Date: 20260609

Docket: T-4504-25

Citation: 2026 FC 756

Ottawa, Ontario, June 9, 2026

PRESENT: The Honourable Madam Justice Aylen

BETWEEN:

MATTHEW BARTON

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

REASONS AND JUDGMENT

I. Introduction

[1] The Applicant was dismissed by his employer on the basis that he had failed to comply with his employer’s mandatory COVID-19 vaccination verification policy. The Canada Employment Insurance Commission subsequently rejected the Applicant’s application for employment insurance benefits on the basis that he had lost his employment owing to his own misconduct, pursuant to section 30 of the Employment Insurance Act, SC 1996, c 23. The Applicant sought reconsideration of the Commission’s decision, but the Commission maintained its position. The Applicant appealed the Commission’s decision to the General Division of the Social Security Tribunal, which upheld the Commission’s decision.

[2] The Applicant brought an application to the Social Security Tribunal – Appeal Division seeking leave to appeal the decision of the General Division. By decision dated September 25, 2025, the Appeal Division refused leave to appeal because it found that none of the Applicant’s arguments had a reasonable chance of success.

[3] The Applicant now seeks judicial review of the Appeal Division’s decision on the basis that the Appeal Division’s decision was unreasonable. For the reasons that follow, I am not satisfied that the Applicant has demonstrated any basis for this Court’s intervention. Accordingly, his application for judicial review shall be dismissed.

II. Background

[4] The Applicant was employed by PCL Constructors Canada Inc., as an Integrated Construction Technology Specialist.

[5] As a result of its contracts with the federal government, PCL enacted a mandatory COVID-19 vaccination verification policy in September 2021. Initially, Article 4 of the policy required that employees: (a) complete an online declaration that they were fully vaccinated; (b) provide evidence of a negative COVID-19 test taken within 24 hours of the commencement of their shift in the event that they were not fully vaccinated or chose not to disclose their vaccination status; or (c) provide evidence of a negative COVID-19 test once per week if they had received a vaccine dose but not enough time had yet passed to be considered fully vaccinated.

[6] However, by November 2021, the policy required that all employees be fully vaccinated, subject to certain accommodations. Specifically, Article 6 of the policy provided, in part, as follows:

6.01 Subject to Articles 7 and 8, beginning Monday, November 1, 2021, any PCL Staff who enters a PCL workplace (project site, office, or other location) is required to provide one of the following:

(a) an online declaration that they are Fully Vaccinated using the form, if the online declaration required by Paragraph 4.01(a) was not previously provided;

(b) if not Fully Vaccinated, evidence of having received a second dose of a two-dose vaccine series, or a first dose of a one-dose vaccine (Johnson & Johnson).

6.02 PCL Staff who have not complied with paragraph 6.01 will be placed on unpaid leave for no longer than 30 days to permit them to become Fully Vaccinated.

6.03 Subject to Articles 7 and 8, any PCL Staff not Fully Vaccinated as of November 30, 2021 will be subject to discipline up to and including termination for failure to adhere to PCL’s safety and ethics policies.

[7] Article 7 addressed the vaccination requirements for individuals who previously contracted COVID-19. Article 8 dealt with requests for accommodations. It provided, in part, as follows:

8.01 PCL Staff who can establish that they are not recommended for vaccination for medical reasons, or have an objection to vaccination based upon a bona fide ground under applicable Canadian human rights laws, will have their case considered on an individual basis. PCL Staff who anticipate making accommodation requests should contact their HR Manager as early as possible.

8.02 PCL will accommodate bona fide medical and other Canadian human rights-based requests for not getting Fully Vaccinated to the point of undue hardship; however there are no guarantees that PCL Staff who cannot or will not get Fully Vaccinated against COVID-19 will be able to continue working in active employment in their current position, or at all. Client requirements may also prevent PCL Staff who are not Fully Vaccinated from working at specific job sites, which could lead to a frustration of the individual’s employment contract. Each case will be considered on its own merits, in light of ethical and legal obligations to provide a safe work environment in line with public health requirements and guidelines, and applicable law.

[8] Employees, including the Applicant, were given advance notice of the implementation of the policy.

[9] The Applicant failed to provide an online declaration confirming he was fully vaccinated or provide any evidence of vaccination.

[10] On October 28, 2021, the Applicant submitted to PCL a form requesting a religious accommodation under the policy, together with supporting documentation. There is no evidence in the record before me of PCL’s response to this accommodation request.

[11] However, by letter dated November 3, 2021, PCL provided notice to the Applicant that he had been placed on an unpaid leave of absence due to his vaccination status for a maximum of 30 days to permit him to become fully vaccinated. The letter warned that if he was not fully vaccinated by November 30, 2021, he would be subject to discipline up to and including termination, subject to certain accommodation exceptions.

[12] By letter dated December 1, 2021, PCL terminated the Applicant’s employment due to his wilful failure to comply with the safety and ethics protocols set out in the policy. At the time of the termination of his employment, the Applicant was on sick leave.

[13] In August of 2024, the Applicant made an application for employment insurance benefits, which was antedated to create a benefit period commencing on October 24, 2021. There appears to be a dispute as to whether the Applicant applied for sickness benefits only, or both regular and sickness benefits. The Applicant ultimately received 15 weeks of sickness benefits, which was the maximum amount of sickness benefits available to the Applicant as of October 2021. However, the Applicant’s claim for sickness benefits is not at issue on this application.

[14] By letter dated February 28, 2025, the Commission determined that, after the Applicant received his sickness benefits, he would not be entitled to regular employment insurance benefits because he lost his employment due to his own misconduct. The Applicant sought reconsideration of the Commission’s decision, giving the following reason for his request for reconsideration:

I applied for EI sickness benefits not regular benefits. I was sick starting October 22, 2021 until March 2023. I provided all my doctors notes which included a physicians statement on page 58. This decision letter also says I was fired on October 26, 2021 “due to your misconduct”. I was fired December 1, 2021 when I was on sick leave.

[15] By letter dated June 2, 2025, the Commission maintained its decision on the issue of the Applicant’s misconduct.

[16] On June 24, 2025, the Applicant filed a Notice of Appeal with the General Division. He described the basis of his appeal from the reconsideration decision as follows:

I contacted EI (Amy) about not receiving full benefits. She informed me it was due to being fired for misconduct from PCL Contractors and is why I was not entitled to regular EI benefits. I was fired when on sick leave for not taking the covid-19 vaccines. I proved this to the SST through an appeal process. I do not believe it’s acceptable to lose full EI benefits due to being fired for misconduct regarding covid-19, especially when I was on sick leave. Furthermore, I did not appeal nor apply for this decision dated June 2, 2025 (record number 729815). Someone from EI applied for it on my behalf, which I never asked for. Also, I was informed by EI (Amy), that I appealed this decision which I was not aware of, as I only appealed my sickness EI benefits, because that was the only thing I had applied for, and it was reversed/approved. In summary, I was sick until March 2023, and I only received half my benefits due to “misconduct” (not taking 2 covid injections). I was on sick leave when they fired me. Which is another contradiction because Amy informed me that you had to be able to work to receive full benefits; however, that’s the contradiction because I was still sick. Therefore, it doesn’t make sense that someone who is able to work receives the benefit, but someone who is sick does not. Please reconsider this decision. […]

[17] By decision dated July 28, 2025, the General Division dismissed the Applicant’s appeal. The General Division noted that the Applicant did not dispute that he refused to follow PCL’s policy. Rather, the Applicant argued that the real reason that he lost his job was because he refused to disclose his personal health information, which requirement the Applicant asserted was a violation of his privacy rights under the Canada Health Act, RSC 1985, c C-6. The Applicant had also emphasized to the General Division that he was on sick leave when his employment was terminated and that the policy was no longer justified because the provincial state of emergency had been revoked.

[18] The General Division determined that the reason the Applicant lost his job was because he refused to comply with PCL’s mandatory policy. This was consistent with the contemporaneous documentation and the Applicant’s own testimony at the hearing when he testified that he was fired because he did not disclose his vaccination status to PCL.

[19] The General Division accepted that the Commission proved there was misconduct because the Applicant’s actions in failing to disclose his vaccination status were wilful and the Applicant knew or should have known that his actions could lead to his dismissal.

[20] The General Division rejected the Applicant’s arguments that the policy was unreasonable, noting that the role of the General Division is to apply the EI Act and not to rule on the legality of an employer’s policy under other laws. The General Division also considered the fact that the Applicant was on sick leave at the time of his dismissal but found that the dismissal was a result of his ongoing refusal to comply with the policy (which refusal had started before his sick leave began).

[21] On September 20, 2025, the Applicant brought an application to the Appeal Division for leave to appeal the decision of the General Division.

[22] By decision dated September 25, 2025, the Appeal Division refused to grant leave to appeal because it found that the Applicant had not shown an arguable case that the General Division had used an unfair procedure, or made a jurisdictional error, a legal error or an important factual error.

[23] The Appeal Division found that the General Division properly applied the principles of misconduct law from the jurisprudence, and considered and weighed the relevant evidence, before making a finding of fact that the Applicant’s conduct constituted misconduct because: (a) the Applicant made a deliberate choice not to comply with the policy; (b) he knew his job was at risk for doing so; and (c) PCL dismissed him because he did not follow its policy.

[24] The Appeal Division agreed with the General Division that it was not open to the General Division to consider PCL’s conduct, or the validity or legality of the policy under the Applicant’s employment contract or any other laws.

III. Preliminary Issue

[25] In their memorandum of fact and law, the Respondent requests an order amending the style of cause to name the Attorney General of Canada (rather than the Social Security Tribunal of Canada) as the Respondent. Pursuant to Rule 303 of the Federal Courts Rules, SOR/98-106, the appropriate respondent in this application is the Attorney General of Canada. The style of cause shall be amended accordingly.

IV. Issue for Determination and Standard of Review

[26] The sole issue for determination is whether the Applicant has established that the Appeal Division’s decision refusing to grant leave to appeal from the General Division’s decision was unreasonable.

[27] The standard of review for Appeal Division decisions denying leave to appeal is reasonableness [see Davidson v Canada (Attorney General), 2023 FC 1555 at para 35]. When reviewing for reasonableness, the Court must determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible and justified. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker [see Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 15, 85]. The Court will intervene only if it is satisfied there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency [see Adeniji-Adele v Canada (Citizenship and Immigration), 2020 FC 418 at para 11].

V. Analysis

[28] The EI Act establishes a public insurance program that is based on the concept of social risk. Its purpose is to preserve workers’ economic security and ensure their re-entry into the labour market by paying temporary income replacement benefits in the event of a loss of employment. The intent of Parliament is to pay benefits to individuals who, through no fault of their own, find themselves unemployed and are seriously engaged in an earnest effort to find work [see Canada (Attorney General) v Lafrenière, 2013 FCA 175 at paras 33, 35].

[29] Subsection 30(1) of the EI Act provides:

[30] Misconduct is not defined in the EI Act. Rather, the jurisprudence has confirmed that misconduct arises when the claimant’s conduct is wilful — that is, where the acts leading to the dismissal were conscious, deliberate or intentional, and bore a causal link to their employment. This definition of misconduct sets a low bar to establishing disqualifying conduct under subsection 30(1). To establish misconduct pursuant to this provision, it is enough for a claimant to understand or to be aware that dismissal was a real possibility [see Zagol v Canada (Attorney General), 2025 FCA 40 at para 28; Besley v Canada (Attorney General), 2025 FCA 47 at para 5; Mishibinijima v Canada (Attorney General), 2007 FCA 36 at para 14].

[31] In the context of vaccination policies, this Court and the Federal Court of Appeal have confirmed that the failure to follow an employer’s vaccination policy, when the employee knows that this may lead to dismissal, constitutes misconduct within the meaning of section 30 of the EI Act [see Pagano v Canada (Attorney General), 2026 FC 584 at paras 9–10, wherein Justice Grammond cites 16 of the Federal Court of Appeal’s decisions on this issue].

[32] Pursuant to subsection 56(1) of the Department of Employment and Social Development Act, SC 2005, c 34, an appeal of a decision of the General Division to the Appeal Division may only be brought if leave to appeal is granted by the Appeal Division. In order to obtain leave to appeal, an applicant is required to demonstrate at least one of the grounds of appeal enumerated in subsection 58(1) of the DESDA:

[33] The Applicant asserts that the Appeal Division’s decision is unreasonable for a number of reasons, which are primarily detailed in his Notice of Application. The crux of the Applicant’s concern is that he believes that he has been improperly labelled as someone who has been dismissed as a result of “misconduct” and that this characterization will now follow him in any future dealings with the Government of Canada.

[34] Many of the Applicant’s arguments take aim at the failure of the General Division and the Appeal Division to make a determination regarding the asserted misconduct of PCL and the legality of PCL’s mandatory policy. Specifically, the Applicant asserts that: (a) he was wrongfully dismissed by PCL as he did in fact comply with the policy; (b) it was not open to PCL to dismiss the Applicant while he was on sick leave; (c) the policy did not form part of the terms of his employment and thus could not be used a basis for finding misconduct; (d) PCL failed to make a determination on his religious accommodation request; (e) PCL repeatedly lied to the Commission when it stated that the Applicant had not submitted medical documentation; and (f) the policy violated numerous laws by requiring forced vaccination with an experimental vaccine, denying the Applicant’s religious beliefs and requiring the Applicant to disclose his personal medical information.

[35] However, the Federal Court of Appeal has repeatedly confirmed that the Social Security Tribunal is a forum to determine an individual’s entitlement to social security benefits. It is not a forum to adjudicate allegations of wrongful dismissal, whether a policy was well-founded, or to otherwise examine an employer’s conduct. As such, the only issues properly before the Social Security Tribunal were whether the employee was aware or ought to have been aware of the employer’s policy and the consequences of failing to comply with that policy, and whether he engaged in conduct which, objectively, could lead to the loss of his employment [see Sullivan v Canada (Attorney General), 2024 FCA 7 at paras 4, 6 and 7; Lance v Canada (Attorney General), 2025 FCA 41 at para 8; Palozzi v Canada (Attorney General), 2024 FCA 81 at para 6]. As such, the General Division and the Appeal Division properly determined that that it was not within their jurisdiction to consider and make a determination in relation to these issues.

[36] The Applicant asserts that he complied with PCL’s mandatory policy such that there was no basis for a finding of misconduct and, in particular, no basis to find that he wilfully refused to comply with the policy. He states that he performed regular rapid tests, masked, took temperature checks, completed a daily health questionnaire and submitted a religious accommodation request. The Applicant asserts that PCL ignored his accommodation request and that the request was not addressed by the General Division nor the Appeal Division.

[37] The main problem with the Applicant’s assertion is that he did not argue before the General Division that he had complied with the policy. To the contrary, the Applicant did not dispute before the General Division that he refused to follow the policy (see para 4 of the General Division’s decision). It was therefore not open to the Appeal Division to find that the General Division had erred in finding that the Applicant had not complied with the policy because the argument that he had, in fact, complied was not put to the General Division. It certainly would have been better had the Appeal Division expressly addressed in its reasons why the Applicant could not succeed on that argument, but its failure to do so does not render its decision unreasonable.

[38] The Applicant asserts that the Appeal Division ignored his religious beliefs, which was the basis for his refusal to obtain a vaccine. However, as has been confirmed by the Federal Court of Appeal, the test for misconduct focuses on the Applicant’s failure to comply and his awareness of the consequences. The Applicant’s reasons for non-compliance, including his religious beliefs, are not relevant to the analysis [see Nelson v Canada (Attorney General), 2019 FCA 222 at para 21; Costea v Canada (Attorney General), 2025 FCA 57 at para 5].

[39] The Applicant asserts that the Appeal Division and the General Division did not have a complete copy of the policy before them at the time they rendered their decisions, which he asserts renders both decisions unreasonable. It is not clear from the Applicant’s submissions which portion of the policy he believes the Divisions did not have. In any event, the Certified Tribunal Record (which contains the documents that were before the decision makers and was produced in this proceeding) includes a complete copy of the policy, such that I cannot accept that there is any merit to the Applicant’s argument.

[40] The Applicant asserts that neither the General Division nor the Appeal Division adequately explained how, in the circumstances, the conduct of the Applicant could have constituted misconduct or how his conduct was similar in nature to that reflected in the existing COVID-19 vaccination policy jurisprudence referenced in the Appeal Division’s decision. Given his assertions that he complied with PCL’s mandatory policy, the Applicant states that the Appeal Division’s reliance on the existing misconduct case law was misguided.

[41] Further, the Applicant asserts that when he was questioned by the Commission about his knowledge of the policy and his awareness that non-compliance could result in termination, the question was posed repeatedly and framed in a way that effectively precluded the Applicant from denying such knowledge. While he acknowledges that he knew that he “could” lose his job for non-compliance with the policy, the Applicant states that he did not know that he “would” lose his job. He asserts that the Appeal Division erred in refusing leave as there was no basis for the General Division to find that this evidence was sufficient to meet the test for misconduct.

[42] I see no error in the Appeal Division’s reliance on this Court’s and the Federal Court of Appeal’s misconduct case law. As noted above, to establish misconduct, it is enough for the Applicant to have understood or been aware that dismissal was a real possibility — i.e., that he “could” be dismissed. That was the evidence before the General Division and that evidence reasonably underpinned its misconduct finding. Moreover, the Applicant had not provided proof of vaccination or an online declaration that he was fully vaccinated, nor had he been granted a religious accommodation under the policy (despite his request having been made), as required by the policy. As such, he was not in compliance with the policy and his circumstances were akin to those reflected in the case law cited in the Appeal Division’s decision.

[43] I find that the Appeal Division’s reasons provide an internally coherent and rational chain of analysis that is justified in relation to the factual and legal constraints. The reasons refer to the well-established test for misconduct and explain why the Applicant had not identified a reviewable error in the General Division’s application of that test to the facts. The Appeal Division relied on the General Division’s reasonable findings of fact, including that the Applicant: (a) was aware of the policy; (b) did not dispute before the General Division that he was non-compliant with the policy and made a deliberate decision not to follow the policy; and (c) knew that non-compliance could lead to his dismissal.

[44] I find that the Applicant has failed to demonstrate that the Appeal Division’s decision was unreasonable. As such, this application for judicial review shall be dismissed.

[45] The Respondent has not sought their costs of this application and accordingly, none will be awarded.

 

JUDGMENT in T-4504-25

THIS COURT’S JUDGMENT is that:

1. The style of cause is hereby amended to name the Attorney General of Canada as Respondent.

2. The application for judicial review is dismissed.

3. There shall be no award of costs.

“Mandy Aylen”

 

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	T-4504-25
STYLE OF CAUSE:	MATTHEW BARTON v ATTORNEY GENERAL OF CANADA
PLACE OF HEARING:	OTTAWA, ONTARIO
DATE OF HEARING:	JUNE 2, 2026
REASONS AND JUDGMENT:	AYLEN J.
DATED:	JUNE 9, 2026

APPEARANCES:

Matthew Barton	FOR THE APPLICANT ON HIS OWN BEHALF
Rebekah Ferriss Supanki Kalanadan	For The Respondent

SOLICITORS OF RECORD:

Attorney General of Canada Gatineau, Québec

For The Respondent