B.C. health executive fired for refusing COVID-19 vaccine loses EI appeal

VANCOUVER — A Federal Court judge has dismissed an appeal by a “deeply religious” British Columbia health executive who said he was wrongfully denied employment insurance after being fired three years ago for refusing to get the COVID-19 vaccine.

Darold Sturgeon was fired as executive director of medical affairs for Interior Health in November 2021 after refusing to get the vaccine based on his Christian beliefs.

He applied for employment insurance benefits but was denied due to being fired for “misconduct,” with appeals to two levels of the Social Security Tribunal also failing, leading him to seek a judicial review in Federal Court in August 2023.

The ruling says Sturgeon believed the tribunal should have examined his assertion under the Charter of Rights and Freedoms that the term “misconduct” did not apply to his case “because he was exercising his freedom of religion.”

Justice William Pentney found that “recent, abundant and unanimous case law” defined a specific and narrow role for the tribunal’s appeal divisions, focusing on an employee’s conduct, and not justification for an employer’s policies or compliance with the Charter.

Sturgeon’s appeal fell “outside the mandate” of the tribunal and he could have challenged Interior Health’s mandatory vaccine policy “through other avenues,” the judge ruled.

Pentney said those included advancing a Charter claim, lodging a wrongful dismissal suit or labour grievance, or complaining to the “British Columbia Human Rights Commission.” The office of the British Columbia Human Rights Commissioner separately clarified that such a complaint would have to be lodged with the British Columbia Human Rights Tribunal.

“The point is, there were other avenues available to pursue the Charter question; this decision does not cut off the only avenue of relief,” the ruling says.

Sturgeon said in an interview Tuesday that he was “actually quite concerned that the judiciary or the judicial system has not been able to protect my Charter rights.”

He said finding a lawyer to represent him was too costly for the small amount of money the benefits would’ve offered because he found a new job about five months after being fired.

“I’m basically doing this for the underdog, for those that are not able to fight the system or to defend their own charter rights,” he said. “And so I took it upon myself to almost do this as a hobby, to learn the law, to represent myself and to plead my case.”

Sturgeon said the process was stacked with multiple layers of submissions, denials and reconsiderations before making it before the court. Where he went wrong, he said, was that his Charter challenge was only brought up “indirectly” and he didn’t “fully outline” it while before the tribunal’s appeal division.

He said he was following his “moral conscience” as a devout Roman Catholic to refuse the vaccine over the use of fetal cells in its development, and he didn’t think “misconduct” applied in his case. He said he was an administrative employee who worked remotely.

Sturgeon said he doesn’t know if appealing the decision would be worth it given tight deadlines to file, but cases similar to his were going to the Federal Court of Appeal.

“I think they will fight the good fight and, and try to see if somebody gets justice and truth out there,” he said. “I don’t blame my employer for implementing what they thought at the time was the right thing.”

The judge found that “no one has doubted that (Sturgeon) acted based on his understanding of his religious obligations,” and that he had “ably advanced his arguments.”

“However, despite his sincere and thoughtful arguments, the binding jurisprudence requires that I find against him,” the ruling says.

Sturgeon said he knew other workers who were fired for the same reason, and noted it was “extremely costly” to hire a lawyer and “extremely time consuming” to go it alone.

“I was in a leadership position at Interior Health and I was aware of staff like a single mom that has children in a mobile home that lost her job because of this decision and she received no severance, just like me, and she received no employment insurance,” he said. “She has no voice. She lost all her benefits at Interior Health and she had no voice. So who’s going to fight for her?”

This report by The Canadian Press was first published Nov. 26, 2024.

Darryl Greer, The Canadian Press