OCLA Executive Director Joseph Hickey has filed jurisdictional arguments in his appeal to the Social Security Tribunal of Canada (SST) against the federal government’s decision to deny him Employment Insurance (EI) benefits.
Hickey’s submissions to the SST, dated Nov. 24, 2022, can be read here: https://ocla.ca/wp-content/uploads/2022/11/2022-11-24-Hickey-SST-jurisdiction-posting.pdf
Hickey was employed as a Data Scientist at the Bank of Canada and was placed on unpaid leave in November 2021 for refusing to receive a COVID-19 vaccination. The Bank of Canada is a Crown corporation subject to the federal government’s vaccination mandate. (Hickey and the Bank have since mutually agreed to resolve all outstanding issues.)
The Canadian Employment Insurance Commission (CEIC) rejected Hickey’s request for EI benefits, deciding that his refusal to be vaccinated constituted “misconduct” under the Employment Insurance Act, thus disqualifying him from EI, even though at the time Hickey was pursuing a duly brought and active appeal with his employer of the refusal to exempt him from vaccination. (See the CEIC’s representations to the SST in Hickey’s appeal, here.)
Hickey argues to the SST that the “misconduct” provisions of the EI Act and their application to him are unconstitutionally vague in that refusing a dangerous medical intervention cannot be interpreted as “misconduct” justifying depriving a citizen of government assistance or service.
Hickey also argues that “misconduct”, which is not defined in the EI Act, cannot possibly include refusing to comply with government policies or directives that infringe one’s rights under the Canadian Charter of Rights and Freedoms.
Hickey’s Nov. 24 submissions concern the SST’s jurisdiction to decide these constitutional issues. The CEIC will respond in writing by Dec. 26, and Hickey will have until Jan. 25 to reply, following which the SST will decide if it has jurisdiction to decide the constitutional issues raised in Hickey’s appeal.
Update: The CEIC’s response, dated Dec. 23, 2022, can be read here.
Update: Hickey’s reply and Amended Notice of Constitutional Question, dated Jan. 24, 2023, can be read here.
Update: The SST convened a hearing on Mar. 3, 2023, and asked Hickey and the CEIC to present arguments regarding the following question: “Can the doctrine of vagueness be invoked without first invoking a violation of s.7 of the Charter?” The CEIC was permitted to submit a post-hearing reply in writing, which it provided on Mar. 17, 2023. The SST will decide whether it has jurisdiction to hear Hickey’s constitutional challenge.
Update: The SST General Division decided it does not have jurisdiction to hear Hickey’s constitutional challenge of the “misconduct” sections of the EI Act. Hickey filed a request for leave to appeal to the SST Appeal Division on May 10, 2023.
Update: The SST Appeal Division requested arguments from the parties regarding whether the tribunal should apply an “exceptional circumstances” threshold for granting leave to appeal the General Division’s decision not to hear Hickey’s constitutional claim. Hickey argued that the tribunal would be exceeding its jurisdiction if it were to apply the “exceptional circumstances” test to its within-tribunal process, since the test was exclusively developed for and only has meaning in the context of a judicial review by a court. The CEIC’s arguments are here. Both parties filed their submissions on June 20, 2023.
Update: The SST Appeal Division decided to apply the “exceptional circumstances” test and not grant Hickey leave to appeal the General Division’s decision not to hear Hickey’s constitutional claim at this stage. The July 18, 2023 decision can be read here.
Update: The main hearing (hearing on merits) of Hickey’s appeal of denial of EI benefits was heard before General Division Tribunal Member Angela Ryan Bourgeois on September 12, 2023. Member Bourgeois’ decision rejecting Hickey’s appeal was issued on November 23, 2023 and can be read here.
Update: Hickey submitted his request for leave to appeal both the SST’s April 7, 2023 decision not to hear his claim that the “misconduct” provisions of the EI Act are unconstitutional in their effect pursuant to the rule-of-law doctrine of vagueness, and the SST’s November 23, 2023 decision to deny his claim for EI benefits.
