(#14) Templates 'Reverse-Engineer' Decisions :: Justice 4 EI Misconduct
Vavilov ¶121: Atrium Templates Facilitate 'Reverse-Engineering' Decisions
Atrium Templates (Justice 4 EI Misconduct)
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Legal Principles: Problem #7 (Atrium Templates ‘Engineer’ Decisions)
Fundamental Questions (0): (N/A)
Grounds of Review (1): FCA §18.1(4)(b)
Vavilov Principles (7): Process & Outcome
Fairness Principle & Meaningful Reasons
(a) Governing Statutory Scheme
(b) Statutory & Common Law
(c) Statutory Interpretation
(d) Evidence before Decision-Maker
(e) Submissions of the Parties
(f) Past Practices & Past Decisions
(g) Impact on Affected Individual
(Vavilov ¶121): “The ADM’s responsibility is to discern meaning & Legislative Intent, not to ‘reverse-engineer’ a desired outcome. [They] cannot adopt interpretations known to be inferior – albeit plausible – merely because th[ey] appear to be available & expedient…”
Facts & Issues
Summary: SST TMs use an ‘intelligent’ Case Management system (‘Atrium’) that inserts prewritten ‘templated’ paragraphs into their Decisions, complete with Arguments & Case Law citations (possibly based on keyword analysis). By prefilling specific Case Law & Argumentation – that “often set[s] out the legal tests” (in advance) 1 – the final dispositions of many written Benefits Decisions are effectively ‘suggested’ based on the context of the Template, which is driven by undisclosed algorithms (or TM actions).
Case Studies
As shown in CEIC v. AL, when SST TMs find that Atrium’s auto-generated content is unhelpful, inapplicable, or erroneous, they are placed in an impossible predicament: 2
Justify their departure from the pre-selected argumentation & jurisprudence, and risk being overturned for ‘inconsistency’, ‘distorted analysis’, or ‘incorrect application’.
[¶45]: “It is worth observing that, despite its flaws, the GD’s Decision contains numerous statements of the Law that are, on the face of it, correct. ([Inserted by Atrium]) In more than one section, the GD accurately summarized & cited a key legal principle, only to ignore or distort it in the analysis that followed.”
(i.e. ‘Fixing’ the Errors inserted by the Template.)
[¶46]: “At one point, the GD wrote that it could ‘only consider the behaviour of the employee’. But it then spent much of its written reasons describing how, in its view, the Claimant’s employer wrongfully and unilaterally imposed a new condition of employment.”
(If Atrium inserts are inapplicable or legally erroneous, what then?)
Remove the ‘boilerplate’ content inserted by Atrium & risk ‘policy non-compliance’: for ‘wilfully’ changing ‘deciding jurisprudence.’ (Are there consequences for this?)
Comply: Simply accept pre-existing content, knowing that it potentially leads to incorrect Decisions – ones very difficult to overcome without ‘causing problems’.
Another good example is studying how SST TMs selectively applied the KVP Test 3 to justify blanket Denials of EI Benefits. Many Claimants argued that their Employer’s MVP (Mandatory Vaccination Policy) violated their Employment Contracts (or CBAs). Prior to the pandemic, this was a strong argument – many historical Decisions contain analyses of various Contract clauses & alleged violations. 4
KVP first appeared in the C19-MM (Mandate Misconduct) context in ‘CH v. CEIC’ (2022 SST 1337) where the “Claimant argue[d] that the policy must be unreasonable because it fails the KVP Test.” The TM rejected this: “this legal test was developed in the Labour Relations context and is not applicable in the interpretation of the EI Act.” 5 (¶24, FN-26)
KVP next appeared 86 days later (2022-10-16 => 2023-01-10) in an SST Appellate Case ‘SS v. CEIC’ (2023 SST 31). 6 This time, the TM cited it to justify the employer’s breach of contract. It came complete with a detailed collection of paragraphs, case law citations & footnotes, explaining KVP – and justifying why TMs could cite it [unsolicited].
“The Claimant argues that there was no misconduct in her case because her employer’s vaccination policy represented a new condition of her employment. [] So, she says that there was no misconduct.” (¶82)
“But in what is generally known as the ‘KVP Test,’ any rule or policy can be unilaterally introduced by an employer, even if the union disagrees with it. The test arises out of Arbitrator Robinson’s Decision in Lumber & Sawmill Workers’ Union, Local 2537 v. KVP Co. The Supreme Court of Canada has endorsed the KVP Test.” (¶83)
“The KVP Test has been used in numerous labour arbitration awards, as well as in at least one recent court Decision in deciding whether an employer can unilaterally introduce a rule or policy. The discussions in those cases have been helpful.” (¶84)
There are many problems with these paras: ① KVP does not permit just ‘any unilateral’ policy impositions “even if the union disagrees with it.” ② By ‘unilaterally’ citing KVP [unsolicited] this TM is making it ‘persuasive authority’. How can it also be ultra vires?
③ Why mention the SCC & Labour Arbitration jurisprudence when both are also vires?
④ How is ‘discussion’ from non-EI Court Cases ‘helpful’ to EI ADMs, unless not vires?
⑤ It is templatized & repeated in other Decisions with the same citations & footnotes.
(e.g. 2023 SST 63: TH v. CEIC [¶44]. There are also other similar templates…)
There are four common templates re. KVP that are used by TMs: two unilaterally invoked by TMs to justify employers’ contract breaches + two rebutting Claimants who argue their MVPs breached their contracts – all with corresponding case law & footnotes. (This is “reverse-engineering desired outcomes” which Vavilov deems unreasonable.) Some TMs change a few words to customise the template, but the interlinked combination of text, citations & footnotes ‘give it away’. (e.g. KVP Used v. KVP Denied & Footnotes)
Application
These templates are diametrically opposed. Some invoke KVP, while others deem it ultra vires. Their unifying factor is that they are all used to Deny EI Benefits. Aside from the obvious Fairness violations, this ‘templatization’ provokes pressing questions:
Who wrote these boilerplate language combos? (Text + Citations + Notes)
Did the same person compose both sets of legally conflicting templates?
Who knowingly approved obviously unfair, legally conflicting templates?
Who authorised their publication (insertion) into Atrium for use by TMs?
Who has the necessary system permissions to manage the template DB?
What triggers Atrium to insert any particular template? Is it human or AI?
Who programmed the trigger events & how are conflicting events handled?
Are these events tracked & logged in Atrium? And by Management?
How are these templates managed in the Atrium UI? (User Interface)
Is there a ‘version control’ system or some other governing process[es]?
Was there any ‘training’ or ‘team meetings’ where they were discussed?
Are there consequences for removing these system-inserted templates?
Have any TMs complained about the potential unfairness this causes?
What happened to them? Are there policies about this? Or discipline?
Here are three brief quotes about these Decision Templates from official SST Reports. They raise more questions than they answer, especially considering how old they are:
Report on the Tribunal’s Activities & Accomplishments (2016-2017) [p.9] 7
“Between April 1, 2016, and March 31, 2017, the Tribunal launched five new releases of its Case Management System [‘Atrium’], resulting in an increased capacity to develop and generate performance reports. Tribunal capacity was also enhanced with new features, such as assignment tools. Efficiency was further improved with the development of Decision Templates pre-populated with legislative texts related to the issues at hand, as determined by [Tribunal] Members.”
‘As determined by Members’: Was there any oversight or approval? Is there a record of which ‘legislative texts’ were deemed ‘related’ vs ultra vires? How were these selections made? Is there a record? Are these choices subject to Appeal or Judicial Review? Who personally wrote these ‘pre-populated Decision Templates’? Who determines where & when they apply? Can this choice be overridden? By whom?
Evaluation of How Easy It Is to Read SST Decisions (2024) (Original: 2021) 8
“Members first received plain language training in January 2018, then subsequent sessions or supporting tools, and at least 15 months practice before this study began to sample their Decisions for analysis. Some TMs expressed challenges in applying training recommendations, particularly those delivered by non-legal professionals or inconsistent with Templates or internal messaging.
What does this statement mean? TMs found that their ‘plain-language training’ was “inconsistent with Templates or internal messaging?” What is meant by ‘internal messaging?’ Is it related to the Templates? How were these conflicts reconciled? Which ‘source of authority’ took precedence during these conflicts? Is the ‘internal messaging’ published anywhere? Is it binding? Is it subject to Judicial Review? If not, then it falls under the same category as the BE Memo discussed at Problem #5. That fact that half of all TMs had difficulty with these Templates speaks volumes… 9
The SST recently published their updated ‘Style Guide’ “for SST Members [which] addresses linguistic & formatting issues.” (Updated: 2024-05-16) The start of ‘Part 5: Formatting’ covers ‘Decision Templates’ and makes the following admissions:
“Before you start writing your Decision, make sure you use the most recent Decision Template. Use the Templates in Atrium so that your Decisions are consistent with other SST Decisions in how they look and read. Using Atrium Decision Templates has benefits:
They have the right formatting built in.
They often set out the legal tests.
Some are already in plain language.
Avoid using an old Decision as a Template.”
So, to address ‘formatting issues’ TMs need to use the “most recent Decision Template” that “often set[s] out the legal tests‽” How is pre-determining applicable Case Law related to ‘formatting issues’? The chosen jurisprudence usually controls how to interpret facts and select & apply the law, which directly impacts final disposition.
Earlier, in Part 1: Writing Strategies, SST TMs are advised to use these Templates because they provide a ‘solid structure’ for the “backbone [of] your Decision.” So not only do these Templates predefine which Legal Tests to use (and any resultant analytical flow), they are intended to compose the very core of every Decision.
“A solid structure will serve as the backbone for your Decision. Organizing your ideas well will communicate them clearly. The most recent Decision Templates in Atrium give you solid examples for how to structure your Decision.”
What happens when you ‘break’ the ‘backbone’ of something? Is that ‘fatal’ to expected Decision-making outcomes? Atrium Templates are clearly intended for more than mere ‘consistency’ and “help[ing] with readability.” What happens when TMs independently decide pre-selected legal tests are not relevant to their current Decision? What happens when they don’t decide at all, and the prewritten Templates do that crucial task for them? Are there consequences for violating the ‘solid structure’ by restructuring the backbone?
If anything, the admissions in these publicly-published documents reinforce the importance of answering the 14 Questions listed above. The evidence in this section proves these Decision Templates far exceed mere ‘formatting’. (“How they look & read”) They serve as the ‘structural backbones’ that directly impact (and thereby logically guide) TMs’ statutory interpretation & legal application. And these conflicting templates contain obvious legal errors & facilitate other unfair situations. It is imperative that there is public disclosure & judicial oversight into how they are developed and applied to individual SST Cases. TMs must have the independence to determine ‘applicable legal tests’ themselves, without ‘suggestions’ (or stronger ‘policy’ implications) from an ‘intelligent’ Case Management tool. (And this does not address the fairness implications re. specific conflicting templates themselves [linguistic content].)
(to be continued: Error #15 addresses the Legal Issues & Jurisprudence re. ‘intelligent’ tools…)
(SST Training Manual) Style Guide: SST Decisions (Part 5: Formatting) re. ‘Decision Templates’
(‘CEIC-AL’) 2023 SST 1032: CEIC v. AL [¶45-50] (Overturned: 2022 SST 1428: AL v. CEIC)
(‘KVP’) 1965 (ON-LA) 1009 [p.85]. This precedent was established in the 1965 ON Labour Arbitration case: “Re: Lumber & Sawmill Workers’ Union [‘LSWU’], Local #2537 v. KVP Co. Ltd.”
The ‘KVP Test’ sets out the six requirements that must be met before employers can unilaterally impose a new corporate policy without prior Union Ratification (or Arbitration).
SST Keyword Search (Various Results: 2017 SST 84988, 2018 SST 679, 2019 SST 431, 2019 SST 619, 2019 SST 816, 2019 SST 949, et al) (Benefits Granted per Contract Analysis)
(‘CH-CEIC’) 2022 SST 1337: CH v. CEIC [¶24, FN-26] (KVP Rejected citing ‘Jurisdiction’.)
(‘SS-CEIC’) 2023 SST 31: SS v. CEIC [¶82] (KVP cited unsolicited to justify policy imposition.)
(‘SST-RTAA-17’) SST Progress Repost (FY17) [p.9] (p.958 [D08: p.881])
(‘SST-SSTRE’) Evaluation of SST Decision Readability (2021). (p.1054-56. [D08: p.976-78])
(id.) This same Study found that TM’s #1 Request (48%) was ‘Training on Decision Templates’.
(This table is immediately above the ‘Style’ section header: there are no page numbers online.)