Worker filed religious exemption one day before deadline and the court was unmoved
An Air Canada employee who waited until the day before her employer's vaccination deadline to file a religious-accommodation request has lost her bid for Employment Insurance benefits, with the Federal Court reaffirming that asking for an exemption is not the same as receiving one.
In a May 1, 2026, decision, Mr. Justice Sébastien Grammond dismissed Tatiana-Alex Pagano's application for judicial review, and awarded costs to the Attorney General of Canada. Pagano had been placed on unpaid leave from Air Canada after failing to comply with the airline's mandatory COVID-19 vaccination policy, and the Social Security Tribunal had disqualified her from EI on the basis of misconduct.
The vaccination deadline that ran out
Air Canada issued its vaccination policy on August 25, 2021. Employees had to report their status through an internal tool, receive a first dose by September 8, a second dose by October 16, and be fully vaccinated by October 30. The policy warned that non-compliance could result in consequences "up to and including unpaid leave or termination." It also offered a process for exemption requests, including on religious grounds.
Pagano submitted her religious-exemption request on October 30, with supporting documentation following on November 12. Air Canada placed her on a leave of absence effective October 31, 2021, and denied the exemption request on November 15.
The General Division of the Social Security Tribunal found she was disqualified under subsection 30(1) of the Employment Insurance Act because she had lost her job due to misconduct. The Appeal Division denied leave to appeal, and Pagano turned to the Federal Court.
Asking is not the same as receiving
Pagano argued she had complied with the policy by requesting an accommodation, leaning on a clause that read: "Until Air Canada directs otherwise, employees requesting accommodation do not need to be vaccinated or record their status via our Vaccination Status Reporting Tool." She said the Appeal Division had read the policy in isolation rather than as a whole.
Grammond rejected that view. He held that the Appeal Division had reasonably concluded "a mere request for accommodation did not amount to compliance with the Policy. Contrary to Ms. Pagano's submission, this interpretation does not render the exemption clause meaningless. An employee may request an exemption but must do so sufficiently ahead of time to be able to receive the vaccine if the exemption is denied."
He also noted that the specific clause Pagano emphasized had not been raised before the General Division or Appeal Division, and a decision-maker is not required to address arguments that were not "squarely put before them."
Misconduct, not just cause
Pagano's second argument was that the Appeal Division should have analyzed whether she had "just cause" to leave under section 29 of the Act, citing factors such as "working conditions that constitute a danger to health or safety" and "significant changes in work duties." Grammond found that argument did not engage, because Pagano was suspended rather than having resigned. Misconduct and just cause, he wrote, are two separate grounds of disqualification.
He pointed to 16 Federal Court of Appeal decisions in the past three years upholding EI denials in materially similar vaccination cases, which together hold that knowingly breaching an employer's vaccination policy amounts to misconduct under section 30 and that the Tribunal cannot review the merits of the employer's policy.
The court emphasized that “it is not the Appeal Division's interpretation of the Policy that undermines the exemption clause, but the timing of Ms. Pagano's request.”
