Unvaccinated engineer appeals decision to deny him EI benefits

An unvaccinated Ontario engineer, Dr. Robin Francis — represented by the Justice Centre for Constitutional Freedoms — wants the Federal Court of Appeal to assess whether his denial of EI benefits constituted a Charter rights violation.

Unvaccinated engineer appeals decision to deny him EI benefits
Justice Centre for Constitutional Freedoms
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Dr. Robin Francis, a father of four and a Ph.D. engineer, received accolades from his workplace after garnering praise and winning awards for his work. Francis worked mostly from home and believed he did not pose a health risk to anyone in choosing not to get the COVID jab.

According to the Justice Centre, his employer, London Health Sciences Centre (LHSC), sent an email on August 31, 2021, mandating all employees get the COVID vaccine. After the policy took effect on September 3, 2021, Francis informed his manager and HR official he intended to follow all mandated sanitizing protocols, screening tests, and antigen tests but told them he would not get the jab.

Francis submitted an affidavit to the LHSC soon after, requesting a human rights exemption that ultimately went ignored, resulting in his termination that October.

After being fired, he learned he did not meet the eligibility requirements for Employment Insurance (EI). The Canada Employment Insurance Commission decided his refusal to take the COVID vaccine amounted to willful misconduct. 

Francis unsuccessfully challenged the denial of his EI benefits through the internal process of the Canada Employment Insurance Commission and then the Social Security Tribunal of Canada.

Ultimately, Francis received no EI — which he paid into — to support his family, forcing him to rely on his savings to make ends meet.

On March 22, 2023, Justice Centre lawyers filed a Notice of Application at the Federal Court of Appeal on behalf of the decorated engineer. Francis asked the Court to review the decision of the Appeal Division of the Social Security Tribunal of Canada that upheld the denial of his EI benefits.

The Federal Court of Appeal application noted that the Tribunal rejected the claimant's arguments on February 17, 2023. Counsel James Manson said he expects a review or decision later this year.

Manson said regardless of the decision, he could see this case heading to the Supreme Court of Canada to decide what constitutes misconduct when "your fundamental rights and freedoms are involved."

"This case is deeply concerning."

"In most cases, employee 'misconduct' — as contemplated by federal legislation — can and should result in an employee losing their entitlement to Employment Insurance benefits," said Manson.

"However, this case is different." 

According to the Justice Centre, an employee's unwillingness to comply with workplace policy that violates their fundamental Charter rights cannot qualify as misconduct. 

Manson adds that free and democratic societies should place "enormous value" on individual rights and freedoms.

However, he asserts the Tribunal appears to mandate compliance with workplace policy, even if it violates Charter rights. Failing to abide by that policy means the employee loses their EI benefits if terminated by their employer.

"That is far too draconian," claims Manson. 

"It simply does not accurately reflect the state of the law in Canada on this issue, and I am confident that the Federal Court of Appeal will agree."

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  • By David Menzies

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