(#3) Rule of Law & Jurisdiction :: Justice 4 EI Misconduct
(Problem #2) 'Contrary to Law' Analysis: Legal Basis (EIA 'Just Cause')
(#3) Rule of Law & Jurisdiction: Basis for ‘Just Cause’ Analysis (Justice 4 EI Misconduct)
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Legal Principles: Error #3 (Rule of Law & Jurisdiction)
Fundamental Questions (6+): #3-8 (+#2)
Grounds of Review (4): FCA §18.1(4)(a,c,e-f)
Vavilov Principles (3): Decision & Outcome
(a) Governing Statutory Scheme (¶108-10)
(d) Evidence Before Decision Maker (¶125-26)
(e) Submissions of the Parties (¶127-28)
Error #3: Rule of Law & Jurisdiction (EIA ‘Just Cause’)
Facts & Issues
Rule of Law: How does this Principle apply to EI Benefits Adjudication Cases?
Jurisdiction: What specific Jurisdiction is Assigned to EI Adjudicators? When & Where was it Assigned? Why? Are there any Exceptions?
Legislation
Please consider my SST-AD Written Arguments (@[P16] ‘DA-694-Args’) incorporated (by reference) into this J.R. Factum (Memorandum of Fact & Law) . To save space, I won’t reprint everything it contains, but large sections are critically relevant. This specific section incorporates from the Unreasonableness & Legislative Supremacy sections. 1
[SST-AD] TM Lafontaine (2024 SST 26) made many of the same errors committed by [SST-GD] TM Usprich in my Primary Case (2023 SST 1093). 2
Both our Constitution and our inherited Common Law system of governance are based upon the fundamental principle of the Rule of Law.
Every Citizen – regardless of power, position, resources, or lot in life – are subject to these same Laws. This not only applies to civil life, but also to private life. Not only are [we] workers subject to our Laws, but our employers are too – along with the various Government bodies & civil servants with whom we interact each day.
Our 13th Prime Minister, the Rt. Hon. John G. Diefenbaker clearly understood this principle when he drafted our Canadian Bill of Rights, which he considered to be his chief contribution to Canadians – and his crowning achievement in life. (Its Preamble contains this prescient warning…) 3
“The Canadian Nation is founded upon Principles that acknowledge the Supremacy of God, the Dignity & Worth of the Human person, and the Position of the Family in a Society of Free Men & Free Institutions. Affirming also that Men & Institutions Remain Free only when Freedom is founded upon Respect for Moral & Spiritual Values and the Rule of Law.”
(NB: Undermining the Rule of Law is the prerequisite to removing Freedom. For centuries, our Common Law system has been founded upon the legal maxim “A Verbis Legis Non est Recedendum” or “From the words of the Law there should be No Departure.”)
It is absurd to claim that an Employer can codify flagrant breach of multiple Laws (into corporate policy) – and then attempt to justify that fact with the argument that “we created a document giving ourselves this right” – as if merely ‘issuing’ some ‘policy’ granted them the authority to break the law. (Yet, that’s exactly what happened at many companies across Canada – and EI ADMs are largely condoning this nonsense…)
Contrary to Law: Analysis
Here is a partial listing of some of the relevant statutes. Since everything is detailed in previous submissions, I won’t repeat everything here in full. This list should suffice: 4
CLC: Canada Labour Code (RSC 1985, c. L-2) 5
re: ‘Lock-Outs’ (§3 & §88.1) & ‘Breaching CBAs’ (§166-68)
CBoR: Canadian Bill of Rights (SC 1960, c.44)
re: Mandates: Personal Security (§1[a])
re: Mandates: Equal Protection (§1[b])
Jurisdiction: ‘Under Parliament’ (§5[2-3])
Examination: re: Rights (§3[1])
CC: Criminal Code (RSC 1985, c. C-46)
re: Falsifying Employment Records (§398)
(Multiple Provincial Health Statutes)
(Indirectly: By Proxy – ‘State Action’)
HPPA: [ON] Health Protection & Promotion Act
HCCA: [ON] Health Care Consent Act
(This also contravened the spirit of various Jurisprudence…)
Management Rights: All Corporate Policy must Comply with both applicable Legislation and the Employment Contract.
Constructive Dismissal: Unilaterally-Imposed Administrative Leaves of Absence (Non-Disciplinary LOAs) must be Paid. (to ‘Ready, Willing & Able’ Workers)
Informed Consent: Must be explicitly obtained before administering any [permanent] Medical Treatments. Exercise of Authority, Threats, or Coercion Vitiates any Consent.
Not only did the [corporate] Policy itself violate multiple Laws, but it coerced middle-Management into doing so too, to enforce its Application. (Especially personnel in the HR Dept.)
As cited elsewhere, our CBA explicitly restricted Purolator’s Management Rights to operate within the confines of the Law & our CBA – four times… 6
CBA §3.01 [‘Acknowledged Right’]: “The Union recognizes the exclusive right of the Company to operate its establishment, machinery and equipment, and to manage its undertakings as it sees fit, subject only to the restrictions imposed by Law or by the provisions of the present Collective Agreement.”
CBA §5.01 [‘Regulations & Policies’]: “The Company has the exclusive right to make, modify, and implement regulations, policies & procedures to be observed by the employees; such regulations, policies & procedures must not be inconsistent with the provisions of the present Agreement. Furthermore, where in the present Agreement it is provided that a Policy is maintained, such Policy remains in-force and may not be modified by the Company for the duration of the present Agreement.”
CBA §5.05 [‘Nullity’]: “The Nullity of a provision of the present Agreement does not affect the validity of other provisions of the Agreement. Any provision of the Agreement which is or which becomes a violation of applicable Laws, will be Null & Void. In such a case, the Parties will enter into Bargaining to arrive at a mutually satisfactory replacement for the void provision. If the Parties cannot agree, the clause(s) affected shall be amended in conformity with the Law.”
CBA §22.02 [‘Respect of the Law’]: “The Company, the Union, and the Employees collectively undertake to respect the Health & Safety measures prescribed by applicable laws & regulations in order to ensure the Health & Safety of all Employees.”
Black’s Law (6th Ed.) [‘Null & Void’]: “…that which binds no one or is incapable of giving rise to any rights or obligations under any circumstances, [] of no validity or effect.”
Our esteemed Supreme Court concurs. They have repeatedly held that Employers are subject to the Rule of Law – both contractually (in CBA Negotiation & Arbitration) and in their exercise of Management Rights (Development & Enforcement of Policy). 7
(¶145) “…this Court held that the Employer’s Management Rights were limited not only by the Collective Agreement but also by mandatory Legislative provisions. (¶146) [] …CBAs may give the Employer a broad right to manage the operations of the business. However, that power is limited by the Employees’ Statutory Rights even where the CBA is silent on the subject. […] The absence of an express provision that prohibits the violation of a particular Statutory Right is insufficient to conclude that a violation of that Right does not constitute a violation of the Collective Agreement. […] A CBA cannot be used to reserve the right of an Employer to manage operations and direct the work-force otherwise than in accordance with its Employees’ Statutory Rights…” (2006 SCC 2 [‘Garon & Fillion’])
Argumentation
No matter which Legal System is considered: Statutory Law, Common Law, or Private Law (our CBA), the Rule of Law stands. Employers cannot break the law – nor coerce their Workers to do so. Whenever they do [anyways], Workers have Just Cause for Leaving that Employment – regardless of who initiates the Separation.
([EIA §29(c)]: ‘Just Cause’ for ‘Voluntarily Leaving’ or ‘Taking Leave’ exists when[ever] (xi): Employers act ‘Contrary to Law’ – or (vii/ix): ‘significantly Change’ the Employment Contract.)
How is it reasonable for an Employer to violate any one – much less all three – of these Legal Systems, but when Employment subsequently ends because of this fact, it is the [unjustly unemployed] Worker who ‘pays the price’ by being Denied their EI Claim‽
The Rule of Law demands that everyone be subject to the Law – and when it is violated, Justice be dispensed appropriately. In this [EI] context, that means identifying the real reasons why Employment ended – by fact-finding for the precipitating factor[s] underlying the Employment Separations. And when the Claimant has a statutorily-enumerated ground of Just Cause – they are not Disqualified or Disentitled from receiving EI Benefits.
Unfortunately, the COVID-19 Pandemic caused fear-driven, impaired judgement. Decisions were made apart from sound rationale and the Rule of Law. To better explain the principle, I offer two hypothetical situations that use the same underlying fact pattern, to help highlight the problem: 8
Unlawful Policy: Practical Examples
Situation: A busy multisite manufacturer begins losing key contracts, which eventually impacts their share price. After six straight quarters of decline, the Board hires an Analyst who makes the following discoveries:
The factories suffer from (1) significant Productivity problems, much of which is (2) due to ‘Company Culture’ or ‘continuously declining Morale’… [So]:
To ‘promote Productivity’, Management implements a new corporate Policy mandating that All Employees must “work 24-hour-straight shifts, with no breaks.” (This clearly violates Provincial Labour Laws.) Then, any Employees who ‘refuse to comply’ with this ‘important policy’ are ‘Terminated With Cause’ for ‘Willful Misconduct’.
To ‘improve workplace Morale’, a depraved Executive issues a new Policy mandating that All Employees must “provide sexual services for their Supervisor[s] on a weekly basis.” Any ‘non-compliant Workers’ will have their “shifts cancelled for the following week” (i.e. will be placed on Unpaid Leaves of Absence: ‘Locked-Out’) for every week they “choose not to participate as ‘team-players’.” (This is ongoing Extortion – and it violates Workplace Safety & Harassment/Violence Legislation.) Likewise, any Workers deemed persistently ‘non-compliant’ with this [ludicrous] proposition, will be ‘Fired For Cause’ for ‘Insubordination’.
Claim: That all these ‘Non-Compliant’ [Unemployed] Workers should be Denied EI Benefits because they are ‘Guilty of Misconduct’.
(i.e. They ① willfully ② chose to ignore ③ a clear policy ④ knowing the consequences. – The fact that these Policies violated Statutory Rights, Binding Legislation & the Criminal Code is supposedly ‘Not Relevant’ to the Decision-Making Process – because ‘Misconduct’ was alleged…)
Absurdity: Denying EI Claimants after trying to justify their Employer’s Lawbreaking with “they gave themselves permission to do so in Policy” excuses – and “because they alleged Misconduct, we cannot investigate whether they broke the Law or not…”
What does EIA §29(c)(xi) mean? That: “Just Cause exists when an Employer’s practices are Contrary to Law.” How can this be Reasonably interpreted to mean anything but “EI ADMs possess Jurisdiction to adjudicate the Lawfulness of an Employer’s Actions in Employment Separations?”
Ergo, both Legally & Logically, it is Absurd to claim ultra vires Jurisdiction to avoid Fact-Finding for Just Cause when there are allegations of Employer Lawbreaking involved in the Case. The EI Act requires this Finding…
Legislative Intent: Hansards
Parliament explicitly assigned EI Adjudicators (CEIC & SST) Jurisdiction to Investigate ‘Just Cause’, based on existing Labour Jurisprudence. They are mandated – by Law (via EI Act §29[c]) – to Investigate the 40 Just Cause Reasons (cf. DBEP §6.8.1) established within Employment & Arbitration Law.
What changed‽ If today’s Adjudicators are to be believed, they “do not have Jurisdiction to investigate whether an Employer broke the law.” When, Where & How did that Authority Change? 9 (The Statute did not Change.) 10
The Legislative Intent (per multiple Ministers & Directors of UI Policy) memorialised inside Parliamentary Committee Hansards is both unmistakable and unambiguous: Parliament Intends that EI ADMs Fact-Find for Just Cause. They own Jurisdiction.
Senate Special Committee on Bill C-21 ([D03] p.539-594: [1989] Parl: 34, Sess: 2, Vol: 1, Iss: 2)
Senator Anne Cools 11 & Joe Verbruggen (Director General, Insurance Policy) || (Hearing #2: 1989-12-05)
(p.574) [AC]: “…I am wondering why the new Act is using such provocative language as ‘Just Cause’, because my understanding is that this phenomenon of Just Cause comes out of the new wave of Labour Law of the last 20 years in which terms such as ‘Termination for Just Cause’ are used?”
[JV]: “…Our instructions to the Legal Drafters was to try to reflect precisely the present state of Jurisprudence, because we did not want to introduce any new notions or changes, we just wanted to make sure that the Law would reflect what is in the Jurisprudence. No one believes you when you say, “Do not worry about it, it’s All in Jurisprudence.” Then people say, “Where is it?” Then you have to give them a stack of Jurisprudence that they cannot read. There was a lot of demand to have this reflected in the Legislation. So what the Legislation does is no more and no less than what is in Jurisprudence…”
[AC]: “So the Legislation is choosing to reflect the social dilemma, is that it? Not to solve it, but to reflect it?”
[JV]: “To certainly reflect it, yes.”
(p.574–577) (Continues: How EI Adjudicators will Use this List to Fact-Find for Just Cause – and how Cases are Appealed & Reviewed for Errors.)
(p.577) [Senator MacDonald]: “It would take a very brave man or woman to fight the matter all the way to the Federal Court of Appeal.”
House Legislative Committee: Bill C-113 ([D05] p.639–654: [1993] Parl: 34, Sess: 3, Vol: 1, Iss: 1)
Nick Mulder (Deputy Minister of Employment) & Gordon McFee (Director of UI Policy & Legislation Development) || (Hearing #1: 1993-03-08)
(p.639) [NM]: “I have with me three of my colleagues in Employment & Immigration who are familiar with a lot of the details of the proposed amendments to the Unemployment Insurance Act. Julie Zahoruk-Tanner is the Chief of UI Policy. Gordon McFee is the Director of UI Policy, Legislation & Development. It is a long title. He is really the Chief Guru on a lot of Legislative Initiatives. He is not responsible for them, he just does all the work. Norine Smith is our Director General of Policy & Program Analysis.
[…] We thought we would allow Mr. McFee first of all to walk you through an explanation of the elements of the Legislation, the Clauses, to give you some background on them and tell you what they're about.”
(p.642) [GM]: “There are some other important elements in Bill C-113 and in terms of the way it will be implemented that should be touched on at least briefly. The first is that the Legislation you have before you has expanded the definition of ‘Just Cause’. Those of you familiar with the program will remember that up until 1990 Just Cause was not defined in the Legislation at all. The Guidelines used arose from the Jurisprudence.”
In 1990, five items were added to the Legislation in Bill C-21, which were the first definitions of Just Cause. In the current Bill that number is now up to around 14 or 15. […] Those 14 Reasons in fact incorporate a kind of Summary of what is in the Jurisprudence. The Jurisprudence identifies around 40 Reasons […] Actions that can be taken that are considered to be Just Cause for Quitting Employment. Those 40 Reasons, to the extent possible, have been sort of encapsulated into the 13 or 14 Reasons you will find in the Legislation. […]
Another point you might find of Interest is the fact that the Policy Directives to be issued by the Commission […] will instruct that the Benefit of the Doubt in Cases of this kind be given to the Claimant.
Those of you familiar with the Program are aware that in the Fact-Finding exercise, particularly when issues such as Voluntary Quit, Just Cause & 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 & Employer. In those Cases where the Fact-Finding leads to an Inconclusive Decision, the Benefit of the Doubt will be given to the Claimant.”
(Both of these excerpts are unequivocal. Both come directly from the UI Policy Department Heads in the Ministry of Employment. Both state that EI Adjudicators shall Fact-Find for Just Cause when investigating EI Claims – and grant Benefit of Doubt to Claimants. That means they hold Jurisdiction – for All 40 Reasons… That includes examining whether Employers’ Act ‘Contrary to Law’, Exert ‘Undue Pressure’, or make ‘Significant Changes’ to Employment Contracts.)
Jurisdiction: Powers of Tribunal
Parliament assigned Jurisdiction precisely because EI Adjudicators need to Investigate circumstances involving Just Cause, to factor them into their EI Benefits Entitlement Decisions. Justice Expects It. The Act Requires It. And the Rule of Law demands it…
This expectation is not new; it has long been understood as a requirement for EI ADMs. For over 35 years, the Federal Court has held – and repeatedly affirmed – that [EIA §29(c)(xi)] Analysis includes actions both “Contrary to Law and as well to the Claimant's Union Contract.” 12 , 13
[¶98]: “The term ‘illegal’ has a broader meaning than merely ‘contrary to the criminal law’ and can include contraventions of employment standards and legislation (CUB 16209), collective agreements (CUB 51219), and licensing board certifications.” 14 , 15
Parliament ensured that SST TMs possess the power they need to fully, honestly weigh each Decision. This has life-altering consequences for wrongly unemployed Claimants. The DESDA grants them authority to pursue every avenue necessary to achieve Justice. And Just Cause is the central question when separations are not completely involuntary.
DESDA §64(1) [‘Powers of Tribunal’]: “The Tribunal may decide any question of Law or Fact that is necessary for the disposition of any Application made or Appeal brought under this Act.” 16
This plenary jurisdiction stands in stark contrast to the claims made by most EI ADMs in C19-MM Cases – including both of the TMs adjudicating my Decisions under J.R: 17 ,18
[GD: ¶¶28,75,92,99]: “I cannot make any Decisions about whether [you] have other options under other Laws.”
I never asked for any relief “under other laws.” But Justice requires honest investigation into the full context surrounding my specific situation. That necessitates considering the influence & ‘net-effect’ of the ‘whole picture’ – weighing every relevant legal instrument.
I am asking for fair consideration of the predominant laws involved (e.g. Canada Labour Code [CLC §88.1] & Criminal Code [CC §398]) – historical Jurisprudence and Parliament expect as much. They do not grant power only to subsequently permit abdication. TMs must exercise the Jurisdiction explicitly assigned to them: failure to do so is both a Jurisdictional & [Statutory] Legal Error.
Historical analysis of binding Court precedent proves that Employment Contracts, Labour Laws, Health & Safety Legislation, Constitutional & Human Rights, and any other case-relevant statutory authorities are applicable to Decisions under the EI Act.
In my case, that primarily includes [at least] the following three considerations:
CBA: 19 My Collective Agreement is the ‘Private Law’ authority governing my employment at Purolator. It contains the ‘express duties’ we each owe the other parties – and defines the legal boundaries around any potential ‘implied duties’.
Prior to this pandemic, considering the applicable Contractual Clauses – and the specifically enumerated Terms & Conditions of Employment – was understood to be a required task when adjudicating any Benefits Claims. What changed?
My employer violated several different sections, while I never breached any.
(Also: if considering my CBA is ultra vires, how can I be found to have ‘breached’ it‽)
CLC: 20 The Canada Labour Code is the governing authority over federally-regulated workplaces. It contains both the applicable Labour Law and Health & Safety requirements – which are both historically deemed part of EI Adjudication.
Purolator codified & enforced prohibited Lock-Outs ‘contrary to law’. (§88.1, §3)
(Also: Some CBA Terms are considered to possesses Statutory Authority under Part III: §166-68.)
CC: 21 Falsifying my ROE (Record of Employment) is a Criminal Code Offence (§398). This is also ‘Contrary to Law’ and directly led to my Employment Separation – which caused my EI Benefits Claim.
There are other aspects germane to my Separation from Purolator that were ‘Contrary to Law’. (For the sake of brevity & simplicity, I will not list them here, as these three are the most egregious violations. I do argue additional factors in other sections of this Factum.)
What matters here, is that the statutory Jurisdiction of legal & factual considerations extends well-beyond the artificially narrow limits claimed by EI ADMs in C19-MM Cases.
The EI & DESD Acts are clear – as is binding Jurisprudence. Adjudicating EI Benefits requires factoring all the relevant legal instruments when making Decisions. §29(c)(xi) mandates fact-finding into whether “practices of an Employer are Contrary to Law.”
This includes ‘any law’ directly related to the employment separation. This does not mean granting relief under those laws – but it does mean “decid[ing] any question of Law or Fact that is necessary for the disposition” of the EI Benefits Claim.
(Just Cause also includes ‘Constructive Dismissal’ related factors under §29(c)(vii/ix)…)
This statutorily-mandated Jurisdiction was intentionally abdicated from the very beginning of this process. TM Usprich arbitrarily limited the boundaries of my SST-GD Hearing even before I was put under Oath/Affirmation: 22 (TimeCode: 16:15 min)
[TM Usprich]: “I can only consider whether or not your conduct amounted to Misconduct under the EI Act & related Case Law.” (@15-16 min)
This error was further proven when she fully rejected her obligation to Fact-Find for whether my ‘Employer acted contrary to Law’ (EIA §29[c][xi]) by selectively citing the DBEP. 23 , 24 , 25 (GD: ¶107) This completely ignored my repeated references to the Just Cause provision in the EI Act – which explicitly includes both ‘voluntarily leaving’ and ‘taking leave’ – which I have consistently labeled as my ‘Primary Claim’ & ‘Main Issue’ (among other similar references) all throughout my Case History. 26
Consistency: Legal & Logical
Both Purolator and EI ADMs must be consistent. This was either choice or coercion. If they coerced me into unwanted medical treatments, I obviously have Just Cause – and they become liable [both civilly & criminally] for any damages I incur.
But if I made a ‘choice with consequences’ (eliminating coercion) the outcome is still the same: this was the ‘choice’ they gave me: [either] ① take two experimental injections [or] ② take a Leave of Absence.
Either way, I ‘made a choice’ to ‘take’ something. (Whether or not I truly consented is semantics, given it’s either ‘choice’ or ‘coercion’: any ‘choice’ to ‘take leave’ is one explicitly ‘authorised’ by – and ‘compliant’ with – my Employer’s Policy. They cannot reasonably approve Leaves of Absence in policy & then subsequently claim Misconduct when Workers ‘choose’ this option.)
The statute intentionally lists both ‘voluntary leaving’ & ‘taking leave’ in the Just Cause clause. Denying this obvious fact denies Parliamentary Intent – making that distinction superfluous – which violates fundamental Statutory Interpretation. 27
This language decision was ‘clarified’ by its legislative authors, in the same Hansard volumes cited above. Both options were provided on purpose to cover both temporary Leaves of Absence & [in]voluntarily ‘quitting for cause’ (‘constructive dismissal’) – ensuring that fact-finding for Just Cause is always conducted. 28
EIA §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.
Meanwhile, the Disqualification clause omits ‘Taking Leave’ as grounds to Deny EI Benefits with equal intentionality:
EIA §30(1): “A Claimant is Disqualified from receiving any Benefits if the Claimant Lost any Employment because of their Misconduct or Voluntarily Left any Employment without Just Cause.” <= (‘Taking Leave’ prong removed from Test)
The Disqualification clause is not applicable to Lock-Outs, Constructive Dismissals & Involuntary Separations. (i.e. ‘Voluntary Leaving’ and ‘Taking Leave’ both require Just Cause Analysis – but the later type of Leaving is not applicable to any Misconduct Analysis.) This distinctive textual difference must have interpretive meaning.
(As cited earlier) Gordon McFee: Director of UI Policy, Legislation & Development:
(p.708): “The UI Legislation is predicated upon people involuntarily losing their Employment & receiving short-term income support while they look for another job.” 29
Approved ‘Administrative Leaves of Absence’ cannot be grounds for Disqualification.
(Whether Claimants are Entitled to collect EI depends on whether their LOA has Just Cause – and there is a legal distinction between ‘Not Entitled’ & ‘Disqualified for Misconduct’)
And any Leave predicated upon Purolator ‘acting Contrary to Law’ constitutes Just Cause. Either way, Misconduct is not possible given both the Statutory text & Facts of the Case.
Application
Intentionally refusing to consider “whether a Duty is Validly Imposed” – or, more fundamentally, “whether it is Valid” to begin with – Violates the Rule of Law and is a Jurisdictional Error. The governing Home Statutes are clear – as is the proverbial mountain of relevant Legislative History (over 4,500 pages).
The Rule of Law requires Employers to comply with the Law. They cannot reasonably use ‘Management Rights’ to excuse Lawbreaking. When they do act unlawfully anyways, the Law still stands – and aggrieved Workers have ‘Just Cause’ for the ensuing Employment Separation (EIA §29[c][xi]). This means they Qualify for EI Benefits. (And when situations are unclear, Workers get the ‘Benefit of Doubt’.)
When the UI Program was completely overhauled in 1990 (Bill C-21), Parliament established the principle of [partially] Disentitling some Claimants from receiving EI Benefits based on whether they lacked Just Cause. They subsequently defined the legal definition of Just Cause, its corresponding 14 Reasons (C-113) & set the Adjudication process, specifically assigning Jurisdiction in the Statute.
On what grounds can the SST (or CEIC) reasonably argue that they ‘Lack Jurisdiction’ to investigate ‘Duty Validity’ – or its ‘Imposition Validity’? Fact-Finding for whether either are ‘Contrary to Law’ is mandatory. (By: EIA §29[c][xi] & DESDA §64)
EIA §29(c) + DESDA §64 – and their historical context – plainly assign Jurisdiction. To claim otherwise is to ‘refuse to exercise Jurisdiction’, which is Grounds for Review at FCA §18.1(4)(a).
Ignoring the Rule of Law – and applying different standards to the Employer vs. the Claimant – violates ‘Procedural Fairness’ per §18.1(4)(b).
Since the EI Act clearly requires EI Adjudicators to factor whether “Employer practices are Contrary to Law” not doing so meets §18.1(4)(c/f). ([c]: Erred in Law & [f]: Acted Contrary to Law)
“If the Claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the Duty of Fairness.” (Baker [¶26], citing Qi & Bendahmane)
Decision
We respectfully ask this Court to Quash TM Lafontaine’s Decision on the Grounds that the Rule of Law and the Assigned Jurisdiction make his Decision Unreasonable. 30
Rule of Law: SST TMs refused to consider the fact that my Employer broke several different Laws, (inter alia, the Canada Labour Code [‘CLC’ §88.1 & §167f] & Criminal Code [‘CC’ §398]) – when that fact was precisely why my Employment ended – erroneously claiming that such statutorily-mandated Fact-Finding (EIA §29[c][xi]) was ultra vires.
Jurisdiction: TMs incorrectly found that Fact-Finding for the ‘validity’ (‘lawfulness’) of any corporate Policy – much less the precipitating one – was ultra vires, despite both of their Home Statutes requiring that Analysis. (EIA §29[c], under DESDA §64)
EI Act §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.
DESDA §64 [‘Powers of Tribunal’]: “The Tribunal may Decide any Question of Law or Fact that is necessary for the Disposition of any Application made or Appeal brought under this Act.”
(Vavilov [¶108]) “…ADMs are [not] permitted to disregard or rewrite the Law as enacted by Parliament. [] [Their] Decision must ultimately comply “with the rationale and purview of the statutory scheme under which it is adopted.” (cit. [SCC] Catalyst [¶15] & Green) [] …Decision[s] must comport with any more specific constraints imposed by the Governing Legislative Scheme, such as the Statutory Definitions, Principles, or Formulas that prescribe the[ir] exercise of Discretion.”
Sources:
Statutes
(‘CBoR’) Canadian Bill of Rights (SC 1960, c.44) :: https://CanLII.ca/t/7vnh
https://laws-lois.justice.gc.ca/eng/acts/C-12.3
(‘CLC’) Canada Labour Code (RSC 1985 c.L-2)
https://laws-lois.justice.gc.ca/eng/acts/l-2
CLC §3, §88.1: Lock-Outs Prohibited
CLC §166-68: Application (Legislated CBA Terms)
(‘CC’) Criminal Code (RSC 1985 c.46)
https://laws-lois.justice.gc.ca/eng/acts/c-46
CC §398: Falsified Employment Records
Jurisprudence
2003 SCC 42: Parry Sound DSSAB v. OPSEU #324 (‘Parry Sound’ [¶24-30])
(DSSAB: District Social Services Administration Board)
2004 SCC 55: Cabiakman v. Industrial Alliance Life Insurance (‘Cabiakman’ [¶61f, ¶72])
2006 SCC 2: Isidore Garon v. Tremblay; Fillion v. SNEGQ (¶145-46)
(SNEGQ: Syndicat National des Employés de Garage du Québec Inc.)
(CUB 16209) Steven Becker v. CEIC [1988] (Definition of ‘Contrary to Law’)
(CUB 51219) Linda Earl v. CEIC [2001] (Definition of ‘Contrary to Law’)
(2023 SST 1886) AM v. CEIC [¶98] (Definition of ‘Contrary to Law’)
Reports
(‘DBEP’) [ESDC] Digest of Benefit Entitlement Principles
https://canada.ca/en/employment-social-development/programs/ei/ei-list/reports/digest.html
DBEP §6.8.1: Just Cause Analysis (40 Circumstances to Consider)
DBEP §21.2.2: Gathering All Available Evidence
Evidence
(‘Affidavit’) Affidavit of EI Claimant
https://Justice4EIMisconduct.com/assets/FCA-Affidavit.pdf
(‘DA-694-Args‘) SST-AD Written Arguments: ([P16]: p.244-76 [ADN6-2..34])
Unreasonableness ([P16]: p.246-47 [ADN6-4..5])
Legislative Supremacy ([P16]: p.257 [ADN6-15])
(‘DA-740-Args‘) SST-GD Written Arguments: ([P11]: p.183-94 [RGD8-3..14])
(‘CBoR’) Canadian Bill of Rights (SC 1960, c.44): [§Preamble]
This primarily summarises legal analyses found in 3 different filings. ([P11]: p.183-94 (RGD8); [P16]: p.244-76 (ADN6); [Affidavit] p.24-53)
(‘CLC’) Canada Labour Code: ([Affidavit]: [¶8-10] p.28-31, [¶14-16] p.32-34, [¶23] p.37, [¶28-29] p.40-42, [¶43] p.48f, [¶49] p.50-52; [P16] p.273-76 [ADN6-31..34])
(‘CBoR’) Canadian Bill of Rights: ([P11]: p.186-89 (Arg #2) [RGD8-6..9])
(‘CC’) Criminal Code: ([Affidavit]: [¶8-10] p.28-31, [¶24-34] p.37-43, [¶49] p.50f, [¶75] p.63)
(‘Other’) Various Legal Arguments: ([P16]: p.268-76 (Appendix B: Policy Unlawfulness) [ADN6-26..34])
I briefly examine the CLC ‘Lock-Out’ issue below – and in detail in {Error #4: Private & Common Law} (‘Employer acted Contrary to Law’: [Factum] ¶81, ¶111-15)
(‘CBA’) Collective Agreement: §3.01, §5.01, §5.05, §22.02 ([D01]: p.358-61, p.423 [RGD8-75..78, RGD8-140])
2006 SCC 2: Isidore Garon v. Tremblay; Fillion v. SNEGQ (‘Garon & Fillion’ [¶145-46])
Citing: 2003 SCC 42: Parry Sound DSSAB v. OPSEU #324 (‘Parry Sound’ [¶24-30])
Citing: 1995 SCC 108: Weber v. Ontario Hydro (‘Weber’ [¶53-58])
Deeming Just Cause Fact-Finding as ultra vires in ‘Taking Leave’ Cases is a new phenomenon. What happened in 2020 that caused this vital policy shift without corresponding changes in Law‽
The Just Cause, Disentitlement & Misconduct section (§29-34) of the EI Act only received two [substantive] amendments in the ~30 years since they were first codified. Neither one changed the Legislative Intent & legally-defined processes. (See: ‘Error #1 [Side-Bar]: EIA Statutory Amendments’ for analysis & legal BlackLine.)
(‘About’) Anne Cools (Sen-Ind): Committee, Unemployment Insurance (ParlInfo Bio | Wikipedia)
(CUB 51219) Linda Earl v. CEIC: ‘Contrary to Law’ means both Legislation & Employment Contracts.
(‘Umpires’) “Umpires are considered the second level of Appeal [over] a Board of Referees. […] [CUB] Umpires are usually Judges of the Federal Court.” (cf. Jurisprudence Library: ‘Umpires’)
(2023 SST 1886 [¶98]) AM v. CEIC: ‘Contrary to Law’ includes CBAs, Work Standards & Legislation.
(CUB 16209) Steven Becker v. CEIC: ‘Legislation’ includes federal statutes & ‘business ethics’.
While Tribunals may have ‘broad power’ to ‘interpret their own statute’, they do not have the power to refuse a requirement explicitly enumerated in their Home Statute[s]. When DESDA §64(1) (‘Powers of Tribunal’) is applied to §58(1) (‘Grounds of Appeal’), “decid[ing] any necessary question of fact” includes those questions forming the basis of the Appeal under the Home Statute: in this Case, the EI Act’s ‘Just Cause’ clause requiring fact-finding into Employers Acting ‘Contrary to Law’.
(‘DA-740’) [SST-GD]: TM Usprich wilfully refused statutorily-mandated Jurisdiction to fact-find whether my ‘Employer acted Contrary to Law’: ¶¶68,74,90,99. She also invoked the ‘strawman’ about granting ‘options under other laws’: ¶¶28,75,92,99,103. Fact-Finding CBA & Labour Law Breaches is not ultra vires.
Both Errors #12 (BE-Memo) & #14 (Atrium Templates) prove her Reasoning constitutes Reviewable Errors.
(‘DBEP’) [ESDC]: EI Adjudication Policy: Digest of Benefit Entitlement Principles (Some Relevant Chapters) Ch.6: ‘Leaving Employment’ & Ch.7: ‘Misconduct’ (Citing the DBEP does not override/supersede the Act.)
(‘DA-740’) DA v. CEIC (2023 SST 1093); [¶104-08, esp. ¶107]. (Rejection of Just Cause)
(‘DBEP’) Incidentally, DBEP §21.2.2: (‘Gathering All Evidence’ ) defines “other pertinent legislation (e.g. labour laws) [&] collective agreements” as required ‘Documents & Records’ because “we must apply the law to the facts [and] it is necessary to establish/prove the facts.”
(‘DA-740-Args‘) [SST-GD] Written Arguments: citing ‘Previous Appeals’: ([P11]: p.184 [RGD8-4])
(‘DA-694-Args‘) [SST-AD] Written Arguments: ‘Legislative Intent’ ([P16]: p.245-46 [ADN6-3..4])
The two valid interpretations of ‘taking leave’ are discussed at: Error #1: Legislative Intent (Meanings of ‘Leave’)
The Legislative History of this specific amendment is documented at: {‘Error #1 [Side-Bar]: EIA Statutory Amendments’}.
(‘House-C113’) Gordon McFee: Director of UI Policy, Legislation & Development. ([D05] p.708)