A West Kelowna resident who was fired by Interior Health (IH) for refusing to get the COVID-19 vaccine has had his appeal dismissed by the Attorney General of Canada.
In a Mar. 3 decision, Darold Sturgeon’s appeal was dismissed without costs after he didn’t continue to file a Notice of Constitutional Question and initiate the Social Security Tribunal’s Charter appeal process, or at least by raising it in his application to the Appeal Division.
On Nov. 16, 2021, Sturgeon lost his job with IH after refusing to get the Covid vaccine due to his religious beliefs. After the provincial health officer required all health workers to receive the vaccine, Sturgeon had until Nov. 15, 2021, to get vaccinated. He was let go the next day.
Just under six months later, Sturgeon’s application for employment insurance (EI) was denied by the Canada Employment Insurance Commission (The Commission) because he lost his employment “due to his own misconduct” due to his non-compliance with IH’s policy. He applied for reconsideration, which was also dismissed.
After this, the West Kelowna resident appealed to the Social Security Tribunal – General Division. He argued “that what he did could not amount to misconduct because the burden for misconduct is high, that his single act of not consenting to receiving COVID-19 vaccines had no impact on his ability to carry out his duties, that he had personal safety concerns and sincerely held religious beliefs that should have been considered by the employer in the enforcement of its policy, and that the vaccination policy was not in place when he was hired.”
The General Division ruled its jurisdiction was limited but said The Commission’s focus must be on the act or omission by Sturgeon, not whether he believes the policy is reasonable or fair.
“On the basis of these principles, the General Division had no trouble concluding that Mr. Sturgeon knew about the vaccination policy, and that his choice not to get vaccinated was conscious, deliberate, and intentional,” reads the decision. “Not being in compliance with his employer’s policy, he could not go to work and carry out his duties, and that is misconduct.”
Furthermore, The General Division also rejected Sturgeon’s argument based on religious beliefs. Sturgeon argued IH’s policy was an infringement on his rights laid out in the Canadian Charter of Rights and Freedoms. The General Division reminded Sturgeon that these laws are enforced by different courts and tribunals. In this case, Sturgeon never challenged any part of the Employment Insurance Act.
Sturgeon then sought to leave his appeal with the Social Security Tribunal Appeal Division, “on the basis that he had been denied procedural fairness and that the General Division had erred in not accepting his post-hearing submissions containing a Notice of Application for judicial review in an unrelated matter.”
On July 14, 2023, the Appeal Division refused leave for Sturgeon’s appeal because the “appeal had no reasonable chance of success,” stating his right to procedural fairness was not infringed. Additionally, he couldn’t succeed in arguing that the General Division made a mistake because it didn’t accept his post-hearing submissions.
The Federal Court found that the Appeal Division didn’t make an error in denying the leave to appeal either.
“On the basis of the extensive case law with respect to the denial of EI benefits for failure to comply with an employer’s COVID-19 policies, the Court stressed the narrow role played by the Social Security Tribunal in those matters, and reiterated that the focus must be the conduct of the employee and not the justification for the employer’s policy or its compliance with the Charter,” reads the decision.
Sturgeon tried to argue that there is a “crucial distinction” between his case and other law cases “because he is not seeking to challenge the employer’s policy but rather the failure of both divisions of the Social Security Tribunal to interpret the concept of “misconduct” in light of the freedom of religion guaranteed by paragraph 2(a) of the Charter.”
Tuesday’s decision by the Attorney General of Canada stated that “neither the Appeal Division nor the Federal Court erred by declining to consider the appellant’s Charter arguments.”
This is because Sturgeon didn’t advance any Charter claim in his appeal submissions to the Appeal Division. Also, he didn’t raise the argument or articulate the notion of misconduct.
“Mr. Sturgeon’s argument was rather aimed at the validity of the employer’s policies, not at the interpretation of the Act itself,” reads the decision.
The decision by the Appeal Division was reasonable, said Chief Justice Yves de Montigny.
“It considered the [Sturgeon’s] argument that he was denied procedural fairness by the Commission not attending the General Division hearing, and by the General Division not accepting his post-hearing submissions, and came to the conclusion that neither of these arguments had a reasonable chance of success,” said de Montigny. “Like the Federal Court, we find that the Appeal Division’s decision was reasonable in light of Mr. Sturgeon’s arguments, the General Division decision, the law, and the facts.”
Sturgeon had the chance to put his Charter argument forward by filing a Notice of Constitutional Question and initiating the Social Security Tribunal’s Charter appeal process, or at least by raising it in his application to the Appeal Division. Something he did not do.