Case information

Administrative law — Judicial review — Employment insurance benefits — COVID 19 pandemic — Interim order of Department of Transport Canada — Whether it is constitutional for Canada Employment Insurance Commission to deny unvaccinated person entitlement to employment insurance by relying on provisions of Transport Canada’s interim order No. 7, imposing certain restrictions on passenger vessels because of COVID 19 disease — Whether it is constitutional for Minister of Employment and Social Development Canada to issue directions to implement government’s controversial political decision concerning vaccination in workplace in order to deny all workers who do not comply with vaccination against COVID 19 entitlement to employment insurance — Whether it is in interests of public and justice for principle of estoppel to be observed by administrative decision makers — Whether it is in interests of public and justice for employees of state institutions to respect human dignity of unvaccinated persons — Whether reason concerning availability, raised in Canada Employment Insurance Commission’s decision of April 14, 2022, and maintained on July 5, 2022, relies on Employment Insurance Act and its regulations — Employment Insurance Act, S.C. 1996, c. 23.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The applicant, Mr. Otoman, is employed by a company as a deckhand for Traverse Rivière-du-Loup-Saint-Siméon. An interim order from the Department of Transport Canada required transportation sector employees to be vaccinated against COVID-19. Mr. Otoman refused to comply with that policy and stopped working. He applied for employment insurance benefits. His application was denied. He tried in vain to have that decision reviewed. The Canada Employment Insurance Commission determined that Mr. Otoman was not available to work because he was willing to accept work only as a deckhand, which limited his opportunities for obtaining employment. The administrative authorities then, in turn, denied Mr. Otoman benefits and found that he had not proved his availability. The Appeal Division of the Social Security Tribunal of Canada dismissed his application for leave to appeal those denials. Mr. Otoman applied for judicial review with the Federal Court.

The Federal Court dismissed the application for judicial review; Mr. Otoman had not demonstrated that the Appeal Division’s decision was unreasonable according to the applicable standard of proof. The review of the record showed that Mr. Otoman had not presented any evidence intended to demonstrate that he made efforts to seek suitable employment.

The Federal Court of Appeal dismissed the appeal. In its view, the Federal Court had correctly chosen reasonableness as the standard of review. Mr. Otoman’s opinion that he would probably never manage to find suitable employment did not relieve him of his obligation to actively seek employment to establish his eligibility for employment insurance.