Posted March 27, 2023:
Dr. Robin Francis, who was terminated from his employment and deemed ineligible for Employment Insurance (EI) benefits for not taking the COVID-19 vaccine, has made a special judicial review application to the Federal Court of Appeal. The Federal Court of Appeal is being asked to determine that the denial of EI benefits to Dr. Francis was unjustified and violated his Charter rights.
Dr. Robin Francis, a father of four and a PhD engineer, was respected in his workplace and had won awards and recognitions for his work. Further, Dr. Francis worked mostly from home and believed that he did not pose a health risk to anyone. On August 31, 2021, Dr. Francis received an email from his employer mandating all employees to be vaccinated against COVID-19. After the policy took effect on September 3, 2021, Dr. Francis informed his manager and HR official that, while he intended to follow all mandated sanitizing protocols, screening tests, and antigen tests, he had made the decision to not be vaccinated against COVID-19. This resulted in Dr. Francis’ termination.
After being fired, he learned that he was ineligible for Employment Insurance; the Canada Employment Insurance Commission decided that his refusal to take the COVID-19 vaccine amounted to willful misconduct. Dr. Francis received no EI which he had paid into to support his family, and he was forced to rely on his savings to make ends meet.
Dr. 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.
On March 22, 2023, counsel for Dr. Francis filed a Notice of Application at the Federal Court of Appeal in Toronto, asking the Court to review the decision of the Appeal Division of the Social Security Tribunal of Canada upholding the denial of his EI benefits.
Counsel for Dr. Francis, James Manson, states: “In my view, the Tribunal’s decision in 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. This case is different, however. Our view is that an employee’s unwillingness to comply with any workplace policy that violates their fundamental Charter rights cannot qualify as ‘misconduct’, particularly in the free and democratic society of Canada, where an enormous value is rightly placed on the rights and freedoms of the individual.”
Manson continues: “In this case, the Tribunal appears to be saying that no matter what an employer’s workplace policy requires (even if it requires an employee to do something that violates his or her Charter rights), failure to abide by that policy means that the employee must also lose their EI benefits if they are terminated by their employer. That is far too draconian a result. 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.”
Updated November 1, 2023:
On November 2, 2023, at the Federal Court of Appeal, Robin Francis’s appeal in his constitutional challenge was heard.
Unexpectedly, the panel issued a decision during the hearing, upholding the government’s denial of his EI benefits for employee “misconduct” because he did not to take the Covid shot due to his religious beliefs.