[1]Mr. André Givogue submitted a complaint (the Complaint) to the Canadian Human Rights Commission asserting that his employer, Fisheries and Oceans Canada, discriminated against him in employment on the grounds of genetic characteristics (the genetic characteristics claim) and “partial/perceived disability” (the perceived disability claim), contrary to section 7 of the Canadian Human Rights Act, R.S.C. 1985, c H-6. The alleged discriminatory act was the employer’s decision to deny Mr. Givogue workplace accommodations when he objected to disclosing his COVID-19 vaccination status. Accepting the conclusions set out in its Human Rights Officer’s Report for Decision (the Report), the Commission found that the Complaint was frivolous because it failed to establish a link between the employer’s conduct and a prohibited ground of discrimination under section 3 of the Act. Accordingly, it decided that it would not deal with the Complaint pursuant to paragraph 41(1)(d) of the Act (the Decision). The Commission also decided not to consider Mr. Givogue’s submission that the requirement that he disclose his vaccination status constituted harassment, contrary to section 14 of the Act, because he had not set out this allegation in the complaint form.

[2]The Federal Court dismissed Mr. Givogue’s application for judicial review of the Decision: Givogue v. Canada (Attorney General), 2023 FC 864, 2023 CarswellNat 7443. It held that since Mr. Givogue had failed to establish that his employer’s requirement to disclose his vaccination status was a form of genetic discrimination, the Commission had reasonably concluded that the Complaint could not succeed and that it was frivolous. The Federal Court also upheld as reasonable the Commission’s decision not to consider Mr. Givogue’s allegations of harassment. Finally, it held that the Commission had not erred by failing to consider additional documents provided by Mr. Givogue to the Commission staff, because the main submissions raised in these documents were reflected in his response to the Report (the Response), which the Commission had expressly acknowledged in its Decision.

[3]The role of this Court in this appeal is to determine whether the Federal Court identified the proper standard of review to be applied to the Decision, and whether it properly applied this standard. This requires the Court to “step into the shoes” of the Federal Court judge, focusing on the Commission’s decision: Northern Regional Health Authority v. Horrocks, 2021 SCC 42, [2021] 3 S.C.R. 107 at paras. 10-12; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paras. 45-47. We are not to dive into the facts underlying Mr. Givogue’s complaint, re-weigh the evidence that was before the Commission or make the decision that we think the Commission should have made: Tazehkand v. Bank of Canada, 2023 FCA 208, [2023] CarswellNat 5838 at paras. 26-27 [Tazehkand].

[4]Nor are we to consider claims or information that were not before the Commission when it made its decision. Mr. Givogue’s allegation before this Court that he rebuffed his employer’s attempt to force him to undergo a COVID-19 test and disclose his “test result information” does not appear in the Complaint. Rather, Mr. Givogue argued before the Commission that his employer’s decision to deny him workplace accommodations and place him on administrative leave without pay following his refusal to disclose his vaccination status constituted discrimination on the basis of genetic characteristics because, in his view, the outcome of “asking employees’ vaccination status” is equivalent to an employee “disclosing the results of a genetic test.” Similarly, the 2023 decision of the Social Security Tribunal, General Division regarding Mr. Givogue’s claim for employment insurance, to which Mr. Givogue referred in his Memorandum of Fact and Law, was not before the Commission and is therefore not properly before this Court.

[5]The Federal Court was correct to review the merits of the Decision on the reasonableness standard. In making the Decision, the Commission’s role was to assess whether the information before it was sufficient to establish a link between the employer’s conduct and the grounds of discrimination raised in the Complaint. This Court has confirmed that such screening decisions are to be reviewed on a reasonableness standard: Canada (Attorney General) v. Ennis, 2021 FCA 95, [2021] 4 F.C.R. 3 at para. 46, leave to appeal to SCC refused, 39800 (20 January 2022). Further, Mr. Givogue has not convinced us that the Decision raises a question for which the rule of law requires correctness review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 563 at para. 53 [Vavilov].

[6]In conducting reasonableness review, a reviewing court must take a “reasons first” approach that evaluates the administrative decision maker’s justification for its decision: Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, 485 D.L.R. (4th) 583 at para. 8 [Mason]. A reasonable decision is based on an internally coherent reasoning and is justified in light of the relevant legal and factual constraints that bear on the decision: Vavilov at para. 99. The party challenging a decision bears the burden to show that it is unreasonable. Mr. Givogue must satisfy this Court that there are sufficiently serious shortcomings in the Decision, such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. These flaws or shortcomings must be sufficiently central or significant to the merits of the Decision to render it unreasonable: Vavilov at para. 100.

[7]Where, as here, the Commission adopts the recommendations of its Officer in the Report for Decision, its brief reasons may be supplemented by the reasons in the Report: Syndicat des employés de production du Québec et de l’Acadie v. Canada (Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879 at 902-903; Tazehkand at para. 39.

[8]The Commission’s decision can be broken down into three parts: its decision that the genetic characteristics claim was frivolous; its decision that the perceived disability claim was frivolous; and its decision not to consider Mr. Givogue’s harassment claim. I will consider each in turn.

[9]I turn first to the Commission’s decision that Mr. Givogue’s complaint of discrimination based on genetic characteristics is frivolous under section 41(1)(d) of the Act. In my view, the Commission’s reasons for this decision, when read in conjunction with the reasoning set out in the Report, are coherent. Moreover, the decision is justified in light of the provisions of the Act, the relevant jurisprudence and the evidence before the Commission.

[10]The Officer observed in the Report that Mr. Givogue stated in the Complaint: “I fear that my genetic characteristics are being used and will be used to discriminate against me now and in the future” [emphasis added]. He noted that the Commission defined “genetic characteristics” as including disclosing the results of a genetic test. This is consistent with section 3(3) of the Act, which prescribes that “where the ground of discrimination is refusal… to disclose… the results of a genetic test, the discrimination shall be deemed to be on the ground of genetic characteristics.” Finally, the Officer concluded in the Report that, since “attesting to a vaccination status is not equivalent to revealing a genetic test,” Mr. Givogue had failed to offer, as required by the relevant jurisprudence, information or facts supporting his allegation that his employer had treated him differently based on genetic characteristics: Love v. Office of the Privacy Commissioner of Canada, 2014 FC 643, 459 F.T.R. 11 at para. 69, aff’d 2015 FCA 198, [2015] CarswellNat 4560.

[11]Mr. Givogue has not identified shortcomings in the Commission’s analysis that would render its decision unreasonable. It was open to the Commission to decide that Mr. Givogue had not offered any information or facts that could establish, as he claimed in the Complaint, that the act of disclosing his COVID-19 vaccination status revealed something about his genetic characteristics. Even if the Complaint had alleged that his employer had required him to take a COVID-19 test, information supplied by Mr. Givogue in his Response states that such tests detect the virus’s genetic material, not the genetic characteristics of the person to whom the test is administered. Based on this and other evidence before it, it was open to the Commission to conclude that Mr. Givogue had not offered information supporting his claim of discrimination on the basis of genetic characteristics.

[12]Mr. Givogue claims that the Commission committed a reviewable error by finding that it had before it sufficient information to fully understand and assess his position on the genetic characteristics claim even though it did not have access to additional information he had provided to the Commission in correspondence with Commission staff. This argument misunderstands the decision-making process established under the Act. As recently observed by this Court in Jagadeesh v. Canadian Imperial Bank of Commerce, 2024 FCA 172, 2024 CarswellNat 4133 at para. 50 [Jagadeesh], this process

[13]That is precisely what occurred in Mr. Givogue’s case. In concluding that the genetic characteristics claim was frivolous, the Commissioner relied on the Report that the Officer had prepared based on the information provided by Mr. Givogue. Mr. Givogue was afforded — and took full advantage of — the opportunity to provide a submission in response to the Report in which he reiterated the facts and arguments he viewed as crucial to establishing a link between his employer's conduct and the prohibited ground of genetic characteristics. The Commission concluded that his Response, the Complaint and the Report provided it with the information necessary to decide whether this aspect of his Complaint was frivolous. In doing so, the Commission did not make any reviewable error.

[14]I turn now to the Commission’s decision that Mr. Givogue’s perceived disability claim is frivolous under section 41(1)(d) of the Act. While this decision was not examined by the applications judge, likely because the genetic characteristics claim was the focus of the parties’ arguments before the Federal Court, Mr. Givogue continued to advance before this Court that it was unreasonable.

[15]In my view, the Commission’s decision not to deal with Mr. Givogue’s perceived disability claim does not exhibit the degree of justification, intelligibility and transparencyrequired of a reasonable decision.

[16]In the Report, the Officer dealt with this aspect of the Complaint by stating the following:

[17]In his Response, Mr. Givogue noted that the Report had mischaracterized his claim of disability-based discrimination, because he had never claimed that he had a disability that would exempt him from the COVID-19 vaccine. Rather, he had argued that COVID-19 was a serious illness and could be “considered a partial/perceived disability.” Based on the terms of the vaccination policy and other information provided to the Commission, Mr. Givogue had claimed that in light of his refusal to confirm his vaccination status, his employer assumed that he was “unwilling to be fully vaccinated.” He asserted that his employer further presumed that, as someone who was not fully vaccinated, he was more likely to contract and transmit COVID-19, and therefore presented a risk to the health of others. In this context, he argued, his employer’s decision to deny him workplace accommodations and to place him on unpaid leave was based on its perception of his increased risk to others and amounted to discrimination on the ground of perceived disability.

[18]The operative portions of the Commission’s Record of Decision read as follows:

[19]The Commission did not expressly address Mr. Givogue’s perceived disability claim beyond adopting as its own the reasons in the Report.

[20]Reasonableness is a robust form of review that highlights the need to develop and strengthen a culture of justification in administrative decision-making: Mason at para. 63. One cannot expect the Commission, when screening a complaint to decide whether it should be dealt with on its merits, to provide full and detailed reasons of the kind expected of adjudicative tribunals or courts: Rameau c. Canada (Attorney General), 2024 CAF 40, 2024 CarswellNat 607 at para. 158. However, the Commission must still provide an explanation of its reasoning on points central or significant to its decision. Its reasons, read in light of the record and with due sensitivity to the administrative screening context in which they are delivered, must be sufficient to assure the parties that their concerns have been heard, demonstrate that it actually listened to them and show it was actually alert and sensitive to the matter before it: Alexion Pharmaceuticals Inc. v. Canada (Attorney General), 2021 FCA 157, [2022] 1 F.C.R. 153 at para. 20 [Alexion], citing Vavilov at paras. 127-128, leave to appeal to SCC refused, 39858 (24 March 2022).

[21]I agree with Mr. Givogue that the reasons in the Report clearly indicate that the Officer misconstrued his argument on perceived disability. Rather than addressing whether the employer’s conduct following Mr. Givogue’s refusal to disclose his vaccination status constituted adverse differential treatment on the ground of perceived disability, the Officer asked whether Mr. Givogue had established that he actually suffered from a disability that prevented him from being vaccinated. By adopting the reasons in the Report, which did not address Mr. Givogue’s perceived disability claim, one of the two grounds expressly raised in both the Complaint and Response, the Commission did not address a core plank supporting Mr. Givogue’s position and failed to meet Vavilov’s standard of responsive justification: Mason at para. 97.

[22]Counsel for the Respondent submitted that the Report demonstrates that the Officer grappled with Mr. Givogue’s disability arguments. She argued that in reading the Report, the Court should infer that the Officer decided that the information provided to the Commission by Mr. Givogue was insufficient to establish a link between the employer’s conduct and alleged discrimination on the ground of disability because it was presented in the form of generalized arguments and media articles. Similarly, counsel for the Respondent argued that in deciding that it would not deal with the Complaint, the Commission should be taken to have considered Mr. Givogue’s Response, which included his description of his perceived disability claim. She submitted that in the absence of any reference to this claim in its reasons, the Commission should be taken to have decided that nothing in the Response convinced it that the Officer had erred when he determined the essence of the Complaint and found that there was insufficient information to establish a link between the employer’s conduct and the ground of perceived disability.

[23]Reasons must be read in a holistic and sensitive way. In the face of silence in a decision maker’s reasons on a particular point, “[t]he evidentiary record, the submissions made, the understandings of the administrator as seen from previous decisions cited or that it must have been aware of, the nature of the issue before the administrator and other matters known to the administrator may… supply the basis for a conclusion that the administrator made implicit findings”: Alexion at para. 16, citing Vavilov at paras. 94, 123. Far from being silent, the Officer’s reasons, adopted by the Commission, indicate that he misconstrued and therefore did not consider Mr. Givogue’s perceived disability claim. This Court cannot disregard the flawed basis for the Commission’s decision and substitute its own justification: Vavilov at para. 96.

[24]I am also of the view that by effectively failing to consider Mr. Givogue’s perceived disability claim, the Officer did not conduct a thorough investigation, as required by the jurisprudence of this Court: Slattery v. Canada (Canadian Human Rights Commission), 1994 CanLII 3463 (FC), [1994] 2 F.C. 574 at 591-601, 73 F.T.R. 161, aff’d 205 N.R. 383 (F.C.A.), 62 A.C.W.S. (3d) 761; Jagadeesh at paras. 28-31. Based as it was on a deficient investigation, the Commission’s decision not to deal with Mr. Givogue’s perceived disability claim was itself deficient, because the Commission was not in possession of sufficient relevant information upon which it could exercise its discretion: Jagadeesh at para. 33.

[25]Finally, Mr. Givogue has not convinced me that the Commission’s decision not to deal with allegations of harassment that were not detailed in the Complaint was unreasonable, as it is consistent with the jurisprudence of this Court: Manfoumbi-Mouity v. Canada (Attorney General), 2017 FCA 240, 2017 CarswellNat 7037 at para. 2, aff’g 2016 FC 988, 270 A.C.W.S. (3d) 833; Jagadeesh at para. 60.

[26]For the foregoing reasons, I would allow the appeal in part and remit the matter back to the Commission for re-determination solely with regards to whether Mr. Givogue’s complaint that his employer discriminated against him on the ground of perceived disability is frivolous under section 41(1)(d) of the Act.

[1] The appeal is allowed.

[2] The Appellant has shown that there were exceptional circumstances causing his delay in applying for benefits. In other words, the Appellant has given an explanation that the law accepts. This means that the Appellant’s application can be treated as though it was made earlier.^{Footnote 1}

[3] The Canada Employment Insurance Commission (Commission) hasn’t proven that the Appellant was suspended from his job because of misconduct (in other words, because he did something that caused him to lose his job). This means that the Appellant isn’t disqualified from receiving Employment Insurance (EI) benefits.^{Footnote 2}

[4] There are two issues in this appeal. First, whether the Appellant can antedate, or backdate, his application. Second, whether the Appellant was suspended from his job due to misconduct.

[5] The Appellant applied for Employment Insurance (EI) benefits on May 5, 2022. He is now asking that the application be treated as though it was made earlier, on January 24, 2022. This is called antedating (or, backdating) the application. The Canada Employment Insurance Commission (Commission) has already denied this request.

[6] I have to decide whether the Appellant has proven that he had good cause for not applying for benefits earlier or whether exceptional circumstances existed.

[7] The Commission says that the Appellant didn’t have good cause because throughout the delay period he did not act like a reasonable person in order to verify his rights and obligations. It also says there were no exceptional circumstances.

[8] The Appellant disagrees and says that he acted as soon as he became aware that he could apply for EI benefits even though he had not lost his job. The Appellant states he was suspended from his job but not terminated and was in the process of appealing that suspension when he discovered he could apply for EI benefits.

[9] The Appellant was suspended from his job. The Appellant’s employer says that he was suspended because he went against its vaccination policy: he didn’t say whether he had been vaccinated.

[10] I have to decide whether the Commission has shown that the Appellant committed misconduct.

[11] The Commission accepted the employer’s reason for the dismissal. It decided that the Appellant was suspended from his job because of misconduct. Because of this, the Commission decided that the Appellant is disqualified from receiving EI benefits.

[12] Even though the Appellant doesn’t dispute that this happened, he says that going against his employer’s vaccination policy isn’t misconduct.

[13] Can the Appellant’s application for benefits be treated as though it was made earlier on January 24, 2022?

[14] Did the Appellant get suspended from his job because of misconduct?

[15] The Appellant wants his claim for EI benefits to be treated as though it was made earlier, on January 24, 2022. This is called antedating (or, backdating) the claim.

[16] To get a claim antedated, the Appellant has to prove that he had good cause for the delay during the entire period of the delay.^{Footnote 3} The Appellant has to prove this on a balance of probabilities. This means that he has to show that it is more likely than not that he had good cause for the delay.

[17] And, to show good cause, the Appellant has to prove that he acted as a reasonable and prudent person would have acted in similar circumstances.^{Footnote 4} In other words, he has to show that he acted reasonably and carefully just as anyone else would have if they were in a similar situation.

[18] The Appellant also has to show that he took reasonably prompt steps to understand his entitlement to benefits and obligations under the law.^{Footnote 5} This means that the Appellant has to show that he tried to learn about his rights and responsibilities as soon as possible and as best he could. If the Appellant didn’t take these steps, then he must show that there were exceptional circumstances that explain why he didn’t do so.^{Footnote 6}

[19] The Appellant has to show that he acted this way for the entire period of the delay.^{Footnote 7} That period is from the day he wants his application antedated to until the day he actually applied. So, for the Appellant, the period of the delay is from January 24, 2022 to April 24, 2022.^{Footnote 8}

[20] The Appellant said that he had good cause for the delay because he did not know he could apply since he was still employed by his employer. The Appellant testified that he was on leave without pay, and not terminated, therefore he didn’t realise he could apply for EI benefits. He says he reviewed a “manager’s toolkit” that described his situation as on leave without pay but still employed. This led him to believe he could not apply for EI benefits. He also continued to work, even on January 24, 2022, until he was told to no longer work by his employer and told his employer he was ready and willing to return at any time.

[21] The Appellant said that he spent between January 24 and May 5, 2022 researching his ability to appeal the leave of absence. He also says his research and work in appealing his work situation took a great deal of mental attention and was emotionally difficult. The result of his research was that he filed a grievance and filed documents with the Canadian Human Rights Commission. It was not until May 5, 2022, when he was having a discussion with other colleagues who were on leave without pay, that he was first learned he could apply for EI benefits. The Appellant said that he applied for EI benefits as soon as he was told he could.

[22] The Appellant said that he is not a sophisticated user. He said that he has a high school diploma. He testified that the only other time he had applied for EI was when he had gone on parental leave. At that time his employer guided him through the EI benefits system, unlike in this case.

[23] The Appellant also said that there were exceptional circumstances. The Appellant said that the government relied on the exceptional circumstances due to the pandemic to bring in the vaccine policy that is at issue here. The Appellant says that covid pandemic created an exceptional circumstance for him as well. He said that if the covid pandemic is an exceptional circumstance that allows an employer to unilaterally change a work contract, then he too can rely on the exceptional circumstance of the pandemic. He says the covid pandemic was a very confusing period. Because of covid restrictions and his location outside of the city he could not attend a Service Canada location in person. He also said that he was the father of a newborn baby and another child under age 2 and that this added to his situation.

[24] Finally, the Appellant says that there is no prejudice to antedating his appeal because the Commission has already conceded that there is no issue with regard to his availability. He says that the initial reason the Commission gave for not antedating his application was because of the difficulty in showing availability. The Appellant states that this no longer applies to his case.

[25] The Commission says that the Appellant hasn’t shown good cause for the delay. It says the Appellant was aware of the EI regime as he had previously submitted a claim for parental benefits. It says the Appellant has shown his capacity for research and the ability to take necessary steps to enquire about his rights as evidenced by his grievance and human rights application. Finally, the Commission says he has not shown any exceptional circumstances that would create obstacles to applying for EI benefits.

[26] I find that the Appellant has proven that there were exceptional circumstances for his delay in applying for benefits when considering the Appellant’s situation as a whole. First, the Appellant has pointed to his lack of sophistication with the EI system and that since he was still employed did not understand that he could apply for EI benefits during his leave of absence. The Appellant’s ability to discuss his situation with others was also reduced because of the pandemic: he worked remotely from home in a rural area and he could not attend a Service Canada location in person. The Appellant was also the father of a newborn and another young child. He was worried about the loss of income to support his young family and was working on researching and appealing his leave of absence. If he was allowed back to work or his appeals had been successful, he would have not been eligible for EI benefits. Further, when he found out he could apply for EI benefits he acted that day to apply for benefits. The Appellant also points out the lack of prejudice given that the Commission has acknowledged his availability. These factors combined show that there were exceptional circumstances that combined to explain the Appellant’s delay period.

[27] The Appellant’s application for antedating his application is granted.

[28] The law says that you can’t get EI benefits if you lose your job because of misconduct. This applies when the employer has let you go or suspended you.^{Footnote 9}

[29] To answer the question of whether the Appellant was suspended from his job because of misconduct, I have to decide two things. First, I have to determine why the Appellant was suspended from his job. Then, I have to determine whether the law considers that reason to be misconduct.

[30] I find that the Appellant was suspended from his job because he went against his employer’s vaccination policy.

[31] Both parties agree that this is the reason for the Appellant’s suspension.

[32] I accept as a fact that the Appellant was suspended by his employer because his employer believed he went against the vaccination policy.

[33] The reason for the Appellant’s dismissal isn’t misconduct under the law.

[34] The EI Act doesn’t say what misconduct means. But case law (decisions from courts and tribunals) shows us how to determine whether the Appellant’s dismissal is misconduct under the Act. It sets out the legal test for misconduct—the questions and criteria to consider when examining the issue of misconduct.

[35] Case law says that, to be misconduct, the conduct has to be wilful. This means that the conduct was conscious, deliberate, or intentional.^{Footnote 10} Misconduct also includes conduct that is so reckless that it is almost wilful.^{Footnote 11} The Appellant doesn’t have to have wrongful intent (in other words, he doesn’t have to mean to be doing something wrong) for his behaviour to be misconduct under the law.^{Footnote 12}

[36] There is misconduct if the Appellant knew or should have known that his conduct could get in the way of carrying out his duties toward his employer and that there was a real possibility of being suspended because of that.^{Footnote 13}

[37] The Commission has to prove that the Appellant was suspended from his job because of misconduct. The Commission has to prove this on a balance of probabilities. This means that it has to show that it is more likely than not that the Appellant was suspended because of misconduct.^{Footnote 14}

[38] I only have the power to decide questions under the Act. I can’t make any decisions about whether the Appellant has other options under other laws. Issues about whether the Appellant was discriminated against or whether the employer should have made reasonable accommodations for the Appellant aren’t for me to decide.^{Footnote 15} I can consider only one thing: whether what the Appellant did or failed to do is misconduct under the Act.

[39] There is a case from the Federal Court of Appeal (FCA) called Canada (Attorney General) v McNamara.^{Footnote 16} Mr. McNamara was dismissed from his job under his employer’s drug testing policy.  He argued that he should not have been dismissed because the drug test was not justified under the circumstances, which included that there were no reasonable grounds to believe he was unable to work in a safe manner because of the use of drugs, and he should have been covered under the last test he’d taken.  Basically, Mr. McNamara argued that he should get EI benefits because his employer’s actions surrounding his dismissal were not right.  

[40] In response to Mr. McNamara’s arguments, the FCA stated that it has constantly said that the question in misconduct cases is “not to determine whether the dismissal of an employee was wrongful or not, but rather to decide whether the act or omission of the employee amounted to misconduct within the meaning of the Act.” The Court went on to note that the focus when interpreting and applying the Act is “clearly not on the behaviour of the employer, but rather on the behaviour of the employee.”  It pointed out that there are other remedies available to employees who have been wrongfully dismissed, “remedies which sanction the behaviour of an employer other than transferring the costs of that behaviour to the Canadian taxpayers” through EI benefits.

[41] A more recent decision that follows the McNamara case is Paradis v Canada (Attorney General).^{Footnote 17} Like Mr. McNamara, Mr. Paradis was dismissed after failing a drug test. Mr. Paradis argued that he was wrongfully dismissed, the test results showed that he was not impaired at work, and the employer should have accommodated him in accordance with its own policies and provincial human rights legislation. The Federal Court relied on the McNamara case and said that the conduct of the employer is not a relevant consideration when deciding misconduct under the Act.^{Footnote 18}

[42] Another similar case from the FCA is Mishibinijima v Canada (Attorney General).^{Footnote 19} Mr. Mishibinijima lost his job for reasons related to an alcohol dependence. He argued that, because alcohol dependence has been recognized as a disability, his employer was obligated to provide an accommodation. The Court again said that the focus is on what the employee did or did not do, and the fact that the employer did not accommodate its employee is not a relevant consideration.^{Footnote 20}

[43] These cases are not about COVID vaccination policies. But, the principles in those cases are still relevant. Further, these same principles have been affirmed in a recent Federal Court case dealing directly with misconduct based on failure to follow an employer’s vaccine policy: Cecchetto v Canada (Attorney General).^{Footnote 21}

[44] Therefore, my role is not to look at the employer’s conduct or policies and determine whether they were right in suspending the Appellant. Instead, I have to focus on what the Appellant did or did not do and whether that amounts to misconduct under the EI Act. 

[45] The Commission says that there was misconduct because:

[46] The Appellant says that there was no misconduct because:

[47] I find that the Commission hasn’t proven that there was misconduct because the Appellant could not have known or could not reasonably have known that he could be suspended because of his conduct.

[48] There is no dispute that the Appellant was aware of the employer’s policy. He knew that he was required to attest to his vaccination status and be vaccinated against covid or have an approved exemption under the policy. But he was not given the time to comply with the policy.

[49] The Appellant’s accommodation request was verbally denied on January 21, 2022 and he was placed on a leave of absence three days later on January 24, 2022. The Appellant was not given two weeks, pursuant to the policy, to chose to comply or chose to violate the policy.

[50] It is well established that a deliberate violation of the employer’s policy is considered misconduct within the meaning of the Employment Insurance Act.^{Footnote 22}

[51] In this case, there is no indication that the Appellant deliberately violated the employer’s policy before he was suspended on January 24, 2022. Up to that point the Appellant had followed the steps in the policy to apply for an exemption and had supplied his manager with the reasons for that request in accordance with the policy. This tells me that the Appellant attempted to comply with the policy.

[52] The Appellant only knew that he was not in compliance with the policy when his manager told him his request for an exemption was denied on January 21, 2022.

[53] But, the employer didn’t give him an opportunity to meet the other policy requirements – attesting to being fully vaccinated – before he was suspended from his job. In addition, the Appellant’s manager said he would provide him more details about the accommodation denial when he had the information. This could have meant that the Appellant would have a further opportunity to clarify his exemption request.

[54] For the Appellant’s conduct to be misconduct within the meaning of the Employment Insurance Act, he must have wilfully committed the conduct. The conduct in question is that the Appellant did not comply with the employer’s covid vaccination policy.

[55] In my view, the Appellant did not wilfully act in non-compliance with the policy before he was suspended from his job on January 24, 2022.

[56] Even though he would not disclose his vaccination status,^{Footnote 23} the policy considers that a non-vaccinated person can be in compliance if they have an approved exemption. The Appellant had asked for an exemption. His exemption request was denied three days before his suspension and there was communication from his manager that further information might be forthcoming.

[57] Before the Appellant’s exemption request was denied, the Appellant could not have known, nor could he have reasonably known, that he could be suspended for his conduct. There was also some indication that the door to the exemption request was not fully closed. Even if it was, he should have had two weeks to consider whether or not to comply with the policy and disclose his vaccination status. So, I find the Appellant was not wilfully non-compliant with the employer’s policy at the time he was suspended from work.

[58] Based on my findings above, I find that the Appellant was not suspended from his job because of misconduct.

[59] This is because the Commission has not shown that the Appellant’s actions were wilfully non-compliant with the employer’s policy.

[60] The Appellant has shown that there were exceptional circumstances and that therefore his EI benefits application should be antedated.

[61] The Commission hasn’t proven that the Appellant was suspended from his job because of misconduct. Because of this, the Appellant isn’t disqualified from receiving EI benefits.