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Appeal-Judicial Review - Fairness - Limiting Submissions

. Francis v. Canada (Attorney General)

In Francis v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered (and upheld) a JR "of a decision of the Appeal Division of the Social Security Tribunal" regarding an employment insurance benefits denial. The material facts were that the employee "refused to comply with the employer’s mandatory policy to obtain a COVID-19 vaccination".

These quotes consider a late filing of case law, which case law was not mentioned by the tribunal:
[2] The benefits were denied pursuant to s. 30 of the Employment Insurance Act, S.C. 1996, c. 23. This section provides that an employee is disqualified from receiving employment insurance benefits if the employee loses employment due to misconduct.

[3] The applicant was dismissed by his employer on the ground that he refused to comply with the employer’s mandatory policy to obtain a COVID-19 vaccination. The applicant had requested an exemption from the policy based on creed but the employer denied this request.


[10] With respect to the policy, the applicant referred to an unreported decision of the General Division in which the facts, according to the applicant, are identical to his own. In that decision, the General Division decided that there was no misconduct. The applicant sent the unreported decision to the Social Security Tribunal after the hearing and before the Appeal Division issued its decision. The decision was not referred to in the Appeal Division’s reasons.

[11] The applicant submits that failing to mention the unreported decision renders the Appeal Division’s decision unreasonable and demonstrates a lack of procedural fairness because the unreported decision is not mentioned in the reasons.

[12] We disagree that the Appeal Division was obliged to refer to this decision. We note in particular that the facts in that decision are significantly different from the facts in this case.


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Last modified: 03-11-23
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