna)
https://hpr-rps.hres.ca/reg-content/regulatory-decision-summary-detail.php?lang=en&linkID=RDS00856
Regulatory Decision Summary - COMIRNATY - Health Canada (Pfizer-BioNTech)
https://covid-vaccine.canada.ca/info/regulatory-decision-summary-detail.html?linkID=RDS00889
Regulatory Decision Summary - AstraZeneca COVID-19 Vaccine (ChAdOx1-S [recombinant])
https://covid-vaccine.canada.ca/info/regulatory-decision-summary-detail.html?linkID=RDS00890
Regulatory Decision Summary – Janssen Covid-19 Vaccine
As per Health Canada, these covid-19 vaccines are “authorized for use”, not approved. Thus making the employer’s vaccine policy unclear.
Common to the first three authorizations: “An important limitation of the data is the lack of information on the long-term safety and effectiveness of the vaccine. The identified limitations are managed through labelling and the Risk Management Plan RMP).”
Summary
The Employment Insurance Commission, both at the first stage and the reconsideration request stage, has stated that I lost my job due to misconduct. Upon being told that my Employment Insurance claim would be denied, I specifically requested that the relevant legislation, in which they are making their decision, be included in the letter. Legislation was not included in the letter and therefore, I did not know what the Commission’s decision was based upon. I had to put in a Freedom of Information request to receive this information. I also requested the specific authority/legislation in which made my employer’s policy lawful, as required by EI legislation and Digest. This was not provided. This is extremely unprofessional, this is acting in bad faith, and clearly the agents did not have sufficient knowledge of the legislation in which to quote the legislation to make the decision. Also, the decision letters were unsigned.
The Agent that made the Reconsideration request stated that she would be using the EI Digest and the Memo dated October 19, 2021 which is not linked to legislation or regulatory amendments. She did not state that she would be using the legislation. She stated that "her hands were tied", "she follows the guidelines", "it didn't matter what information was provided, it would not change the outcome", and she believed that I had everything to fight it but she could not change the decision. Clearly the agent has not been trained and/or is not knowledgeable about the EI legislation, Digest and basic Canadian laws which state in the Digest that must be followed. We did not discuss "available for work". I left her a message later the same day regarding “available for work” but she never called back. She mailed two separate reconsideration decision letters.
According to EI Act Section 29 c (xi) and EI Digest 7.3.2.2, the Commission must determine if the employers practice was lawful or if it contravened any legal statutes. I have provided the statutes in which the Employer was contravening. Although the Commission stated that I refused an order or instruction, this is incorrect. I did not refuse. In fact, I stated over and over again that I would provide my vaccine status once I knew it was lawful for the employer to require it as a condition of employment. I asked about the legal statutes and my Employer refused to respond. I could only find acts which contravened the requirement. Clearly, the Agent for the Commission did not determine if the order or instruction contravened any legal statutes or provisions in the collective agreement. If he had, he would not have noted that I refused an order and he would have provided the legal statute.
According to Joseph A-636-85, “To prove misconduct by an employee it must be shown that he behaved in some way other than he should have. Accordingly, such an allegation is not proven simply by showing that the employer found his employee's conduct to be reprehensible, or charged him with misconduct in general terms. For a board of referees to conclude that there was misconduct by an employee, it must have before it sufficiently detailed evidence for it to be able, first, to know how the employee behaved, and second, to decide whether such behavior was reprehensible.” Coercing people to disclose their private medical information or to submit to the COVID-19 injection which is still in clinical trials (as confirmed above), and depriving them of their livelihoods and careers is not justified, and therefore cannot be reprehensible behaviour on the part of the employee.
I believe the employer is endangering my health and safety. My employer is taking on the role of my physician by telling me what medical procedure I must have to remain employed. My employer does not have the credentials to do so, therefore is endangering my life, as well as my fundamental right to medical privacy. As of today, there is no binding decision and my arbitration is pending. Disclosing private medical information is not a normal condition of work.
Based on the Commission’s definition of a breach, none of these apply to me, however, they do apply to my employer. Just because my employer breaches the employment contract, does not mean that I am in misconduct. The Commission makes a decision on Employment Insurance legislation, however, the Commission must also know the provincial and federal laws in determining misconduct. If the employer is violating any of these laws, then the employer cannot establish the unlawful rule and there is no misconduct. The EI legislation states that you must determine whether the legislation has been contravened. I have listed the Provincial and Federal Laws which have been contravened. The rules must also not violate the Collective Agreement. There is no doubt that the employers’ vaccination policy violates a multitude of laws and the Collective Agreement.
Every employee’s medical health is protected by privacy laws. Medical health and choices are private and confidential and no one is required to disclose these to anyone. The Employer does not have the lawful authority to ask about an employee’s vaccination status.
What laws or statutes did my employer rely upon to require an employee to disclose personal medical information? I have asked repetitively and they have been silent on the matter.
What laws or statutes did the Commission rely upon to require an employee to disclose personal medical information to an employer and therefore found in misconduct? I have been unable to find any legislation within the Employment Insurance Act regarding mandatory vaccination, only advised of a memo which was circulated to blanketly deny benefits. I specifically requested the legislation from both Employment Insurance Agents (initial and reconsideration), when I was advised of the decision. The specific legislation was not included in my letter.
Vaccines are defined as a “medical treatment”, the recommendation to receive an injection is defined as “medical advice” and testing is a “medical procedure”. My employer, or any employee of the City of Greater Sudbury, is neither my doctor nor specialist, therefore, unauthorized to practice medicine.
As the policy is based on guidelines, as per HR Manager, not laws, how is my conduct considered willful when the employer themselves were not following the law?
Medical privacy and informed consent are written into the Bill of Rights, Section 1 (a) and (b). How can an action be willful when an employee is asserting their rights under the law?
As written in the policy, “The policy is subject to federal, provincial, and local public Health regulations”. If they were following regulations, why would they not provide me with the regulations? Why would I later be told they were using “guidelines”? How can this be willful if the employer cannot make a clear policy? As per the Ontario Public Health Chief, there were no regulations, only a recommendation. In fact, according to the Reopening Ontario Act (ROA), all workers were exempt from vaccination. Also, Public Health stated that there was no vaccine to protect against Covid-19. So what is the purpose of disclosing my status if it doesn’t matter whether I was immunized or not? Another question my employer would not answer. If I was following the provincial and Public Health regulators, then how is my conduct considered willful?
On about 6 occasions, I advised my Manager that I would disclose my status if I was provided with the lawful authority in which personal medical information was required to be provided. I was quite willing to provide my status if what there were asking was legal. I was NOT refusing, just requesting clarity.
Immunization is not mandatory in Ontario or Canada. If immunization is not mandatory, then how is my conduct willful?
So I ask, what is the purpose of the requirement of providing personal medical information, specifically COVID vaccination status, if vaccinated and unvaccinated people can still get and transmit COVID-19? What is the reasoning of the policy when the policy fails its own Purpose and Scope to “protect the health and safety of employees from the spread of COVID-19”?
Whether I disclosed my vaccination status or not, if the Employer truly believed that the policy was reasonable and necessary, there would be transparency. The employer would have answered all questions and concerns posed by its employees. I sent 25 questions to the Executive Leadership Team, those who created the policy and therefore could answer my questions. Instead of answering the questions, I was advised to obtain legal advice and medical advice, which I had already done, thus the reason for posing the questions to them. The Executive Leadership did not answer any question.
Also, if there was NO threat to the health of their employees by requiring the vaccinations, then they would be willing to provide confirmation in writing that the employees would suffer no harm and have a fully qualified doctor take full legal and financial responsibility for any injuries occurring post-vaccine.
How ironic is it that the Employer’s values include integrity, transparency, respect, foresight, trust and compassion, and yet the same Employer rolled out the purging of fundamental rights of its Employees and Citizens without explanation or evidence. Upstanding employees, who have given years of conscientious hard work to achieve their objectives, have been pushed out for being rational, responsible persons, and defending Canadian rights.
The law does not allow a fundamental shift and make changes midstream to employment contracts.
In my discussions with my Manager, I did not take these discussions lightly. I believe in the law and the laws are there, not only to respond to injustice and harm but also to prevent injustice and harm. Every person has the right of the individual to life, liberty and security of persons, which protects the right of informed consent for medical procedures and the right to privacy. This is the whole reason I repetitively requested the lawful authority.
As per the Commission’s submission, I should have taken further steps to discuss my concerns with my Employer. I discussed, or attempted to discuss, my concerns with (I listed them all). I felt like I was talking into an abyss. I submitted a vacation requested and was refused. There was no reason to submit a request for medical leave. As for an exemption, as the assumption of the Commission is that I am unvaccinated, although the Employer had these as options, the Employer was not granting exemptions. The decision to grant an exemption was being made by a Human Resource staff who is not a medical professional nor an expert on religion. Every person whom I have spoken with and submitted an exemption request was denied. As for submitting a request for an unpaid leave, would the Commission have approved an application for regular EI benefits? I would not have required an “extension of time” if the employer could confirm the legislation in which made their requirement lawful. I also attempted to discuss my concerns by issuing a Notice of Liability to my Manager on October 28, 2021 and as well as an email advising that I would be willing to give up my right to life, liberty and protection of person if the Employer would compensate me. It didn’t matter what I tried to do, the Employer was not willing to have a discussion and provide must needed answers for informed consent.
The Employer has always followed the Province’s lead in regard to policy. The Province required disclosure of vaccination status and stated that if vaccination status was not disclosed, it would be noted as unvaccinated. The Employer could have done this. The Province allowed for testing and “education” for those deemed unvaccinated, if they worked in the office. The Employer could have done this. The Commission deemed the policy to be reasonable, when the Employer could have implemented alternative measures. (I verbally discussed the fact that they deemed the policy reasonable but would not back it up with the law, which is required by EI legislation).
The Commission did not consider the nature of my work. I communicated with clients, staff and management through email, phone, or Teams. Communication happened through these methods during the few short weeks I worked in the office and while I worked from home. There were days in the office that I didn’t see anyone, including staff. There would be minimal, if any, interference with my duties to the employer.
According to a recent decision by Paul Dusome, which has not yet been published on the Social Security Tribunal website, the Commission has the onus of proving all four elements of misconduct. The first element is whether the Claimant’s actions were wilful. The second, is whether the Claimant knew or should have known that the conduct could get in the way of carrying out the duties toward his employer. Thirdly, 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. And fourthly, the alleged misconduct caused the termination of the employment. “The Commission had to prove all four element…”
https://decisions.sst-tss.gc.ca/sst-tss/ei-ae/en/item/521599/index.do?q=Vaccine
The bar for proving misconduct is a high one. The employee must be “guilty of serious misconduct, habitual neglect of duty, incompetence or conduct incompatible with his duties” (R v Arthurs, Ex Parte Port Arthur Shipbuilding Co. [1967] 2 O.R. 49-73).
The Commission cited Tucker (A‐381-85) in the original decision as the case law for determining misconduct. In order to constitute misconduct, the act complained of must have been willful or at least of such a careless or negligent nature that one could say the employee willfully disregarded the effects his or her actions would have on job performance. Tucker used tranquilizers and was incapacitated on the job. The fact that she was impaired impacts job performance and the ability to perform job duties. This is not my case as my actions have no effect on my job performance or my ability to perform my job duties.
The Commission has cited Lemire, 2010 FCA 314 and Mishibinijima (2007 FCA 36) in the submission. In Mishibinijima (2007 FCA 36), the Court noted that there will be misconduct where the conduct of a claimant was willful, that is, in the sense that the acts which led to the dismissal were conscious, deliberate, or intentional. In other words, there will be misconduct where the claimant knew or should have known that their conduct was such as to impair the performance of the duties owed to their employer and that, as a result, dismissal was a real possibility. This claimant repeatedly failed to show up for work due to excessive drinking and could not perform his duties. As for Lemire, 2010 FCA 314, the Court noted “The misconduct must therefore constitute a breach of an expressed or implied duty resulting from the contract of employment.” He was selling contraband drugs on his employers’ property. Selling contraband drugs is an illegal act under the Criminal Code of Canada. I find it quite disturbing that the Commission is using case law which deals to illegal activities and the state of being incapacitated to the lawful right to bodily autonomy, informed consent, and privacy rights, which are lawful activities and does not impair the employee in performing their duties.
Supreme Court case Cada (AG) v Cartier: The Social Security Tribunal member stated that “the misconduct must cause the loss of employment and that it must be an operative cause. Moreover, the misconduct must be committed by the applicant while employed, and it must constitute a breach of a duty that is expressly noted or implied in the contract of employment.” If the misconduct is not a breach of a duty that is implied by the employment contract, then it is not misconduct by definition. Does my employment contract, as a duty, either specified or implied, that I must provide my vaccination status? The answer is no. Also, if it is the decision of this Court that the vaccination policy is not a change in work duties, then by you stating that, there is no misconduct.
In summation, clearly all four elements of misconduct have not been proven by the Commission, and Employment Insurance benefits should be granted retroactively.
ISSUE #2: Not Available for Work
EI Act
18 (1) A claimant is not entitled to be paid benefits for a working day in a benefit period for which the claimant fails to prove that on that day the claimant was
(a) capable of and available for work and unable to obtain suitable employment;
50(8): Proof of efforts to obtain employment
(8) For the purpose of proving that a claimant is available for work and unable to obtain suitable employment, the Commission may require the claimant to prove that the claimant is making reasonable and customary efforts to obtain suitable employment.
Digest of Benefits Entitlement Principles Chapter 10
10.1.2 Availability Defined states “Availability for work depends on a claimant’s willingness and ability to apply for, accept, take advantage of and actively seek all opportunities for suitable employment. It implies that the claimant is unable to obtain suitable employment and sincerely wishes to return to the labour market as soon as possible, as demonstrated by an active search for employment”.
As per Faucher A-56-96 , "There being no precise definition in the Act, this Court has held on many occasions that availability must be determined by analyzing three factors - the desire to return to the labour market as soon as a suitable job is offered, the expression of that desire through efforts to find a suitable job, and not setting personal conditions that might unduly limit the chances of returning to the labour market - and - that the three factors must be considered in reaching a conclusion". “Some examples of those activities are assessing employment opportunities, registering for job search tools, contacting employers who may be hiring, and applying for jobs. In addition, other criteria are used to determine what constitutes a suitable job, such as the claimant’s health and physical capacity to work.”
Facts:
I am capable of and available for work
I am making reasonable and customary efforts to obtain suitable employment
I assess employment opportunities on a daily basis
I have a prepared resume which only needs to be “tweaked” for the job posting
I have a cover letter outline completed
I am registered with the electronic Job Bank and Indeed
I check several job search sites including Indeed, OPS Careers, YMCA Career and Employment Services, Employment Options, and Wowjobs.
I also subscribe to the job search websites, Adzuna, Talent.com, jobanic, and Zigo.
I have an extensive network.
I have contacted prospective employers
I have submitted job applications
I found temporary employment
Other than a few questions from the original Agent, there has been no discussion of my job search efforts. The Commission has not requested a detailed report of my job search. The issue of “not available for work” was not discussed by the Agent at the reconsideration stage, it was not even brought up by the Agent. It was I that called her back and requested a conversation. She did not return my call.
As for my vaccination status, I did not disclose this information to the initial EI Agent, Collin. We did specifically discuss employment at the provincial and federal level. As for Provincial level employment opportunities, the Province included in their policy that anyone who did not disclose their vaccination status would be considered unvaccinated. For those employees who were unvaccinated, there were alternate solutions to keep them employed. This was noted in Employment Opportunities posted on their website. I am not sure of the Federal employment opportunities, as there have not been any postings in which I qualify, specifically, the requirement to be bilingual. Just because I spoke to government positions, did not imply that I was not looking elsewhere.
Clearly, since I had found employment, although temporary, my vaccination status does NOT pose a significant limitation in my ability to accept employment.
Conclusion
I have clearly demonstrated that I am available for work based on the Employment Insurance’s definition.
Based on the evidence provided, I am available for work and Employment Insurance Benefits should be granted retroactively.