(#5) Internal Logic & [in]Consistency :: Justice 4 EI Misconduct
(Problem #2: Error #5) Modified 'Misconduct Test' Contains Logical Fallacies
(#5) Internal Logic & [in]Consistency: ‘Misconduct Test’ Contains Logical Fallacies (Justice 4 EI Misconduct)
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Legal Principles: Error #5 (Internal Logic & Consistency)
Fundamental Questions (6): #3-#8
Grounds of Review (5): FCA §18.1(4)(a-c,e-f)
Vavilov Principles (6): Internally Coherent Reasoning Process
(a) Governing Statutory Scheme (¶108-10)
(b) Other Statutory or Common Law (¶111-14)
(c) Principles of Statutory Interpretation (¶115-24)
(d) Evidence Before Decision Maker (¶125-26)
(f) Past Practices & Past Decisions (¶129-32)
(g) Impact of Decision on Individual (¶133-35)
Error #5: Internal Logic & [in]Consistency
(Vavilov [¶102-04]): “To be reasonable, a Decision must be based on reasoning that is both rational and logical… A Decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the Decision was based on an irrational chain of analysis… Similarly, the internal rationality of a Decision may be called into question if the reasons exhibit clear Logical Fallacies, such as circular reasoning, false dilemmas, unfounded generalizations, or an absurd premise.”
Facts & Issues
Logical Fallacies: What happens when Decisions contain Logic Errors? And when ‘precedental’ Common Law Tests also contain these same Logic Errors? What about when EI Adjudicators [mis]use these Errors to override Statutory Requirements?
[Potentially] Falsified Evidence: Can EI Adjudicators Ignore this Factor? Are there legitimate excuses for Falsified Evidence? Can it still be Used in Decision-Making?
Authorities
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 the ‘Unreasonableness’ section. 1
The Primary underlying Reason for Denying EI Claims in ‘C19-MM’ (Mandate Misconduct) Cases is the modified Common Law 4-Part ‘Misconduct Test’.
This test contains the following elements: Did the Claimant?
① Willfully ② Choose to Ignore ③ a Clear Policy ④ Knowing the Consequences
This ‘Test’ – and several Federal J.R. Cases relying on it – have been widely cited (~2500 times) in C19-MM Cases. (Here is a breakdown of the most common ones):
2005 FCA 87: Canada (AG) v. Bellavance (331 Citations: 100 + 231) | (¶3 | ¶10-11)
2007 FCA 36: Mishibinijima v. Canada (AG) (849 Citations: 524 + 325) | (¶32 | ¶2, ¶19)
2007 FCA 107: Canada (AG) v. McNamara (593 Citations: 329 + 264) | (¶9 | ¶21-23)
2010 FCA 314: Canada (AG) v. Lemire (110 Citations: 63 + 47) | (¶21 | ¶5, ¶19)
2016 FC 1282: Paradis v. Canada (AG) (610 Citations: 367 + 243) | (¶15-16 | ¶1-2, ¶34)
For reasons I will discuss more in the next section ({Problem #3: ‘Cited Inapplicable Case Law’}), this Test is not applicable in these situations – and serves as pretextual grounds for Abuse of Process (re. Procedural Fairness) – in addition to the two Logical Fallacies.
This Test contains an unstated underlying fundamental assumption (i.e. an ‘Unjustified Premise’): that the Conduct itself is somehow worthy of the ‘Misconduct’ label. In the cited Cases, that assumption is reasonable. However, that is not always true.
In Paradis & McNamara, the Claimants both Failed Drug Tests, which obviously violated their Contracts – and Provincial Health & Safety Legislation.
Mishibinijima had serious Attendance problems [‘persistent absenteeism’] (due to his alcoholism), with many warnings on record. This also violated his Contract. (¶19, ¶32)
And Bellavance & Lemire both Breached their Contracts by breaking government requirements. Lemire was selling contraband cigarettes at work (which is a Criminal Code Offence) (¶21), while Bellavance was a federal government employee who repeatedly broke the HRDC ‘Code of Conduct’ (¶3,11) by “intervening personally in the processing of EI cases” and “giving preferential treatment to some of his former employees & certain family members” – which also borderlines on criminal conduct.
In all of these Cases, the Claimants breached their Employment Contracts – and most of them also broke various government requirements.
That is very different from these C19-MM Cases, because the Conduct in question is fundamentally different in nature. In SST-cited Cases, their Conduct violated contractual obligations that were Lawful expectations – and they admitted such in the Record.
In our Cases, the Policy requirement itself was both unlawful and violated our Contracts.
We did not ‘Breach a fundamental Term’ nor an ‘express or implied Duty’ found in our Employment Contracts. We were merely expecting that our CBAs & ‘Laws of the Land’ would be upheld – in addition to our Constitutional Rights to ‘Security of Person’ & ‘Enjoyment of Property’. (Partial list of legal principles: Informed Consent, Privacy of Health Records, Lock-Outs & Constructive Dismissal, Breach of Contract, et al)
Medical Mandates: Experimental Treatments
Coercing someone into taking an experimental medical product against their will is patently unlawful – as is withholding their livelihood when they say ‘No’. It is not ‘Misconduct’ to not participate in global medical trials. Informed Consent is the bedrock of western Medicine & violating it often ends with practitioners losing their license.
(It is also well-established that expensive torts & criminal charges [Assault] can also ensue.)
Here is the Official Database of various ‘Phase 3: Clinical Safety Trials’ for ‘COVID Vaccines’ in Canada. (Hosted by: https://ClinicalTrials.gov) As detailed above ({Overview: ¶5, & FN:6-7}) and in my Affidavit (¶17-22), these ‘immunisations’ were – and still are – experimental. Major Clinical Safety Trials are still ongoing and very little interim results have been published in Canada, none of which passed Quality Control (as of this writing [2024-12]).
Clinical Trials Database: https://tinyurl.com/ClinicalTrials-C19Vaccine-CA
(NCT-04702945) ‘CCEDRRN’: https://ClinicalTrials.gov/study/NCT04702945
(NCT-04368728) ‘BioNTech’: https://ClinicalTrials.gov/study/NCT04368728
(NCT-04834869) ‘CoVaST’: https://ClinicalTrials.gov/study/NCT04834869
( NB: I hereby incorporate {‘Side-Bar ‘J’: Publicly-Important Vaccine Data’} by reference. It highlights three ‘official’ documents that contain key evidence about the ‘Safety & Efficacy’ of these experimental immunisations. Most of this data – or their primary sources – were available to relevant parties in early 2022. Much of it comes from authoritative sources that meet the Rules of Evidence. )
Argumentation
How can exercising one’s constitutionally-protected right to say ‘No’ to participating in a medical Clinical Safety Trial – or taking that same experimental product (for which zero Safety Studies were published in Canada at the time) outside of the monitoring included in the Clinical Trial context – possibly constitute ‘Misconduct’‽ (Unless one is referencing the Employer’s Misconduct by coercing this participation using Lock-Outs…)
Furthermore, it has already been demonstrated that this Policy – and my Employer’s actions – violated, inter alia, the Canada Labour Code and multiple Terms in our CBA.
(Many Policies also violated various Provincial Statutes across the country…)
This is all that matters: I have already proven that Purolator acted ‘Contrary to Law’.
This [quasi-]Constitutional issue – although important – is not necessary to prove to Quash this Decision.
(Yes, I recognise that this is claimed to be ultra vires – but it does raise Justice considerations of serious National Public Importance: as the underlying premise is that thousands of Canadians had their Employment & Livelihood Ceased en masse because they Declined to partake in-trial medical treatments: mRNA Injections are Experimental. They have never been Approved for Human Use prior to this Pandemic – and every prior attempt to obtain Approval Failed because Experimental mRNA Gene Therapies were found to be objectively unsafe during their Clinical Trials. What Changed‽)
History will Judge what happened during this Pandemic – Did Justice Prevail?
Circular Reasoning
Back to the composite Misconduct Test. It assumes that the contravened Policy – and its underlying conduct – is worthy of the ‘Misconduct’ label. In the oft-cited Cases, it was. But what happens when it’s not? It then becomes Absurd…
Vavilov (¶104) states that Logical Fallacies, Circular Reasoning, and other Absurdities constitute incoherent reasoning – which are legitimate Grounds to Appeal – and can lead to Quashing Decisions as unreasonable. My specific Case has multiple Absurdities. The Decision I’m appealing also contains unaddressed logical fallacies.
It is circular reasoning to rule that “we cannot consider your Employer's unlawful actions because you [allegedly] committed Misconduct” – when the only reason I'm supposedly ‘guilty’ of Misconduct is because of my Employer’s unlawful actions.
Using this flawed logic, it would be impossible to qualify for EI Benefits any time an Employer decided to falsely code ‘Misconduct’ (‘M’) on an ROE – even Criminal Employers – since ‘M’ automagically means ‘no questions asked’, ‘no investigation allowed’ & “we cannot consider your Employer’s law-breaking – it’s ultra vires.” (Merely because they allege ‘Misconduct’‽ Something which supposedly cannot be considered, despite the Act?)
( NB: Their ‘Home Statute’ [EI Act §29(c)(xi)] requires this specific ‘Just Cause’ Investigation – EI ADMs must ‘fact-find’ before deciding to ‘Disentitle’ or ‘Disqualify’ any EI Claimants. )
This is also an Absurd Premise: If an ROE is coded anything else but ‘M’, then Legislative Intent requires investigating an Employer’s unlawful actions. – But: Anytime ‘Misconduct’ is claimed (not proven), Employers are free to act unlawfully & it's magically ultra vires to consider the exact same facts‽ ( Notwithstanding EIA §29[c][xi] ‽)
This is especially absurd when it's the unlawful conduct itself that ultimately resulted in the falsified ‘M’ coding – which itself is a Criminal Code Offense (CC §398).
This is determining ‘Guilt’ in alleged Misconduct on the basis of an Employer’s unlawful actions, while simultaneously presuming to [mis]use that ‘Guilt’ to avoid the statutory requirement to investigate these unlawful actions. One cannot reasonably use the fact that an Employer claims (‘alleges’) Misconduct to determine (‘rule’) that it is ultra vires to consider that same Employer’s egregious unlawfulness solely because “Misconduct negates that necessity.” (This absurdity actually prevents its possibility!)
This is both a ‘Faulty Premise’ logical fallacy (specifically ‘Petitio Principii’) and ‘Special Pleading’ – both of which Vavilov deems unreasonable…
Practical Examples
Compare this with our two examples: 2 An Employer institutes two unlawful Policies requiring: (1) 24-Hour-straight-shifts and (2) weekly sexual ‘favours’ from their subordinates. Then, whenever anyone [rightfully] refuses to comply, they are Suspended with ROEs coded ‘M’ for Misconduct. How could they possibly Qualify for E.I.? They meet all four Test Requirements. Notwithstanding the Policies’ Illegalities:
[they]: ① Willfully ② Breached ③ a Clear Policy ④ Knowing the Consequences
This ‘4-Part Test’ (and its underlying logic) means, whenever anyone [rightfully] refuses to comply with an unlawful Policy, they are Suspended with ROEs coded ‘M’ for Misconduct. How could they ever Qualify for EI? They meet all 4 Test ‘Prongs’…
Every attempt to Appeal these Unjust Decisions would be met with the same blanket rebuttal: “the Employer’s conduct is not a relevant consideration.” (re. Paradis [¶30], et al)
This is not Justice & it clearly contradicts Parliament’s Legislative Intent. (cf. Error #1)
Important Note: This ‘4-Part Misconduct Test’ is not specifically defined anywhere in Jurisprudence – [that is] these four parts are not explicitly defined together as a ‘Test’.
They are each independent requirements found in different Cases that, when combined, make up the elements necessary for a finding of ‘Misconduct’. (This matters because Claimants have ‘challenged the validity’ of this ‘Test’. 3 Since it is not explicitly defined as such, it does not need to ‘change’. Rather the individual components must be examined in-context to see whether they logically apply, given the factual & legal circumstances. In these situations – C19-MM Cases – they cannot reasonably stand together on their own…)
Put differently: all four elements must be true to sustain a Misconduct finding. If any component is missing, there cannot be Misconduct. There are situations where specific – and unusual – circumstances may impact various elements. This ‘Test’ is context-specific & must maintain logical coherency given the specific facts of the Case.
Logical Fallacies
Combining this ‘4-Part Misconduct Test’ with the requirement to intentionally ignore the Employer’s actions creates an inherent logical fallacy, due to the assumption that all claims of Misconduct really are legitimate. Here is the relevant ‘syllogism’:
A: The Employer Terminates a Worker, Claiming Misconduct.
B: In Misconduct Cases, Apply the Test & Ignore the Employer.
C: The Claimant meets All 4 Parts of the ‘Misconduct Test’.
Therefore: The Claimant is ‘Guilty of Misconduct’ & Denied EI.
As should be obvious, the Major Premise (‘Misconduct’) was not proven due to the word: ‘Claim’. Misconduct has not been proven, because the 4-Part Test assumes the conduct in question really is Misconduct – without any Fact-Finding into whether the “Employer’s conduct was ‘Contrary to Law’.” (re. EIA §29[c][xi]) And Vavilov is clear: absurd & unjustified premises are unreasonable. (Real fact-finding would obviously prove this…)
To verify this analysis, conduct the Substitution Test on this Syllogism:
(Mr. X ‘only’ worked 5x 12h shifts: 12≠24h. Are 60h work-weeks ‘Misconduct’‽)
A: The Employer Terminates ‘X’, Alleging ‘Only 12-Hour Shifts’. (Not 24h)
B: In ‘12h Shift’ Cases, Apply the Test & Ignore the Employer.
C: The Claimant meets All 4 Parts of the ‘12h Shift’ Test.
Therefore: X is ‘Guilty’ of ‘Working 12h Shifts’ & Denied EI.
To further demonstrate the absurdity of this [il]logical construction, we can apply this same Substitution Test to the other sample Policy [listed above]:
(the requirement to provide ‘weekly sexual favours to your supervisor’ or ‘face Suspension’.)
A: The Employer Terminates ‘X’, Alleging ‘No Weekly Favours’.
B: In ‘Favours’ Cases, Apply the Test & Ignore the Employer.
C: The Claimant meets All 4 Parts of the ‘Weekly Favours’ Test.
Ergo: X is ‘Guilty’ of ‘Not Prostituting Themself’ & Denied EI. [Why‽]
They: ① Willfully ② Violated ③ a Clear Policy ④ Knowing the Consequences
This is the ‘Petitio Principii’ Logical Fallacy (aka ‘Begging the Question’). It assumes the truth of the Premise within the Body of the Syllogism, therefore appearing in the Conclusion still untested & unproven. (e.g. ‘only’ working 12-hour shifts [not 24] is ‘Misconduct’, meriting EI Benefits Denial – when this violates Provincial Labour Laws‽)
‘Passing’ all 4 Parts of the Common Law ‘Misconduct Test’ still leaves the fundamental question about whether the specific act [or omission] in question really is ‘Misconduct’ unanswered. This Test [in its current logical form] provides no meaningful information about the nature of the [mis]conduct itself – it only addresses the worker’s compliance. Meaning its corollary requirement to wilfully ignore the Employer’s ‘side of the equation’ still violates the statutory requirement to Fact-Find for Just Cause.
Did they act ‘Contrary to Law’ or make ‘Significant Changes’ to the Contract? Without answering these questions (specifically regarding the contravened Policy), this Misconduct Test is meaningless. (Otherwise, you must accept the unreasonable absurdity that not prostituting yourself is misconduct deserving of Termination – and the compounded injustice of EI Denial – merely because “the Policy says so…”)
It is Absurd to hold that Employers can grant themselves the Right to break the law – merely by ‘issuing’ some ‘policy’ saying so – arrogating such ridiculous claims to power.
Documents authorised by Officers of a Corporation cannot supersede the Authority of Parliament – or the Legislatures of the Provinces… ( Absurdity is Unreasonable. )
This construction also meets the definition of a ‘Special Pleading’ Informal Fallacy.
The EIA §29(c)(xi) requires Adjudicators to examine the Employer’s conduct, to see whether anything was ‘Contrary to Law’. Excusing this statutory requirement merely ‘because an Employer alleges Misconduct’ is exactly Special Pleading.
IF they are doing nothing wrong, then it makes no difference when their side of the equation is investigated – so do it – it’s law. But, when they are breaking the law, this ‘rule’ (‘Test’) gives them an ‘escape hatch’ to avoid accountability. One which cannot be overridden – all they must do is put an ‘M’ in Box 16 of the Workers’ ROE.
Criminal Code (§398)
Box 22 on ROEs is a sworn Certification confirming that the Reason Code listed is True:
[ROE: Block 22]: “I am aware that it is an Offence to knowingly make False Entries and hereby Certify that All Statements on this Form are True.”
And the Criminal Code states at: §398 [‘Falsifying Employment Record’]
[CC §398]: “Every one who, with Intent to Deceive, Falsifies an Employment Record by any means […] is Guilty of an Offence Punishable on Summary Conviction.”
Depending on their ‘Intent’, this act can often qualify as a Criminal Offence. (§398)
Does this also constitute: “acted by reason of fraud or perjured evidence’? (FCA §18.1[4][f])
In my specific case, we have a (senior Executive) pleading under oath that we were all on ‘Approved Administrative Leaves of Absence’ – and that we were not being ‘Disciplined for Misconduct’ or Insubordination. Yet, (some Executives) directed an ‘M’ coding in Box 16 on my ROE – and (an Executive) told an SC/EI Investigator that I was “Dismissed based on the Covid-19 Mandates.” 4 ,5
(Other Logic Errors)
Before I leave my arguments on Logic Errors & Incoherencies, there are two other incidences of such unreasonableness found below at: ( {‘Problem #3 [Side-Bar]: Redefinitions & Logic Errors’} & {‘Error #7: Pandemic Era Jurisprudence’}).
I will wait to explain them for the sake of logical flow, but they need to be incorporated here by reference…
Application
Parliament’s Legislative Intent is clear. The Hansards (Transcripts) of Parliamentary Ministers, MPs & Senators – and the sworn testimony of many senior civil servants responsible for researching & drafting Bills C-21, C-105 & C-113 – are all equally clear:
When Deciding EI Benefits Cases, they require Adjudicators to Fact-Find for whether the Employer acted ‘Contrary to Law’ – or made ‘Significant Changes’ to key Terms in the Employment Contract (thereby ‘Breaching’ it).
Claiming to use a modified ‘Misconduct Test’ composited from multiple Cases to override the EI Act is ‘Special Pleading’. The ADM’s Home Statute always takes precedence over Common Law Jurisprudence during Conflicts. [and]
The 4-Part Test itself ‘Begs the Question’ (called ‘Petitio Principii’) because its logical structure contains an ‘Unjustified Premise’.
These are both ‘informal’ Logical Fallacies, and per Vavilov, both constitute Unreasonableness.
Finally, combining these two Logical Incoherencies with an Employer who enacts unlawful Policies – and subsequently ‘covers their tracks’ by falsely claiming the ‘worker committed Misconduct’ – always results in an unjust absurdity.
These Falsified ROEs could also be Criminal Offences (§398), which also grant EI Claimants ‘Just Cause’ for their Employment Separation. (EIA §29[c][xi])
On what grounds can the SST (or CEIC) reasonably refuse to address an Employer’s unlawful actions – and breach of contract – in favour of a logically incoherent Test containing an unjustified premise‽
Additionally, the primary reason why the ‘Misconduct Test’ was selected in my case, was due to the ‘M’ Coding on my ROE. Yet, while (Executives) directed & confirmed this to SC/EI, (Exec) swore it was not true during Arbitration. This meets FCA §18.1(4)(e).
Decision
We respectfully ask this Court to Quash TM Lafontaine’s Decision on the grounds that logical fallacies inherent to [both] their reasoning process[es] renders their Decisions unreasonable.
(NB: More importantly, the modified ‘Misconduct Test’ itself, composited from various Jurisprudence, needs to be modified in two ways. It needs to:
(1) Comply with the EIA §29(c), specifically ‘Contrary to Law’ Analysis, [and]
(2) Logically account for the [occasional] operating condition wherein the Policy is itself unlawful.
On this specific ground, TM Lafontaine was ‘only following precedent’ – notwithstanding that he was simultaneously violating the EI Act – as with [almost] every other C19-MM Case.
This is a widespread problem that has unjustly deprived thousands of unlawfully, wrongfully terminated Canadians of their EI Benefits – during a ‘global Pandemic’…)
Sources:
Statutes
(‘CC’) Criminal Code (RSC 1985 c.46)
https://laws-lois.justice.gc.ca/eng/acts/c-46
CC §398: Falsified Employment Records
(‘EIA’) Employment Insurance Act (SC 1996, c.23)
https://laws.justice.gc.ca/eng/acts/E-5.6
EIA §29(c): ‘Just Cause’ Analysis (CanLII)
Jurisprudence
2019 SCC 65: Canada (MC&I) v. Vavilov (¶111)
2005 FCA 87: Canada (AG) v. Bellavance (¶3 | ¶10-11)
2007 FCA 36: Mishibinijima v. Canada (AG) (¶32 | ¶2, ¶19)
2007 FCA 107: Canada (AG) v. McNamara (¶9 | ¶21-23)
2010 FCA 314: Canada (AG) v. Lemire (¶21 | ¶5, ¶19)
2016 FC 1282: Paradis v. Canada (AG) (¶15-16 | ¶1-2, ¶34)
Scientific Studies
Clinical Trials Database: https://tinyurl.com/ClinicalTrials-C19Vaccine-CA
(NCT-04368728) ‘BioNTech’: https://ClinicalTrials.gov/study/NCT04368728
(NCT-04702945) ‘CCEDRRN’: https://ClinicalTrials.gov/study/NCT04702945
(NCT-04834869) ‘CoVaST’: https://ClinicalTrials.gov/study/NCT04834869
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])
(‘DA-694-Args’) Unreasonableness #1 ([P16] p.246-47), cf. Affidavit: ¶69-74 (p.61-63)
See Argumentation for ‘Falsified Evidence’ at: {Error #9: Purolator’s Falsified Evidence}