(#1) Rizzo Analysis: E.I. Act :: Justice 4 EI Misconduct
Legislative Intent & History: Employment Insurance Act ('Just Cause')
Rizzo Analysis: E.I. Act & ‘Just Cause’ (Justice 4 EI Misconduct)
Disclaimer: This site contains the Personal Opinions of Canadian Citizens. All Claims are being Tested in Court. Until then, everything is for Entertainment Purposes only.
Legal Principles: Problem #1 (Legislative Intent & History)
Fundamental Questions (7): #3-8, #11
Grounds of Review (4): FCA §18.1(4)(a-c,f)
Vavilov Principles (2): Process & Outcome
Error #1: Rizzo Analysis, E.I. Act (‘Just Cause’ Analysis)
The Principle of conducting a ‘Rizzo Analysis’ to determine Legislative Intent is reinforced in both Statutes & Case Law. 1
“The Law shall be considered as Always Speaking […] it Shall be applied to the circumstances as they arise, so that effect may be given to the enactment according to its True Spirit, Intent & Meaning.” (‘Interpretation Act’ [§10])
“The Legislature [and Parliament] does not Speak in Vain.” (‘Carrières’ [¶28])
“Because ADMs receive their Powers by Statute, the Governing Statutory Scheme is likely to be the most salient aspect of the Legal Context relevant to a particular Decision…” ([¶108]) “…Legislative Intent can be understood only by reading the language chosen by the Legislature in light of the Purpose of the provision and the entire relevant Context… The ADM’s Task is to Interpret the contested provision in a manner Consistent with the Text, Context & Purpose, applying its particular Insight into the Statutory Scheme at issue. It cannot […] ‘Reverse-Engineer’ a Desired Outcome.” (‘Vavilov’ [¶118-21])
Since Vavilov, the SCC requires ADMs to “apply[] the ‘Modern Principle’ of Statutory Interpretation” to determine “the Intention of Parliament.” 2 (aka a ‘Rizzo Analysis’)
This section contains a Rizzo Analysis 3 of §29-34 of the EI Act,4 which governs ‘Just Cause’, Disentitlement & ‘Misconduct’ Findings when adjudicating EI Benefits Claims.
In my final [SST-AD] written arguments, I spent six pages conducting an in-depth analysis of the EI Act’s Legislative Intent & History, specifically focusing on §29(c), the ‘Just Cause’ clause. Evidence proves conclusively: there are only two valid interpretations, with only one practical application to these relevant Cases. 5
This detailed ‘Rizzo Analysis’ of the EI Act’s governing statutory scheme – based on the SCC’s binding principles of Statutory Interpretation – was completely ignored by TM Pierre Lafontaine. Worse, the fundamental requirement to Fact-Find for Just Cause has been completely avoided by TMs in our Post-COVID world. (But was common before 2019)
As an aside – albeit a fundamentally important one – Rizzo also stands for the holding that “benefits-conferring legislation […] ought to be interpreted in a broad & generous manner. Any doubt arising from difficulties of language should be resolved in favour of the Claimant.” 6 This clearly is not being done by SST TMs in C19-MM Cases. (‘COVID Mandate Misconduct’)
* (This is an important legal error that needs to be addressed by this honourable Court.) *
Since the Denial of my EI Benefits Claim (and hundreds of others) is based upon a ‘Misconduct’ finding per §30-32 of the EI Act, we need to examine the ‘Interpretation’ section §29, which begins with: “For the purposes of sections 30 to 33” [Disentitlement].
Parliament had a lot to say about the subject of ‘Just Cause’ when they inserted this specific section (Bill C-21 [1989]) & updated it (Bills C-105 & C-113 [1993]). (Legal Grounds for Entitlement, Disentitlement, Disqualification & Misconduct Findings).
The House 7 & Senate 8 each conducted detailed, dedicated investigations into EI Reform (Bill C-21), and both released ~2000 page reports, while Bill C-113 resulted in a ~700 page House Legislative Committee Report. 9 (Between these five reports, ‘Just Cause’ appears 545 times.)
Bill C-105 (1993) also resulted in a House Motion Debate over whether it was Just to completely Disentitle Claimants from EI Benefits under circumstances deemed to be ‘Just Cause’. 10
The common consensus of 10+ MPs, 5+ [Deputy] Ministers, 3 Directors, 2 Parliamentary Secretaries & numerous witnesses is clear: EI Benefits cannot be Denied to Claimants who have ‘Just Cause’ when separating from their Employment – and this explicitly includes situations when their Employers allege Misconduct ‘Contrary to Law’. (One example) 11
Hon. Pauline Browes: Minister of State: Employment & Immigration (1993-02-03)12
[15350: ¶3]: Mr. Speaker, this is the first opportunity I have had to speak in the House of Commons since being appointed to the position of Minister of State for Employment & Immigration. I am very pleased to join my colleague, the Minister of Employment & Immigration, in this ministry and I want to thank Prime Minister Mulroney for appointing me to this position. [...]
[15351: ¶10]: The evidence the [EI] Agents collect will not always be clear-cut. Clearly, there will be occasions when the evidence from one side will contradict the evidence from the other and it may be impossible to tip the scales one way or the other. In such situations the agent must draw on experience, judgment, and common sense to reach a conclusion. As I have already stated, the Benefit of the Doubt will go to the Claimant. This policy applies not only to people who Quit their jobs voluntarily, but to those whose Employers claim they were Fired for Misconduct.
Facts & Issues
What does the Home Statute – specifically the EI Act [§29(c)] – require in this situation, based on the following Claims of Fact? How must an EI Claims Adjudicator proceed?
Employer: the Employer alleges Worker ‘Misconduct’ to SC/EI (and on their ROE): [i.e.] ‘willful non-compliance’ with an important internal corporate policy. (Ignoring for now that they later argued the exact opposite under oath during Labour Arbitration…)
Worker: the Claimant alleges that the Policy in question violates multiple active & binding Laws and Breaches their Employment Contract – making it nullified & non-enforceable – thus Misconduct is not possible. The Claimant argues ‘Just Cause’ based on the EI Act §29(c)(xi/vii/ix).
(Moreover, the Contract Breach & Policy Unlawfulness are patently obvious on their face – this isn’t a ‘complex interpretive issue’ requiring ‘expertise’ – the Policy’s clear wording plainly contradicts explicit terms in both Law & Contract.)
Adjudicators: the [CEIC & SST] ADMs claim that: (1) only the worker’s side is relevant – that all investigations into the Employer’s alleged lawbreaking & contract violations are ultra vires to their Decision, and (2) that proving any alleged ‘Misconduct’ requires intentionally avoiding any fact-finding for Just Cause.
Legislation
Rizzo Analysis (Text & History): EIA §29(c) [‘Just Cause’]
Summary: 14 Factors that Canadian Parliament requires EI Benefits Adjudicators to consider when Disentitling Claimants:
What did Parliament intend when they implemented the following section[s] in the EI Act? (Part 1, §29-33: ‘Benefits: Disqualification & Disentitlement’ – in Bills C-21 & C-113)
§29 [‘Interpretation’]: “For the purposes of §30-33, [Disqualification & Disentitlement]
§29(c): Just Cause for Voluntarily Leaving an Employment or Taking Leave from an Employment exists If the Claimant had No Reasonable Alternative to Leaving or Taking Leave, having regard to all the circumstances, including:
§29(c)(xi): Practices of an Employer are Contrary to Law, [or]
§29(c)(vii): Significant Modification of Terms & Conditions respecting Wages or Salary,
§29(c)(ix): Significant Changes in Work Duties,
§29(c)(xiii) Undue Pressure by an Employer on the Claimant to Leave their Employment.
EI: Major Reform History
13 [1971] Bill C-229 (‘UIA’) => [1977] Bill C-27
=> [1990] Bill C-21 => (Lost: [1992] Bill C-105)
=> [1993] Bill C-113 (‘Temp’) => [1996] Bill C-12 (‘EIA’) 14
In 1971, Bill C-229 completely overhauled Canada’s UI Program. For the first time, it was made ‘Universal’ (read: Socialised), providing coverage to virtually every Canadian that became unemployed – for any reason – including Quitting & Involuntary Termination (‘For Cause’). This reform also created ‘Special Benefits’ for situations like Sickness, Maternity Leave, and Retirement.
In the 1980s, western nations began experiencing major economic crises, primarily due to the deindustrialisation caused by Global Free Trade. This led to serious government budgetary shortfalls and widespread unemployment, which both became political ‘hot-button’ issues. (Canada’s Net Debt/GDP ratio increased 210% from 1980 to Bill C-113: 44.9% [1980] to 94.7% [1993], while our Unemployment Rate rose 52%+: from 7.5% [1980] to 11.4% [1993].) 15
In response, Canadian institutions conducted major studies into the ‘Unemployment Problem’. This led to Bill C-21 (passed in 1990). Its primary change was to stop federal government contributions to the UI Program (direct funding), meaning it became financed by only Employer and Employee contributions (58%/42%). (This reduced its income sources from three to two.)
To compensate for this loss of program revenue, the government needed to enforce Penalties on workers who were Terminated (or who Quit), and those who “refused to accept suitable employment.” Parliament settled on a [variable] 7-12 week ineligibility penalty & an income coverage reduction, down from 60% to 50%. (These UI ‘Penalty’ changes provoked significant Debate in Parliament…)
The significant Penalties proposed (listed above), generated substantial debate about Who, How & What to Penalise. The new term ‘Just Cause’ appeared 348 times throughout their Committee Reports. ([Bill C-21] House: 186x & Senate: 162x) All of the Parliamentarians (and Witnesses) were concerned with ensuring that Penalties were not levied upon struggling, unemployed Canadians without good reason.
Joe Verbruggen: (then current ‘Director General of Insurance Policy’ in the Ministry of Employment) informed the Senate Committee that “our instructions to the legal drafters was to reflect precisely the current state of jurisprudence.” Only 5 ‘Just Cause’ Reasons were specified in Bill C-21, but he testified that the remainder were codified in Jurisprudence. 16 (There were 40 Reasons total.) 17
By 1992, the UI Program was haemorrhaging financially because it was no longer receiving any government funding (short $1.75B over two years [p.598]). To salvage the program, the government tried to insert a radical UI change into their omnibus ‘1992 Expenditure Restraint Act’ (Bill C-105) (p.629) 18 – they tried to completely Deny All Eligibility for Terminated Workers (and those who ‘Leave Without Just Cause’). Several MPs claimed this change would “save the UI Program $1B annually” (p.598, 633) by “preventing program abuse.” (6 MPs: pp.597-99, 620-21, 625, 630) 19
Many MPs expressed serious concern with blanket UI Denials. (Harsh consequences, costly appeals, devastating impact of mistakes, etc.) 2 MPs objected over ‘injustice’ (‘sentences imposed’ before ‘investigation’) (p.618-19). This policy change was frequently identified as ‘unfair’ & ‘too severe’, among other complaints. (8x: pp.595, 600, 603, 611-12, 623, 634-35 | cf. Motion: SO/81: UI [p.595])
MPs repeatedly argued that IF ‘Just Cause’ was the determining factor for complete denial of EI Benefits, it must be clearly defined before MPs would vote for it. (8x: pp.597-99, 601, 617, 628, 630-31) Many MPs warned about the consequences of relying on Jurisprudence – and costly, complicated, lengthy Appeal processes – to correct the life-altering effects of misjudgement. MPs from all three parties affirmed the need to codify all 40 specific ‘Just Cause’ Reasons into Law.
Not willing to give up on this crucial cost-saving UI Change (Full Disentitlement instead of Penalty Weeks), the PCs tried again. One month later, they tabled another omnibus supply bill: ‘Expenditure Restraint Act [No. 2]’ – for the next fiscal quarter (Bill C-113). However, they learned from C-105. They took the 40 ‘Just Cause’ Reasons found in Case Law and created Explicit Categories – 14 Reasons (in total). 20 (This is the exact same list found in the EIA §29(c) today. They also created the EI Digest Principles §6.8.1: [‘List of 40 Main Circumstances to Take Into Consideration’], based on the Jurisprudence.)
Testimony: During the Legislative Committee Hearings for Bill C-113, the following government officials provided testimony about these changes:
Gordon McFee, Director of UI Policy & Legislation, Ministry of Employment
(Hearing #1: 1993-03-08, [p.639-43]): (About the History of ‘Just Cause’: [p.642])
([ Lengthy, but informative passage. Please read all 5 pages… @[D05]: p.639-43 ])
([ Otherwise, the Legislative History of Just Cause is outlined @[D05]: p.642 ])
Norine Smith, Director General, UI Policy & Program, Ministry Employment
(Hearing #1: 1993-03-08, [p.649-53]): (Entered 1991 UI Stats in Evidence [p.650])
“Of 3M new UI Claims, >2M were people laid off […] & ~650K quit, whether with or without Cause. (A large portion was Maternity & Sickness Claimants.) Of the 650K [Quitters], 460K had Just Cause (1/40 Reasons in Case Law). 190K were without Cause or Fired for Misconduct – or <3% of All Separations.” 21
Hon. Bernard Valcourt, 22 Minister of Employment (PC) (re. Full Denial)
(Hearing #9: 1993-03-16, [p.677-92]: Clause-by-Clause Committee Debate):
“This is difficult. I have always said that this is not UI Reform; this is a fiscal measure…” ([D05]: p.681)
(NB: Temporary ‘fiscal measures’ in a Supply Bill [i.e. Confidence Vote in Parliament]‽ This ‘temporary’ ‘non-reform’ policy change – the most controversial single change in EI History – is still found in the statute today…)
Hon. Warren Allmand (MP-LPC), 23 Bill C-113: Legislative Committee
(Hearing #9: 1993-03-16, [p.712-15]: Clause 20 Debate: Total EI Denial without ‘Just Cause’)
“I have one question on this. The Department has announced – and I don’t know whether it was the Minister or Officials – that because of this Bill you expected increased violence against Officials of the Department… You already had occupations of MP’s Offices. You are going to put in certain new security measures, including back doors… To what extent have you proceeded with these new security measures, and how much will they cost?”
([ MP Allmand reminded Deputy Minister Mulder about “occupations of MP’s Offices” after announcing this change – and asked about security-related costs due to “expected increase [in] violence against officials” if approved. [D05]: p.713 ])
This proposed change was so unpopular (complete EI Denial for all Employment Separations without Just Cause), it resulted in several large Protests & Sit-Ins at MPs’ Offices. In one demonstration (Montreal: 1993-02-07), 50K protesters gathered in -25°C weather to voice their concerns. These protests were mentioned several times in Committee Testimony & House Hansards. 24
Canadian Labour Congress: (Hearing #5: 1993-03-11, [p.655-70]):
“Never in the fifty-two year history of the Unemployment Insurance program has a change of this magnitude been introduced without extensive consultation with Workers and Employers, and never without cross-country public hearings. Never have permanent changes to UI been made in an Omnibus Bill advertised as Temporary Restraint measures. […] This has Outraged Canadians. Employed & Unemployed across the country have tried to have their voices heard. [They] have braved the bitter cold expressing their opposition. The depth of this outrage was demonstrated in one of the largest marches in Montreal's history. 50,000 people filled city streets on Feb. 7, 1993.” ([D05]: p.657)
MP Vincent Della Noce (PC), 25 Parliamentary Secretary: Minister of Immigration & Multiculturalism ([C-105] House Debate: 1993-02-03, [p.626f])
“As you know, almost all Members' Offices were invaded today by Unions and groups that naturally came into our Offices without appointments, without calling, by surprise. I find it very unfortunate […] Still, they have taken over our Riding Offices and are deciding themselves when they will arrive and how long they will stay. I find that really deplorable.
The worst part is that at the Offices of some of our colleagues here on this side of the House, there were violence and arrests, believe it or not. I find that even more deplorable… I have just spoken with the Police and I received confirmation that there were violence and arrests. […] I must tell you that now that we are at this point, there have even been threats against our homes and families. I called and asked the RCMP, who seemed unaware of certain things, to do their job.
I must tell you that if there is no protection tomorrow, probably I will not be able to come to sit here. This is a Notice to those concerned! When our families are affected because of a Bill, we realize that Members are no longer free to act in the House of Commons. Groups [{i.e. Citizens}] are now dictating to the Government [{i.e. Our Elected Representatives}] what to do. That is too bad. […]
All those who came to protest in our Offices […] they were better informed when they left than when they arrived. They will probably come to see me more often. It is a pleasure for me to meet these people, as long as there are not 200 of them arriving together, because our Offices cannot accommodate that many, not to mention the disturbance for our personnel. […]
I caution the Unions looking to muddle the whole thing to be careful not to threaten our families which have nothing to do with this, our wives who have been alone for seven or eight days and our children who are truly defenseless. To these people, I say: ‘Watch out. Do Not Dare cross the threshold of my house, just in case.’ One thing is sure, my family is not responsible for this Bill.” ([D04]: p.626f)
Analysing ‘cause-and-effect’ & the ‘chain-of-events’ behind this Amendment (‘Just Cause’) proves why this clause was added to the Law. It leads to only one reasonable conclusion:
Initially, UI was available to every unemployed Canadian, even those who were Fired or Quit without Just Cause. (This was obviously too expensive so):
The Government decided to stop funding UI, to eliminate the ballooning program/budgetary cost. (‘Relieve the Taxpayer Burden’)
This funding reduction [obviously] created massive UI cost overruns: if serious changes were not made to compensate, the UI Program would fail.
Instead of acknowledging the obvious cause (removing federal government contributions 2.5 years earlier), the governing party reframed the problem as widespread ‘program abuse’ – but said that ‘penalising the cheaters’ would ‘save $1B annually’ and ‘fix the problem’.
Their solution was to completely Disentitle all ‘program abusers’ (i.e. workers who were terminated or quit ‘without just cause’). This ‘sledgehammer approach’ obviously had profound implications for the livelihood of many Canadians whose Employment had ended due to alleged ‘fault’ or [questionable] ‘cause’ – or under other ‘complicated’ – circumstances… (All those deemed ‘with Just Cause’) (Ergo):
Many MPs (from All Opposition Parties) refused to pass this ‘all-or-nothing’ Amendment until proper safeguards were instituted, to protect Canadians who did have ‘Just Cause’ for Leaving their Employment.
The result was the codification of 14 ‘Just Cause’ Reasons into the EI Act (from established Labour Jurisprudence). Claimants could not be Denied EI If they met [one of] these ‘Just Cause’ criteria.
Simultaneously, ‘Benefit of the Doubt’ was explicitly awarded to the Claimant [by Law] in nebulous circumstances, or where there were problems on both sides of the ‘Just Cause’ Fact-Finding exercise. (i.e. where ‘fault’ could not be clearly attributed to only one party…)
The entire reason why the ‘Just Cause’ clause was added to the EI Act was to protect the livelihood of Canadians who were ‘not at fault’ for their Employment Separation – when Parliament added Penalties to the Act. (i.e. It ensured that workers who Leave with Just Cause will receive EI.)
There is only one effective reason & Interpretation for the ‘Just Cause’ clause: §29(c) – it is intended [by Parliament] to be the determining factor as to whether someone either Receives or is Denied EI Benefits (i.e. is ‘Disqualified or Disentitled’) when their Employment ends – based on whether there are legally–justifiable reasons for Separating from Employment. (Both: “Voluntarily Leaving or Taking Leave” qualify during Just Cause Analysis.)
But now, EI Adjudicators speciously purport to be legally-required (‘bound by precedent’) to avoid this statutorily-mandated Fact-Finding on the basis that “the Employer alleged Misconduct.” It is trite law that “[Parliament] does not speak in-vain.” (‘Carrières’ [¶28])
Intent: Parliamentary Hansards
The following government officials made authoritative statements about ‘Just Cause’, Fact-Finding & ‘Benefit of the Doubt’ in Parliament: (Legislative Change Hansards)
Hon. Peter McCreath, 26 Parliamentary Secretary: Minister of State (Finance & Privatisation) | (C-105: House Debate, [34th Parl, 3rd Sess] Vol.12 (1993-02-03) [p.617-19])
“I want to reiterate what many of my colleagues have said. Voluntary Quitters who Quit with Just Cause will not be penalized by these proposed measures. […] If anybody is suggesting that people who Quit with Just Cause will be imperilled by this legislative proposal, they are wrong. The reasons are spelt out in the Act. […] There have been a multitude of Decisions by the Supreme Court of Canada & Federal Court listing reasons. There are 50 pages of valid reasons, of Just Cause spelt out & binding.” ([D04]: p.617 [¶8])
“If people Leave their jobs for a legitimate reason, then they should be supported. If they do not get satisfaction from their CEIC Office, I would hope, if nothing else, they would go to see their Member of Parliament and Complain. Part of the function of a[n] MP is to see that individuals get fair treatment from the system. ([D04]: p.619 [¶2])
Vincent Della Noce, Parliamentary Secretary: Multicultural/Immigration Minister
(C-105: House Debate, [34th Parl, 3rd Sess] Vol.12, (1993-02-03) [p.626-28])
“When a Claim for Benefits is submitted, UI Officers give to both the Employer and the Claimant the same chance to provide the required information. The Officer must hear both sides… Moreover – and I am sure some [from the other side] will intentionally avoid mentioning it – we give the Benefit of the Doubt to the Claimant.” ([D04]: p.626f [¶11f])
“…The Benefit of the Doubt is never given to the Employer. It is given to the second party which is the Employee. If the Employer says that the Employee went out because of Misconduct and the Employee says it is because the Employer changed his hours or because of other reasons, I can guarantee my Hon. colleague that I will fight for this person and he will not be Penalized…” ([D04]: p.628f [¶9])
Hon. Pauline Browes: Minister of State for Employment (cf. FN:11-12)
(C-105: House Debate, [34th Parl, 3rd Sess] Vol.12, (1993-02-03) [p.600-02])
([ NB: The Minister of State for Employment described how Just Cause Analysis was intended to work under the amended statutory scheme: Fact-Finding & Benefit of Doubt. ])
“…the Benefit of the Doubt will go to the Claimant. This policy applies not only to people who Quit their jobs Voluntarily, but to those whose Employers claim they were Fired for Misconduct.” ([D04]: p.601 [¶10])
Gordon McFee, Director, UI Policy & Legislation Development, Employment Dept.
(C-113: Committee Hearing #1, [34th Parl, 3rd Sess] Vol.1, Iss.1, (1993-03-08) [p.639-43])
[p.642]: “Those of you familiar with the Program are aware that in the fact-finding exercise, particularly when issues such as Voluntary Quit, Just Cause, and so on are present, the fact-finding is somewhat complicated… because there are two sides to the story. In those situations, it will sometimes arise that the Agent making the Decision does not have a clear-cut avenue to follow, given the evidence that the Agent has received from the Claimant & the Employer. In those cases where the fact-finding leads to an inconclusive Decision, the ‘Benefit of the Doubt’ will be given to the Claimant.
One concern that has been expressed was whether or not the Burden of Proof in these Cases would be put on the Claimant so they would have to go through a second kind of difficulty, having already either been forced to Quit their Job or been Fired in a case where it really wasn't their fault. Bill C-113 contains a clause that obliges Officers of the Commission to hear both versions of the story before a Decision is allowed to be made…” ([D05] p.642 [¶6f])
Julie Zahouruk-Tanner, Chief, Unemployment Insurance Policy, Employment Dept.
(C-113: Committee Hearing #1, [34th Parl, 3rd Sess] Vol.1, Iss.1, (1993-03-08) [p.644-48])
[p.646]: “...as soon as the Claimant comes through the door; that they [...] identify a situation where there might be Just Cause for Leaving the Employment, to recognize these situations and clarify any kind of conflicting information. Of course, this is where we'll be emphasizing the principles on the Benefit of the Doubt. []
[¶8]: One of the more important relationships in the Local Offices is between the Agent and the Claimant, particularly in terms of collecting the facts. The Agents are instructed to remain neutral and objective. They must always be respectful toward the Claimant, and the Agent must use discretion and judgment to obtain only as much information as necessary to make a Decision for the purposes of Unemployment Insurance Entitlement. []
…The questions have to be pertinent, and they must be asked, as the Law will be requiring us to do, of both the Employer and the Claimant. The questions are adapted to the circumstances. The Agent has to try to understand what happened…” ([D05] p.646 [¶1f, ¶8f])
[p.647]: “…It is an objective evaluation of the facts, and it must take into consideration the individual circumstances of the Claimant. It is very important that we do not label Claimants Leaving situations for any particular reason. Everyone has their own reasons and their own circumstances related to it. [] It is very important that it is individualized and not generalized. 27
They base their Decision on the Guidelines. The Act, Regulations & Jurisprudence essentially provide the frame-work for the fact-finding and the consideration of what could be considered as Just Cause for the Voluntary Leaving. The Agent assesses the credibility of the information received, weighs it, and determines on a balance of probabilities whether the Decision was with or without Just Cause. When the evidence from one side contradicts the other and no information is uncovered that would tip the scale, then the Agents are instructed that Benefit of the Doubt must always go to the Claimant.” ([D05] p.647 [¶2f])
Gordon McFee, Director, UI Policy & Legislation Development, Employment Dept.
(C-113: Committee Hearing #9, [34th Parl, 3rd Sess] Vol.1, Iss.9, (1993-03-16) [p.716])
[p.716]: “...it may be spelled out more clearly in this Legislation than it was before [they are] obliged to hear both sides of the Case before they make a Decision. In fact […] the Administrative Law requires that both Parties be heard when a Decision is made that affects one of their rights.
What happens in UI Legislation is that it is a Rights & Obligations Program. If Claimants fulfil certain obligations, they have the unfettered right to receive UI – obviously, not totally unfettered – within the confines of the Legislation. Therefore, in any kind of Contentious Claim – Voluntary Quits, Misconducts, and that kind of thing are called ‘Contentious Claims’ – the Agent is obliged by Policy, by Legislation, and by Tradition, if I may say something as maudlin as that, to get all the facts, to assess the facts.
The Agent uses the principle of preponderance of the proof or whatever in coming to a Decision. If the Decision is not clear-cut, the Benefit of the Doubt is given to the Claimant. The Agent is obliged to consider all the facts… []
I would, with respect, suggest it is not as much an issue of cross-examination. I know the point you're trying to make. I think I would prefer to describe it as hearing both sides of the story. They are absolutely obliged to get both sides of the story before they make a Decision.” ([D05] p.716 [¶2f])
Nick Mulder, Deputy Minister of Employment (Clause-by-Clause Debate)
(C-113: Committee Hearing #9, [34th Parl, 3rd Sess] Vol.1, Iss.9, (1993-03-16) [p.710])
[p.710]: “It's certainly not the policy of this Department to have anything done at anyone's whim. We look at the facts and certainly the current Legislation provides it, and this Legislation reinforces it. People document the Case, hear both sides of the story, and then make the Decision. They give the Benefit of the Doubt to the Claimant where there are ‘on the one hand/on the other hand’ situations.” ([D05] p.710 [¶1])
Bernard Valcourt, Minister of Employment & Immigration (Clause-by-Clause Debate)
(C-113: Committee Hearing #9, [34th Parl, 3rd Sess] Vol.1, Iss.9, (1993-03-16) [p.677-92])
[p.682]: “I think Canadians are reasonable people, and when I know that the Law, the UI Act, says that a person who has No Choice but to Quit a Job, No Reasonable Alternative… [] All we are saying – and the Law says so especially – is If a person has No Reasonable Alternative but to Quit, then that person is protected.” ([D05] p.682 [¶1])
[p.686, ¶11]: “The thing is that a Social Program such as UI […] is a Benefit System that is administered according to the Principles of Natural Justice, and the Burden of Proof required in instances such as this is ‘on the balance of probabilities’. He who Claims must establish the facts supporting his Claim. If the Employer claims that he Fired you for Misconduct, then he has the Burden; if you claim that you left because you had a big headache, then you have the burden of establishing your headache… []
[¶18] You ask what will happen to the person who Quits? Where will he or she go? Well, that person will not Quit his or her Job without a valid reason. And If the person has one, Cid, then he or she is protected. So who has a problem? If the person has [Just] Cause, then I have no problem, because the system is there to protect her or him. That will happen.” ([D05] p.686 [¶11 & ¶18])
When this Legislative History – and the various Committee Reports – are fully considered in-context, there are three clear observations:
This change was very contentious. Even within the majority party, MPs recognised the potential problems this change could create – and MPs from all sides acknowledged that many Canadians opposed this Amendment.
(NB: That is probably why it was inserted into an omnibus supply bill – creating a Confidence Vote in Parliament. Supply Bills are intended for temporary fiscal measures – not Policy Reform. The Minister of Employment admitted this key fact in Committee.)
MPs were careful to clarify their intentions: this change was about ‘saving UI costs’ by ‘stopping UI abuse’. Almost every MP explicitly stated the same objective: they wanted to ensure that workers with Just Cause would not be impacted by this change.
(NB: That is why this major change was initially not passed in Bill C-105. Many MPs would not vote for this change until safeguards were added to protect innocent Canadians from potential misapplication and other serious [unintended] consequences when they had Just Cause.)
Numerous MPs and Witnesses openly discussed many personal stories about Workers who were mistreated or abused at work. They also acknowledged that this change could be leveraged by unsavory Employers. There was unanimous agreement that any time Employers were acting improperly, they intended to protect the Workers. By explicitly inserting 14 Categories of ‘Just Cause’ Reasons into the Act (including Reason #11: ‘Employer Practices Contrary to Law’), they were requiring that all these situations would be investigated & weighed during Fact-Finding, whenever EI ADMs adjudicated Benefits Claims.
Application
I cannot see how it is not both an Error in Law – and Violation of the Law – to refuse to conduct ‘Just Cause’ Analysis in this Case. Both sides are clearly pointing at each other – and neither is faultless at first look.
Constructive Dismissal has always been considered Just Cause. Meanwhile, ‘Significant Changes’ to the CBA are covered under §29(c)(vii/ix).
Whenever an “Employer’s Practices are Contrary to Law” Claimants also have Just Cause per §29(c)(xi). (This is obviously true here…)
Any time it is not possible to clearly attribute ‘Fault’ to the Claimant Alone, then they receive the Benefit of the Doubt, per EIA §49(2). (“IF the evidence on Each Side of the issue is equally balanced.”)
On what grounds can the SST (or CEIC) reasonably refuse to conduct Fact-Finding for Just Cause in this situation? I clearly meet its requirements… (And ‘fact-finding’ always involves examining “documents […] such as Contracts & Collective Agreements.”) 28 ,29
(1) It is an Error in Law to claim that EIA §29(c)(xi/vii/ix) – clauses in their Home Statute – are ultra vires. This meets the Grounds of Review requirement at FCA §18.1(4)(c).
(2) The SST TMs “Acted in a way that was Contrary to Law” by refusing to Fact-Find for Just Cause. This meets FCA §18.1(4)(f).
(3) Lastly, by definition, choosing this Decision pathway for COVID-19 ‘Mandate Misconduct’ (‘C19-MM’) cases – when EI ADMs regularly conducted Just Cause Fact-Finding in Misconduct cases 30 (before 2020) and examined Employment Contracts 31 – this violates both Jurisdiction & Fairness principles. This meets FCA §18.1(4)(a/b).
Any one of these errors is sufficient grounds to find their Decision Unreasonable (per Vavilov). But with all four‽ There is no choice…
“If the Claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the Duty of Fairness.” (cf. Baker [¶26], cit. Qi & Bendahmane)
Decision
We respectfully ask this Court to Quash TM Lafontaine’s Decision on the Grounds that Legislative Intent (the Governing Statutory Scheme and Principles of Statutory Interpretation) make his Decision Unreasonable.
The EI Act requires ADMs to Fact-Find for Just Cause. Based on EIA §29(c)(xi/vii/ix), I have ‘Just Cause’ for my ‘Leave from Employment’, therefore I qualify for EI Benefits:
My Employer ‘Acted Contrary to Law’. (re. CLC §81.1, CC §398, et al)
My Employer unilaterally made ‘Significant Changes’ that breached our CBA, [while]
I always complied with our CBA.
Sources:
Statutes
[1996] Bill C-12: Employment Insurance Act (SC 1996, c.23)
History: https://parl.ca/DocumentViewer/en/35-2/bill/C-12/royal-assent/page-4
Text (PDF): https://parl.ca/Content/Bills/352/Government/C-12/C-12_4/C-12_4.PDF
[Current] EI Act: Employment Insurance Act (SC 1996, c.23)
CanLII: https://canlii.ca/t/7vtf
Justice: https://laws-lois.justice.gc.ca/eng/acts/e-5.6
‘Just Cause’ Clause (§29[c]): https://canlii.ca/t/7vtf#sec29
Hansards
[1989] Bill C-21: House Legislative Committee (HOC-3402-102)
Volume #1: https://parl.canadiana.ca/view/oop.com_HOC_3402_102_1/7
Archive: https://archive.org/details/31761117012161
Volume #2: https://parl.canadiana.ca/view/oop.com_HOC_3402_102_3/7
Archive: https://archive.org/details/31761117012153
[1989] Bill C-21: Senate Legislative Committee (SOC-3402-4)
Volume #1: https://parl.canadiana.ca/view/oop.com_SOC_3402_4_1/5
Archive: https://archive.org/details/31761117014720
Volume #2: https://parl.canadiana.ca/view/oop.com_SOC_3402_4_2/5
Archive: https://archive.org/details/31761117014712 (Part 1)
Archive: https://archive.org/details/31761117014704 (Part 2)
[1993] Bill C-105: House Debate [1993-02-03] (HOC-3403-12)
Volume #12: https://parl.canadiana.ca/view/oop.debates_HOC3403_12/543
[1993] Bill C-113: House Legislative Committee (HOC-3403-47-1)
Volume #1: https://parl.canadiana.ca/view/oop.com_HOC_3403_47_1/7
Evidence
[1989] Bill C-21: Senate Legislative Committee (SOC-3402-4-1)
[D03] 34th Parliament, 2nd Session, Volume #1, Issue #2 (p.1-56)
https://Justice4EIMisconduct.com/assets/1-Rizzo-EI-Act/D03-C21-Senate-Committee-V1.pdf
[1993] Bill C-105: House Debate [1993-02-03] (HOC-3403-12)
[D04] House Debates, 34th Parl, 3rd Sess, Vol. 12 (p. 15345-388)
https://Justice4EIMisconduct.com/assets/1-Rizzo-EI-Act/D04-C105-House-Debate.pdf
[1993] Bill C-113: House Legislative Committee (HOC-3403-47-1)
[D05] 34th Parl, 3rd Sess, Vol. 1, Iss. 1/5A/9 (1:53-68, 5A:40-55, 9:1-52)
https://Justice4EIMisconduct.com/assets/1-Rizzo-EI-Act/D05-C113-House-Committee.pdf
① Interpretation Act, [§10]: ‘Law Always Speaking’; ② Vavilov [¶108]: ‘Governing Statutory Scheme’, ③ id. [¶118-21]: ‘Statutory Interpretation’ & ‘Legislative Intent’; ④ 1985 SCC 35: ‘Carrières’ [¶28]: “The Legislature does not Speak in Vain.”
1998 SCC 837: Rizzo Shoes (Re), [¶31-35]: The SCC’s holding depended on “us[ing] Legislative History [to] determin[e] the Intention of the Legislature” + citing Hansards.
(‘DA-694-Args’) Rizzo Analysis of the Legislative History of ‘Just Cause’ in the EI Act. ([P16]: p.248-53 [ADN6-6..11], Full Arguments: [p.244-76])
(‘House-C105’) House Debates, 34th Parl, 3rd Session, Vol. 12. ([D04]: p.595-638 [Hansard: p.15345..388])
(‘House-C105’) Hon. Pauline Browes, Minister of State for Employment. ([D04]: p.600-02 [Hansard: p.15350..52])
(‘About’) Hon. Pauline Browes (MP-PC): Minister of State: Employment (ParlInfo Bio | Wikipedia)
(StatCan) Zhengxi Lin – ‘E.I. in Canada: Policy Changes’ [p.6] (Summer 1998: 75-001-XPE)
(‘EIA’) Employment Insurance Act, 1996 (SC 1996, c.23) (Bill C-12: Legislative History)
Debt/GDP Data from TradingEconomics.com (IMF); Unemployment Data from StatCan.
(‘Senate-C21-1’) Senate Committee on Bill C-21, Vol.1: Joe Verbruggen ([D03]: p.574 [¶5-10]) [I:2, p.36]
(‘House-C105’) House Debate on C-105, [MP] Guy St-Julien [PC-Abitibi]. ([D04]: p.630 [¶2]) [p.15380]
(‘House-C113’) House Committee, Bill C-113: Canada Labour Congress ([D05]: p.656 [¶2] & p.657 [¶5-6]) [V1:5A:41–5A:42] This controversial amendment was buried in a Supply Bill dropped <24h before Christmas Recess.
(‘House-C105’) House Debate on C-105, (many different MPs). ([D04]: p.595-638) [p.15350..52]
(‘House-C113’) House Committee, Bill C-113: Vol.1, Iss:5A/I:9 ([D05]: p.665-66, p.671-722) [V1:5A:50-51, V1:I9:1-52]
(‘House-C113’) The UI Policy Director (Ms. Norine Smith) evidenced that under 3% of all Benefits Claims were without ‘Just Cause’ or based on ‘Misconduct’ allegations. This is relatively insignificant considering the $B Deficit being cited as justification for implementing this major policy change (i.e. ‘preventing program abuse’). ([D05]: p.650 [V1:I9, 1993-03-08])
(‘About’) Hon. Bernard Valcourt (MP-PC): Minister of Employment (ParlInfo Bio | Wikipedia)
(‘About’) Hon. Warren Allmand (MP-LPC): Critic, Ministry of Employment (ParlInfo Bio | Wikipedia)
(‘About’) Vincent Della Noce (MP-PC): Secretary: Immigration Minister (ParlInfo Bio | Wikipedia)
(‘About’) Hon. Peter McCreath (MP-PC): Secretary: Minister of Finance (ParlInfo Bio | Wikipedia)
This “individualized not generalized” requirement was violated by the BE-Memo. (cf. Problem #5 & Error #12)
Digest Principles, §21.2.2: [‘Proving Facts: Gathering All Available Evidence’]: “Evidence is any information that tends to prove or disprove a point; it can take many forms such as: any written instrument including documents and records such as […] contracts & collective agreements.”
Digest Principles, §21.2.3: [‘Proving Facts: Evaluating the Evidence’]: “In the case of Misconduct or voluntary leaving, a Decision cannot be based solely on the Claimant's statement…” The Agent is pointed to EIA §51(b) [‘Information’]: “if information is provided, take it into account in determining the Claim.” (re. “documents relating to Misconduct claim” from the Claimant.)
In the six years prior to the pandemic (2014-01 to 2019-12), the SST Adjudicated 449 Misconduct Cases & Granted 174 based on ‘Just Cause’. (174/449=38.8%) (URL=Query)
In the six years prior to the pandemic (2014-01 to 2019-12), 365 SST-EI Decisions contain discussion about the contents of Employment Contracts & CBAs. (per the Digest Principles §21)