(#4) Private Law & Common Law :: Justice 4 EI Misconduct
(Problem #2) 'Contrary to Law' Analysis: Legal Basis (EIA 'Just Cause')
(#4) Private Law & Common Law: Basis for ‘Just Cause’ Analysis (Justice 4 EI Misconduct)
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Legal Principles: Error #4 (Private Law & Common Law)
Fundamental Questions (4): #4-6 & #9
Grounds of Review (4): FCA §18.1(4)(a-d)
Vavilov Principles (4): Decision & Outcome
(b) Other Statutory or Common Law (¶111-14)
(d) Evidence Before Decision Maker (¶125-26)
(e) Submissions of the Parties (¶127-28)
(f) Past Practices & Past Decisions (¶129-32)
Error #4: Private Law & Common Law (EIA ‘Just Cause’)
(Vavilov [¶111]): “It is evident that both Statutory and Common Law will impose constraints on How & What an ADM can Lawfully Decide… [They] cannot adopt an interpretation that is inconsistent with applicable Common Law principles regarding the nature of Statutory Powers… Where a relationship is governed by Private Law {[i.e. Employment Contracts]}, it would be unreasonable for [them] to ignore that Law in adjudicating the parties’ rights within that relationship...” (Vavilov [¶111], cit. Dunsmuir [¶74])
Facts & Issues
Employment Contracts: What relevance do CBAs have? Can they be Ignored? Reasonably? Can they be selectively referenced? What happens when multiple CBA sections explicitly Nullify prospective corporate Policies?
Common Law: Can Management Rights overrule Common Law? Can the KVP Test be Used? Ignored? What happens when Policies Fail KVP?
Private Law: Can Management Rights overrule Employment Contracts? Can corporate Policies be ‘divorced’ from their ‘enabling’ Contracts & Statutes? Are they still considered Active & Binding in that situation?
Errors in Law:
My CBA was Miscited to Justify their Decisions to Deny My EI Claim.
Both SST TMs ‘Divorced’ corporate Policy from the governing CBA.
TMs Used a clearly Nullified corporate Policy in their Decision-Making.
TMs Refused to apply [Common Law] KVP Test, despite 50-year History.
Error in Fact:
A Nullified corporate Policy was Deemed to be Active & Applicable,
Despite the Fact that it was patently Unlawful & Contrary to my CBA.
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 ‘#1: Nullified Policy & Misused CBA’. 1
Preface: I am not seeking a Ruling on the Reasonableness of my Employer’s Policy – I am seeking statutorily-mandated Fact-Finding into the Unlawfulness of their Actions. 2
It is not ultra vires to read our CBA and apply its Provisions to the situation – this is the requisite foundation for investigating Just Cause (when adjudicating EI Benefits Claims). Historical Decisions, EI Policy (DBEP §21) & the EI Act (§51) require this.
Legislation
[¶20]: “Management’s residual Right to unilaterally impose workplace rules is not unlimited. Management Rights must be exercised reasonably and consistently with the Collective Agreement. [¶21]: Clause 5.02 of the CBA also constrains Management’s ability to exercise these Rights, as it provides that in administrating the CBA, the Employer must “act reasonably, fairly & in good faith.” Any unilaterally imposed workplace Policy must comply with these limitations.” (2017 SCC 55: ‘AJC’ [¶20-21] | cit: ‘KVP’ [p.85] & ‘Irving’ [¶24])
Private Law: Management Rights
Employment Contracts (or CBAs) form the foundation of all Employment relationships. All corporate Policy & ‘Management Rights’ flow out of this Contract. Therefore, corporate Policies cannot violate the Contract – nor can they violate applicable Laws.
There is a long-settled hierarchy in Common Law, that is reinforced in Jurisprudence: 3
Hierarchy of Precedence: Laws => Contracts => Policies
Our Employment Contract (‘CBA’) – between Purolator Canada & Teamsters Canada – contains four different clauses that specifically require all Contract Provisions, Policies & Procedures to comply with both the CBA and all applicable Legislation. (CBA §3.01, §5.01, §5.05 & §22.02) This includes an explicit ‘Nullity’ (‘Severability’) clause (§5.05) making ‘null & void’ whatever contravenes the CBA or relevant government Legislation. 4
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.”
My GD TM erred three different ways in one paragraph, which was key to her Decision: 5
[¶79]: “An Employer has a right to manage their daily operations, which includes the authority to develop and implement Policies at the Workplace. When the Employer implemented this Policy as a requirement for all of its Employees, this Policy became an express Condition of the Appellant’s Employment.” (FN: Citing ‘Lemire’) 6
Not only did TM Usprich omit the requirement that proposed corporate Policies are “subject to the restrictions imposed by Law,” but her citation was doubly erroneous: the ‘Lemire’ Court made no such finding (which is why there was no para. cited), 7 and it’s also wrong as a basic matter of Law.
Employers cannot unilaterally impose new Policies and automatically make them “express Condition[s] of the Appellant’s Employment.” There are several conditions that must be met first, including that they cannot violate binding Legislation, Employees’ Statutory Rights, or Terms in the CBA. (There’s an abundance of Case Law reiterating this fact from several different perspectives…) 8 , 9
EI ADMs cannot rely on CBA provisions that grant the right to create Policy, without also considering any conditions listed in that same provision. One must either accept or reject the provision as a whole. One cannot use the first half, while simultaneously rejecting the second half of the exact same sentence, to justify unlawful Policy creation:
Either our CBA authorises lawful corporate Policy, or it cannot be used to justify Policy creation at all… Anything else is both an error in law and violation of the first principle of Fundamental Justice – the Duty to Act Fairly.
It is inconceivable that my TM referred to a clause in my CBA to justify including a specific corporate Policy in her Decision (§3.01: “the exclusive right of the Company to [] manage its undertakings as it sees fit”) but disregarded the very next phrase (from the exact same sentence) which required excluding that Policy on legal grounds (“subject only to the restrictions imposed by Law”). (This also violates Natural Justice: Fairness.)
And even if our CBA did not contain these constraints – requiring any Policies to comply with the Law & our Contract – these same tenets are already found in Case Law.
Common Law: KVP Test
Our SCC has consistently held – and reaffirmed for 50+ years – that an Employer’s ‘Management Rights’ are constrained by applicable Legislation. 10 (Provincial Labour Laws, Human Rights Codes, etc.) Here is one SCC citation from 2006:
[¶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]: “In Parry Sound, Iacobucci J. also recognized that the CBA 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.” (2006 SCC 2: ‘Garon & Fillion’ [¶144-48])
(NB: These Cases explicitly include the governing Labour Code. This is relevant here…)
KVP: The ‘KVP Test’ addresses an Employer’s Right to unilaterally impose corporate Policies. 11 This Test defines six requirements which must all be met before companies can impose new Policies without the requisite:
① Union Ratification Vote, ② Employee Consideration, [or] ③ Labour Arbitration Ruling:
The first rule is that said Policy “must not be inconsistent with the CBA.”
The second rule is that said Policy “must not be unreasonable.” (incl. unlawful)
SCC: In 2013, our esteemed Supreme Court codified KVP into binding precedent: 12
[¶24]: “The scope of Management’s unilateral rule-making authority under a CBA is persuasively set out in … the ‘KVP Test’. […] Any Rule or Policy unilaterally imposed by an Employer and not subsequently agreed to by the Union, must be consistent with the Collective Agreement and be reasonable.”
[¶25]: ‘The KVP Test has also been applied by the Courts. Tarnopolsky J.A. launched the Judicial Endorsement of KVP … concluding that the “weight of authority & common sense” supported the principle that “all Company Rules with Disciplinary Consequences must be reasonable.” In other words, “the Employer cannot, by exercising its Management functions, issue unreasonable Rules and then Discipline Employees for failure to follow them. Such Discipline would simply be without reasonable cause. To permit such action would be to invite subversion of the Reasonable Cause clause.”’
[¶26]: “Subsequent Appellate Decisions have accepted that Rules unilaterally made in the exercise of Management Discretion under a Collective Agreement must not only be consistent with the Agreement, but must also be reasonable If the breach of the Rule results in Disciplinary Action.” (SCC then cites 3 Appeals Courts rulings: PEI, NL & MB)
(In the context of this SCC Decision, surely unlawfulness constitutes ‘unreasonableness’…)
Several Provincial Appellate Courts also apply this standard without naming KVP. 13
Principle #1: “Whether the Rule in question is Reasonable and Lawful.”
Principle #2: “Whether the Rule is consistent with the Employment Contract.”
Whether taken directly from our CBA, or based on binding Case Law, Purolator cannot legitimately impose corporate Policies that violate key Legislation (like the CLC)…
Legislation: Canada Labour Code
(Baker [¶25]): “A high standard of Justice is required when the right to continue in one’s Profession or Employment is at stake... A Disciplinary Suspension can have Grave and Permanent Consequences upon a Professional Career.” (1999 SCC 699, ‘Baker’ [¶25], citing: ‘Kane’ [p.1113])
Purolator is both federally regulated and unionised, therefore we are subject to the Canada Labour Code (‘CLC’) & our negotiated CBA (in that order). (cf. Affidavit ¶8)
CLC §3(1) [‘Interpretation’]: “Lock-Out: includes the closing of a place of Employment, a Suspension of work by an Employer, or a refusal by an Employer to continue to employ a number of their Employees, done to compel their Employees […] to agree to Terms or Conditions of Employment.”
CLC §88.1 [‘Lock-Outs Prohibited’]: “Strikes & Lock-Outs are prohibited during the term of a Collective Agreement.”
CBA §4.01 [‘Strike & Lock-Out’]: “It is agreed that for the duration of the present Agreement, there shall be no Strike nor Lockout, nor work slow-down, nor total or partial stoppage of work, nor study session. The Parties agree not to counsel nor encourage the above-mentioned actions.” (Does this last sentence include coercing HR Personnel via Corporate Policy?)
Purolator both broke the CLC & breached our CBA by unilaterally imposing Lock-Outs on workers who did not consent to taking an experimental medical treatment.
(Although the CLC is germane to this Case, this section focuses on the CBA & Case Law. That said, weaponizing Lock-Outs to coerce ‘policy compliance’ is the clearest, most egregious example of ‘acting contrary to law’. Purolator Leadership’s choice to insert & enforce Lock-Outs in their [C19-SWP] policy, violated all three tests – prima facie:
a) It broke the Canada Labour Code (§88.1) and was thus ‘Contrary to Law’.
b) It breached our CBA (§4.01) and was Nullified (§5.05) by its unlawfulness.
c) By virtue of both (a+b), it failed KVP & could not be unilaterally imposed.
On all three grounds, this particular immunisation mandate implementation fails. This specific policy either required: Union Approval or modification: Removing the LockOut.)
TM Lafontaine’s Decision even concedes that I was Locked-Out. (‘DA-694’: [¶16])
[¶16]: “The evidence shows that the Employer prevented the Claimant from working even though there was work. The Claimant acknowledged that the Leave was imposed on him and that he would have continued to work but for the Policy.”
(Executive), Purolator’s (Role & Title), testified [under oath] during Arbitration that there were “two serious Outbreaks at Purolator caused by Employees not following the rules.” 14
(NB: They did not mention any Outbreaks at facilities that adhered to their ‘COVID-19 Safety Plan’ – which did not include Vaccination. This pre-vaccine-mandate Policy proved to be sufficient at managing risk and eliminating workplace transmission. There was no justifiable need to use illegal Lock-Outs to force Employees to take experimental medical treatments – which are irreversible procedures. Their existing Policy was already working, as the complete absence of outbreaks for 18+ months proved…)
As an aside, Purolator also lost the Arbitration: the SWP was deemed ‘Unreasonable’ (from: 2022-07-01) & 563+ Employees were ordered back-to-work with back-pay. 15
This Arbitration Ruling was also recently upheld on Judicial Review in the BCSC. 16
Argumentation
EI Benefits Case
Throughout this process, SST ADMs have consistently refused to address this fundamental issue: while Purolator does have “the exclusive right to make, modify & implement regulations, policies & procedures” these Management Rights are “subject to the restrictions imposed by law” – and these limitations are reinforced by SCC Case Law.
(2023 SST 1093) [SST-GD]: TM Usprich repeatedly refused to factor my CBA into her Decision. (¶74, ¶79, ¶90, ¶91) There is a significant difference between assigning something little weight vs. outright refusing to consider it. The former is arguably discretional, the latter is an error in law. There is no basis to expect Policy compliance unless the CBA is invoked to obtain Management Rights. Simultaneously invoking these Rights while deeming every other clause in the CBA ultra vires is another Error in Law.
(2024 SST 26) [SST-AD]: TM Lafontaine also reiterated that he had no Jurisdiction to even consider my CBA – or the KVP Test – using the same citations. (see: {Error #7})
[¶37] “It is one thing to ask whether an express or implied duty exists. It is another to ask whether the duty was validly imposed by the employer. [That] falls outside of EI Law.”
(¶37:FN12) “This is why the KVP Test does not apply in EI Misconduct Cases.”
[¶40] “The question of whether the Employer […] violated Legislation and his CBA […] is a matter for another forum.”
[¶44] “The Court reiterated several times that the SST does not have the authority to assess or rule on the merits, legitimacy, or legality of the Employer’s Vaccination Policy.”
As another important aside, TM Usprich made several categorically false assertions & cited Case Law that did not support those conclusions, that were key to her Decision.
[¶79]: “An Employer has a right to manage their daily operations, which includes the authority to develop and implement Policies at the Workplace. When the Employer implemented this Policy as a requirement for all of its Employees, this Policy became an express condition of the Appellant’s Employment.” (citing: ‘Lemire’ [2010 FCA 314])
[¶82]: “Cecchetto also makes it clear than an Employer may unilaterally introduce a Vaccination Policy without an Employee’s Consent.” (cit: ‘Cecchetto’ [2023 FC 102])
Lemire did not hold that Policies automatically become Conditions of Employment. (This subject was not even addressed in that Decision.) [¶18] set out the Questions at Issue…
Cecchetto did not hold that Employers may “unilaterally introduce policies without Consent.” (That was a reference to another SST Decision that was deemed of ‘limited relevance here.’ [¶41-43]) [¶5] is unequivocal: his employer “did not have its own Policy, but rather followed the rules set out in Directive 6” which was a binding Order from the CMOH across the Healthcare sector, made under the provincial Health Protection statute.
She relied on both of these assertions to justify her Decision. Both were Erroneous.
Case Comparisons
Meanwhile, in the six years before the pandemic (2014–2019), there were 365 Cases that seem to discuss contents of ‘Employment Contracts’ or ‘Collective Agreements’ – which is what you would expect to find, based on the EI Digest Principle §21.2.2 (‘Gathering All Available Evidence’) 17 which states that “employment contracts” and “collective agreements” are among the “evidence necessary to prove the facts of a particular case.” (Twice in five paragraphs EI ADMs are told to gather Contracts for evidentiary purposes.)
DBEP §21.2.2: “Because Evidence is any information that tends to prove or disprove a point, it can take many forms such as: […] any written instrument including documents & records such as letters, notes, Contracts, Collective Agreements.”
[‘Documents & Records’]: “EI Legislation, other pertinent Legislation (e.g. Labour Laws), Collective Agreements, [] Employment Contracts, Settlement Contracts, et al”
“These lists are not intended to be all-inclusive; the point to be made is that there are many different sources & methods available to amass the Evidence necessary to Prove the Facts of a particular Case.”
EIA §51 [‘Information’]: provides specific instructions for when: “the Commission finds an indication from the documents relating to the Claim that the loss of Employment resulted from the Claimant’s Misconduct.” They are required to “give the[m] [] an opportunity to provide information & […] take it into account in determining the Claim.”
Digest Principle §7.2.1.1 covers ‘Fact-Finding [Misconduct] with the Employer’:
“To determine whether or not a Claimant was Dismissed for reasons of Misconduct, the Employer is asked to provide […] whether such action or omission violated a provision of the Contract of Employment…” (NB: Employers are required to cite Contract violations‽)
And Vavilov’s requirement for ‘Reasonable Decisions’ re. ‘Common Law’ involves: 18
(¶111): “Where a relationship is governed by Private Law [{i.e. Employment Contracts}], it would be unreasonable for the ADM to ignore that Law in adjudicating the Parties’ Rights...”
EI ADMs are truly engaging in legal gymnastics in their attempt to avoid the obvious: the legally requisite process – along with decades of historical precedence – requires detailed Fact-Finding. (Examining Employment Contracts is deemed an essential step…)
To further their hypocrisy, I’ve found several SST-AD Decisions (from multiple AD TMs) where they explicitly mention that the Appellants could have legally filed their CBAs as evidence (with GD) and argued that the COVID-19 Vaccination ‘Policies in question violated their Contracts’. I did both! (Ironically, they all also cite KVP as justification.)’
Finding [8]: Did not file a CBA, but could have & then Argued the Policy violated it…
2023 SST 31: SS v. CEIC [¶86-87], 2023 SST 63: TH v. CEIC [¶45-47],
2023 SST 128: MW v. CEIC [¶69-71], 2023 SST 183: TH v. CEIC [¶80],
2023 SST 671: MV v. CEIC [¶10, ¶41-42], 2023 SST 682: SJ v. CEIC [¶39-40, ¶44]
2023 SST 807: NG v. CEIC [¶35-36, ¶40], 2023 SST 887: CD v. CEIC [¶29-30, ¶35]
Finding [2]: Unilaterally applied KVP to Justify MVP [Policy] regardless of CBA…
2023 SST 348: AG v. CEIC [¶29-33], 2023 SST 675: GM v. CEIC [¶46-47]
And one more ‘insult to injury’: this TM (Janet Lew) actually applied the CBA to KVP!
2023 SST 99: KM v. CEIC [¶29, ¶34-37]
[¶29]: “… The Supreme Court of Canada has endorsed the KVP Test which means it is good law that should be applied.” (FN7: Citing: ‘Irving’ [2013 SCC 34])
In total, here are 11 C19-MM Cases where SST-AD TMs ruled that the Appellant could have filed their CBA & used it to argue for KVP non-compliance – something I did.
(So ADMs can cite CBAs & KVP to justify Dismissing Cases, but it’s ultra vires for us‽)
Aside from the obvious breach of Natural Justice (Procedural Fairness) – and astounding hypocrisy – this demonstrates our reality: until the unprecedented [en banc] CEIC v. AL Decision (2023 SST 1032) codified injustice, TMs recognised that examining CBAs (Private Law) & considering KVP (Common Law) was part of ensuring they made ‘reasonable’ Decisions.
(As another interesting Side-Bar, all the aforementioned SST Decisions affirming the requisite use of CBAs & KVP are all Templatised. (cf. Error #14: Atrium Templates)
Lastly, by using vires (Jurisdiction) to Dismiss my CBA’s clear contractual ‘Terms of Employment’ – and ignoring KVP’s legitimate application – both TMs were tacitly finding that this new, non-union-ratified corporate Policy superseded both in authority. (i.e. ‘granted’ themselves the right to ‘break the law’, merely by ‘writing a policy’ saying so…)
And they both did so by invoking Management Rights – after ruling that the CBA which contained that ‘source of authority’ was inadmissible into their decision-making process.
As a corollary yet to be explicitly stated: the operative definition of ‘Misconduct’ in the EI-context is a ‘breach’ of an ‘express or implied’ ‘duty’ based in (or ‘arising’ from) the ‘employment contract’. This was apparently codified in Bellavance (2005 FCA 87 [¶8]).
This definition has been used 300+ times since then, including 15+ in Court (FC[A]). 19
By definition, determining the veracity of this statement requires considering some part of that Contract/CBA – the part submitted by the Employer – who is never told that their submission (based on specific CBA Terms) is ultra vires or otherwise inadmissible.
(Q: Is ‘overstepping’ or ‘misusing’ Management Rights considered a ‘Contract Breach’?)
Fact: There is no duty regarding any medical treatment found anywhere in our contract – express or implied – and the only citation is a new, non-union-ratified (and successfully Grieved & Arbitrated ‘unreasonable’) corporate Policy that explicitly advocates for Lock-Outs to compel (coerce?) compliance. This clearly violates the Canada Labour Code (§88.1), is both Prohibited & Nullified by our CBA (§3.01, §5.01, §5.05, §22.02) & violates the first two KVP Test Requirements advocated by our Supreme Court (to determine policy ‘validity’).
Is this really the basis on which I’m being found ‘guilty’ of ‘Misconduct’‽ Reasonably‽
Purolator has virtually limitless potential when designing & managing their internal controls, policies & procedures. Their only limitation is self-imposed (within the CBA): their practices (a) must be Lawful & (b) must Comply with our mutually agreed-upon Contract – which is exactly what has been codified in SCC Jurisprudence for decades…
I am not asking this Court to ‘overturn’ anything here; quite the contrary. Respectfully, I am only expecting this honourable Court to recognise the obvious: that legally speaking, the Rule of Law – and our CBA – demand that prospective corporate Policies must meet these two prerequisites before they can be enacted – much less enforced – and in this case, this Policy fails both requirements. And their only justification for this unlawful, breach of contract is that “‘our policy says’ we have the right to do this… [to break these laws]” This is both Absurd & [patently] Unreasonable.
Application
There are many serious problems with this Decision-Making process, comprised of several different errors – each one deserving to be Quashed. (their combined weight‽)
Employment Contracts: CBAs form the foundation of every Employment relationship; they are what legally bind the Workers to Policy adherence. Ignoring this legal fact in EI Benefits adjudication is unreasonable. Only selectively applying partial CBA Terms is worse yet. It is objectively unfair to hold Workers to Contract Compliance while the Employers blatantly violate it – and the Law. And when the CBA itself explicitly requires (or prohibits) something, to ignore that fact in decision-making is also unreasonable.
Management Rights: Cannot reasonably overrule Contracts, Common Law & applicable Legislation. That would violate the Rule of Law. These Rights only exist due to these instruments – and cannot be separated from them. Therefore, it’s patently unreasonable to cite ‘Management Rights’ as a legitimate excuse to Breach the Contract, Violate a Common Law Principle, or Break the Law, while simultaneously claiming these are all ‘ultra vires’. (This Decision does all three – while erroneously citing Jurisdiction.)
Citing ‘Management Rights’ while simultaneously claiming that Employment Contracts are ‘ultra vires’ raises Jurisdictional Grounds for Review concerns under FCA §18.1(4)(a).
Including allegations that Workers violated Policies & Contracts, while excluding evidence that the Employers did the same (or worse) first raises legitimate questions about ‘Procedural Fairness’ per §18.1(4)(b).
This Decision contained several Errors in Law, inter alia, misapplying CBA Terms, using Nullified corporate Policies, and elevating Management Rights above their superseding Contracts – even applicable Legislation. These Errors all meet §18.1(4)(c).
Lastly, explicit claims about the Validity & Admissibility of specific Contracts & Policies represent Factual Findings, meaning incorrect Decisions represent Errors in Fact under §18.1(4)(d).
Decision
For all these Reasons, we respectfully ask this Court to Quash TM Lafontaine’s Decision on the Grounds that his Decision is Unreasonable.
Sources:
Statutes
(‘CLC’) Canada Labour Code (RSC 1985 c.L-2) [https://CanLII.ca/t/7vhv]
https://laws-lois.justice.gc.ca/eng/acts/l-2
CLC §3, §88.1: Lock-Outs Prohibited (CanLII)
CLC §166-68: Application (Legislated CBA Terms)
(‘EIA’) Employment Insurance Act (SC 1996, c.23) [https://CanLII.ca/t/7vtf]
https://laws.justice.gc.ca/eng/acts/E-5.6
EIA §29(c): ‘Just Cause’ Analysis (CanLII)
EIA §30-§34: Disqualification & Disentitlement (CanLII)
EIA §49(2): Benefit of the Doubt (‘Burden’) (CanLII)
EIA §51: Information (Rules of Evidence) (CanLII)
Jurisprudence
2019 SCC 65: Canada (MC&I) v. Vavilov (‘Vavilov’ [¶111])
2006 SCC 2: Isidore Garon v. Tremblay; Fillion v. SNEGQ (‘G&F’ [¶144-48])
2013 SCC 34: CEPU Canada: Local #30 v. Irving Pulp & Paper (‘Irving’: ¶24-27)
(CEPU: Communications, Energy & Paper-Workers Union of Canada)
2013 NBCA 13: Asurion Canada Inc. v. Brown & Cormier (‘B&C’ [¶28])
2017 SCC 55: Assoc. of Justice Counsel v. Canada (AG) (‘AJC’ [¶20-21])
Labour Arbitration
1965 (ON-LA) 1009: LSWU: Local #2537 v. KVP Co. Ltd (‘KVP’ [p.85])
(LSWU: Lumber & Sawmill Workers’ Union)
2023 (CA-LA) 120937: Teamsters: Local #31 v. Purolator Canada (‘Glass’ [¶565-79])
(Arbitrator: Nicholas Glass; Date: 2023-12-14)
2025 BCSC 148: Purolator Canada v. Canada Council of Teamsters (‘Teamsters’ [¶191])
(Justice: Bradford Smith; Date: 2025-01-30)
SST Decisions
2023 SST 1093: DA v. CEIC [GE-23-740: 2023-06-08] (‘DA-740’ [¶68, 74, 79, 90f, 99])
2024 SST 26: DA v. CEIC [AD-23-694: 2024-01-09] (‘DA-694’ [¶11f, 35f, 38, 40, 43, 49])
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])
#1: Nullified Policy & Misused CBA ([P16]: p.255-58 [ADN6-13..16])
(2023 [CA-LA] 120937) Teamsters #31 v. Purolator Canada; Arbitrator: Nicholas Glass (2023-12-14)
(2025 BCSC 148) Purolator Canada v. Canada Council of Teamsters; Justice: Bradford Smith (2025-01-30)
Purolator’s [‘SWP’] Policy has already been ruled ‘Unreasonable’ (as of: 2022-07-01) in federal Labour Arbitration – and upheld upon Judicial Review. Covered Employees have been ordered ‘Back-to-Work’, with an outstanding Back-Pay Award currently worth ~$100M+.
(‘CBA’) Collective Agreement: §3.01, §5.01, §5.05, §22.02 ([D01]: p.358-61, p.423 [RGD8-75..78, RGD8-140])
(‘DA-740’) 2023 SST 1093: DA v. CEIC: [¶79] in my GD Decision, on Appeal to SST-AD.
(‘DA-740’ [FN:54]) This citation also [mis]cited an FCA Case: (2010 FCA 314: ‘Lemire’)
This is yet another example of the problems with using ‘Error #14: Atrium Decision Templates’.
This legally erroneous template was used to Deny 14x Claimants their EI Benefits. (CanLII)
1974 SCC 12 (‘McLeod’), 2003 SCC 42 (‘Parry Sound’) [¶25-32], 2006 SCC 2 (‘Garon & Fillion’) [¶145-46], all hold that ‘Management Rights’ (and ensuing corporate Policies) cannot break binding Legislation, nor can it be [mis]used to violate Employees’ Statutory Rights.
1965 (ON LA) 1009 (‘KVP’) [p.85], 2008 ONCA 327 (‘Wronko’) [¶32-36], 2013 NBCA 13 (‘Brown & Cormier’) [¶26-28], 2013 SCC 34 (‘Irving’) [¶24-26], all hold that Employment Contracts cannot be unilaterally subject to new Terms (or Policies) without Consent & Consideration first – or ensuring that they are both Lawful and Compliant with the remaining Contract Terms.
2006 SCC 2 (‘Garon & Fillion’) [¶144-48]. 50 years ago, a SCC Case (1974 SCC 12: ‘McLeod’ v. Egan), initiated the principle that Employment Contracts cannot violate applicable Laws. 2003 SCC 42 (‘Parry Sound’) [¶25-32] and this Case (Isidore Garon v. Tremblay; Fillion et Frères v. SNEGQ) expanded & codified this principle. Collectively, they have been cited over 2500 times across Canada (including QC).
(‘KVP’) 1965 (ON LA) 1009 [p.85]. This precedent was established in the 1965 Ontario Labour Arbitration case: “Re: Lumber & Sawmill Workers’ Union [‘LSWU’], Local #2537 v. KVP Co. Ltd.” It defined the six requirements which must all be met before an employer can unilaterally impose a new policy (‘rule’), without union ratification first. (or Consideration)
(‘Irving’) 2013 SCC 34 [¶24-27]. Our SCC enshrined KVP as binding precedent in ‘CEPU Canada #30 v. Irving Pulp & Paper’. (CEPU: Comm., Energy & Paper-Workers Union of Canada)
(‘Brown & Cormier’) 2013 NBCA 13 [¶28]. This precedental Case (‘Asurion Canada v. Brown & Cormier’) listed [essentially] the same six principles as KVP for determining ‘Misconduct’.
(‘Glass’) 2023 (CA LA) 120937: Teamsters #31 v. Purolator Canada (¶74-80)
(‘Glass’) 2023 (CA LA) 120937: Teamsters #31 v. Purolator Canada (¶569-75)
(‘DBEP’) [ESDC]: Digest of Benefit Entitlement Principles, Ch.21 (‘Evidence or Proof’)
This published EI Policy Manual is based upon binding Jurisprudence: §21.2 (‘Proving Facts’)
(‘Bellavance’) 2005 FCA 87: Canada (AG) v. Bellavance [¶8]. (CanLII Search Query: 300+)